Wednesday, April 14, 2010

How to Amend a Discharged Chapter 7 Bankruptcy

By Anthony Briguglio, Contributing Writer

You've been through a Chapter 7 bankruptcy and gotten your discharge. Your "fresh start" is underway. A few days later, the phone rings; it's a bill collector. Or the mail comes; it's a collection letter. You were sure you were through with the phone calls and the letters, and that your discharge prevented them from hounding you. Then you realize the call or the letter is for a debt you forgot to include in your bankruptcy. After you get past the "What was I thinking?" stage, amending your bankruptcy is the solution.

STEP 1:  Reopen your closed bankruptcy case by filing a motion for leave to amend your bankruptcy petition. This is done by leave of court, and the way to obtain leave of court is by a "motion." Find the website of the bankruptcy court for the district in which your discharge was issued. Most court websites have a form bank where you can download forms, including a motion to reopen the case to amend the petition (see Reference #2). If it is unavailable online, the clerk's office may have a form you can copy, or they might allow you access to the court's law library. While you are researching, locate a form "order" the judge can sign, granting the motion.
STEP 2:  Prepare an amended schedule on which the new information will appear. If your amendment is to add a creditor, the amendment will be to Schedules D, E or F, depending on whether the creditor is secured (a mortgage or car loan), priority (taxes, student loans, child support) or non-priority (credit cards, personal loans). If you are amending to add omitted property, the amendment will be to Schedule A (real property) or B (personal property). If the property you are adding is covered by an exemption, make sure to amend Schedule C (the exemption schedule) to assert the exemption.
STEP 3:  Assemble the motion package, pay the fee and file it with the clerk's office. Motion practice requires that a motion be filed, usually 30 days prior to the "return" date, so check with the clerk or the judge's chambers about available motion days and set the return date accordingly. In some districts, the motion may be done on "presentment," meaning that if there is no opposition, the motion will be granted, and the order signed, on the return date. Most bankruptcy filings are done electronically, by practitioners having a password issued by the court. Check with the clerk to be certain how paper filings are handled. You will need several additional copies of the motion papers to be served, by mail, upon the omitted creditor, the trustee and upon any party that appeared in your earlier bankruptcy proceeding. This can be determined by reviewing the PACER information of your case from the court's computer. Once you know whom to serve, mail copies to all of the necessary parties and certify to the court that this was done.
STEP 4:  Appear in court on the return date of the motion, if local practice requires. If you fail to appear on the return date, and an appearance was required, the motion will be denied, and you will have to start over, and maybe have to pay another filing fee. Once the Order is signed, mail a copy to the newly included creditor and certify that you did so to the court.