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Bankruptcy Code - what is it and do other authorities apply for bankruptcy?
- Bankruptcy Code: The Bankruptcy Reform Act of 2005 amended many sections of Title 11 of the United States Code (also called the Bankruptcy Code, Title 11, or 11 U.S.C.). These statutes will often be cited in a bankruptcy case by parties who are discussing various rights and duties.
- Bankruptcy Rules: Procedural rules regarding bankruptcy cases are found in the Federal Bankruptcy Rules of Bankruptcy Procedures (FRBP) at the US Courts website. You may also view proposed and pending rule amendments. In addition, the Cornell Law School posts an unofficial version (which may not always be current).
- Local Rules: This court has local rules, that, together with the administrative orders also apply in bankruptcy cases in the Southern District of Florida.
- Related Laws: Other laws of federal, state, or municipal governments may be applicable in a bankruptcy because of a specific situation that may affect the debtor at the time a bankruptcy case is filed. Examples are family law, contracts, real estate transactions, unsecured loans, taxes, medical situations, personal injury, etc. Review the Bankruptcy Checklist to verify what situation applies to you.
Bankruptcy terminology - where can I find the definitions?
There are two glossaries available for review at the United States Court website:
You may also wish to refer to the Bankruptcy Terminology located on our Don’t Have a Lawyer page which provides a translation of the most commonly used terms in both Spanish and Creole.
Certified copy - how do I obtain a certified copy of a document or an entire case file?
Certified or exemplified copies of documents can ONLY be requested from the clerk’s office. The fee for copying and certifying is provided in the Judicial Conference Bankruptcy Court Miscellaneous Fee Schedule, posted on the court’s website. Because certification is intended to authenticate that a document is the official document and not an altered version, persons who presently require certified documents (e.g., sheriffs, banks, other courts who have access to PACER) may opt to view the documents directly by accessing the court’s database, instead of requiring paper certified copies. This will eliminate the possibility of the presentation of fraudulent documents.
Conventional (paper) filing - which local rules address conventional (paper) filing when electronic filing is not authorized, technically accessible, or where a waiver of the electronic filing requirement is requested?
The following Local Rules can be reviewed:
Copies - how do I get copies of documents?
There are two main ways to obtain copies:
A) Using Computer to Print Documents from CM/ECF PACER - Electronic docket information and images of all documents filed in a bankruptcy case or adversary proceeding may be retrieved and printed via the terminals located at each divisional clerk's office. Please review the Clerk's Instructions for Electronic Public Access Services.
B) Clerk's Office at Each Division – Copies may be ordered at the clerk's Office in person or by mail, and there is a search fee and a per-page fee. If ordered by mail, include a self-addressed, stamped envelope to return the copies. Please review the Clerk's Instructions for Obtaining Copies of Court Records.
Copies - how do I obtain copies of court documents filed in cases prior to October 17, 2005?
Copies of paper court documents in pending or recently closed cases filed prior to October 17, 2005, may be obtained from the clerk’s office at a cost of $0.50 per page. Paper case files are normally located in the clerk’s divisional office where the assigned judge is chambered.
Court Security - what identification do I need and what are the security restrictions for entering the court building?
All visitors to the court or clerk’s offices will need to present current, valid, government issued picture identification (driver’s license, state identification card, passport, or immigration card) for entry into the buildings. This has been mandated by the Department of Homeland Security for all visitors, including the public conducting personal business. Minors do not have to present picture identification if accompanied by an adult; however, unaccompanied minors must adhere to the rule. Those with no or unacceptable identification must be escorted by a government employee of the building to be granted access. Debtors appearing at their 341 meeting of creditors must also provide current valid government issued picture identification as described above when attending the scheduled meeting. (See also Local Rule 5072-2, Court Security).
Your cooperation and patience are appreciated.
Courtroom access - can CM/ECF or PACER be accessed in courtrooms and 341 meeting rooms?
PACER access terminals are available for viewing documents only, in all seven courtrooms and in all three clerk’s office public intake locations free of charge. However, the clerk’s office does not provide PACER access in 341 meeting rooms.
Courtroom behavior - is there information on how to act in the courtroom?
Yes, there are Guidelines for Courtroom Decorum availble to review. These guidelines will be strictly enforced at all times, whether or not the Judge is in the courtroom. Cell phones, beepers and any other device that makes noise must be turned off, or placed on vibrate, and may not be used, while court is in session. Court is in session at any time the proceedings are being recorded even if the Judge is not present in the courtroom.
Credit Counseling vs. Financial Management - what are the differences?
An individual debtor must complete TWO DIFFERENT CLASSES to obtain a discharge. The names for these courses are: 1) Credit Counseling and 2) Personal Financial Management. The courses are different in two ways: (a) when the class must be taken; and (b) what type of individual debtor must take the class. If a bankruptcy case is filed jointly, each spouse must take both classes and get their individual separate Certificates of Completion.
1) CREDIT COUNSELING, Before Filing For Bankruptcy – The Bankruptcy Code requires an individual debtor (not a business debtor) complete an approved course in Credit Counseling within 180 days before filing a bankruptcy case. There are very limited exceptions [see 11 U.S.C. 109(h)]. The approved course agency will provide a Certificate of Completion, but you are required to file the Certificate. Read this important warning notice [Spanish] [Creole] about the consumer credit counseling course you must complete before you file your petition.
2) PERSONAL FINANCIAL MANAGEMENT, Very Soon After Filing for Bankruptcy - In order to obtain a discharge of debts, an individual debtor (not a business debtor) must complete an approved course in Personal Financial Management within 60 days after the 341(a) Meeting of Creditors. The approved course agency will provide a Certificate of Completion, but you are required to file the Certificate.
Credit Report - how do I remove inaccurate information from my credit report, even if I have not filed for bankruptcy?
The U.S. Bankruptcy Court does not report or transmit data to the credit reporting agencies. Bankruptcy records are public record. Credit reporting agencies may collect this information and report it on their credit reporting services. Additionally, the Fair Credit Reporting Act allows credit bureaus to keep a bankruptcy on your credit record for up to ten years from the date of discharge (not the date of the filing of the case). The court is not responsible for deleting or removing information from consumer's credit files. Any disputes you have with a credit reporting agency must be resolved by you and that agency. The three credit reporting agencies are:
- Equifax Information Services LLC, (800) 829-4577, www.equifax.com
- TransUnion LLC, (800) 888-4213, www.transunion.com
- Experian, (800) 311-4769, www.experian.com
For more information about the Fair Credit Reporting Act or for information about disputing your credit report, visit the Federal Trade Commission or contact them at 877-FTC_HELP (382-4357).
Note: If your credit report indicates that you have filed for bankruptcy in the Southern District of Florida, but you have never filed for bankruptcy, you may request the clerk's office conduct a search of its bankruptcy records by submitting Local Form 85, Application for Search of Bankruptcy Records, along with the appropriate research and certification fees. You will receive a Certificate of Search that will verify whether a bankruptcy case was filed in this court. Contact the credit reporting agency FIRST to determine if this is a document that they will accept from you.
If a bankruptcy case was fraudulently filed without your knowledge or consent, you must immediately notify the court in writing so that a hearing can be scheduled to investigate the fraudulent claim. Only after the court receives your written correspondence, a hearing will be set which will require your appearance along with a valid government identification (e.g. drivers license).
Discharge - what is it?
A bankruptcy discharge releases the debtor from personal liability for certain specified types of debts. Additional information about a discharge (when it occurs, dischargeable debts, objections or revocations, etc.) can be found at the United States Courts website under Discharge in Bankruptcy – Bankruptcy Basics.
Filing - can anyone use CM/ECF to file any type of documents with the court?
Access to the full filing portion of CM/ECF is only available to authorized attorneys admitted to the Southern District of Florida Bar and who are qualified to practice before this court (Review Attorney Admissions). However, attorneys appearing under Local Rule 2090-1(C)(1) and creditors without attorneys [See Local Rule 5005-4(B)(3)] may become registered users with “limited” creditor filing privileges (Review New User Registration) permitting them to electronically file certain notices and other documents. In addition, any claimant or the claimant’s agent may utilize the ePOC program to submit a proof of claim form electronically, which does not require registration in CM/ECF [Local Rule 3001-1(A)(1)].
Filing Fees - what is it?
To complete certain transactions with the court payment of a filing fee must be received. Payments for filing fees, other than for payments by those permitted to pay with a credit card when filing electronically, must be remitted in the exact amount due for the fee owed and must be made in cash, money order or certified cashier’s check. Personal or business checks will not be accepted (see Local Rule 5081-1, Fees – Form of Payment). For more information visit Clerk’s Summary of Fees and Acceptable Forms of Payment.
Forms - where can I find the local forms, official bankruptcy forms, etc.?
Copies of all forms can be found at the U.S. Courts website under Forms and are further subdivided by category, for example: Bankruptcy Forms. Additionally, this court has adopted various local forms for use in filing documents in this court. If a local rule or administrative order directs you to use a specific local form, you must use the latest version of the form which is posted on this court’s web site. Visit our All Forms page to review the combination of forms that may be needed during the life of your case.
Fraud - whom do I notify of potential bankruptcy fraud?
Fraudulent activity may have been committed by a debtor, an insider of a debtor, a creditor, a trustee, an attorney or other professional, or a bankruptcy petition preparer. Fraudulent activity may include hiding assets, fraudulently transferring property, lying under oath, knowingly filing false affidavits or declarations, knowingly filing false proofs of claim, or knowingly providing false information. To report suspected bankruptcy fraud to the Department of Justice follow the instructions provided.
Judges Information - does each judge have a page for their individual procedures?
MMM (Mortgage Modification Mediation) document transmission - what are the requirements to create and transmit documents and information?
The court requires the use of an independent court approved secure online portal and document preparation software for the creation and transmission of documents and information. Please refer to the MMM Program page for the procedures regarding this requirement and the approved portal and software providers. The portal link provides additional information such as manual, set up guide, contact information, and FAQs. See also Section IV(C)(2) of the Mortgage Modification Mediation Program Procedures (MMM Procedures) regarding alternatives for pro se (self represented) debtors without computer access.
MMM (Mortgage Modification Mediation) fee - what if I cannot afford the fee?
A debtor who is unable to afford the mediator fee may qualify for pro bono representation under Section XII(3)(a) of the MMM Procedures found on the MMM program page.
MMM (Mortgage Modification Mediation) program mediators - where can I obtain a list of mediators?
Please refer to the MMM program page to review the procedures for selection or appointment of a mediator. In addition, if applicable for appointment a particular mediation in this court, names of mediators who accept MMM assignments are indicated on the list of court mediators. See also Section XII of the MMM Procedures regarding MMM mediators.
MMM (Mortgage Modification Mediation) statistics - where can I find statistics on MMM cases filed in this court?
Mortgage Modification Mediation (MMM) Program - has the court adopted such a program?
Yes. This court’s MMM program, adopted by Administrative Order 14-03, provides an opportunity for individual debtors to explore mortgage modification options with their lenders for real property in which the debtors have an interest or are obligated on the promissory note or mortgage. For further information visit the MMM program page which includes the procedures, eligibility requirements, and all related forms.
Motion - what is it?
A motion is a request to the court, stating the case number, case name, and specifically detailing the action you (the movant) wishes the Court to take. Anytime you want to ask the judge to do something you are supposed to file a motion not write a letter.
Personal information - what type should not be included in documents filed with the court?
Bankruptcy Rule 9037(a) establishes privacy protection for filings made with the court. If a party files a document containing information that should be restricted from public access (e.g., social security number, financial account number, date of birth, minor’s name), the party will need to file forms directing the clerk to restrict the unredacted document and pay the filing fee [see Local Rule 5005-1].
- Local Rule 5005-1(A)(3) sets forth the procedure for filing an ex parte motion to redact personal information.
Reaffirmation Agreement - what is it?
The reaffirmation agreement is an agreement between a chapter 7 debtor and a creditor that the debtor will pay all or a portion of the money owed, even though the debtor has filed for bankruptcy. In return, the creditor promises that, as long as payments are made, the creditor will not repossess or take back its collateral. This means that the debtor will remain personally liable on that debt. Visit the Reaffirmation Agreement page to review requirements, forms, and additional information.
Signatures - what local rules address signatures on electronically filed documents?
Signature of Judges: Local Rule 5091-1 provides that any order entered electronically without the judge’s original signature has the same force and effect as if the judge signed a paper copy of the order and it was entered on the docket conventionally.
Signatures of Registered Users: Local Rule 9011-4(A)(2)(a) provides that a registered user’s electronic signature has the same force and effect as if the registered user signed a paper copy of the document being filed.
Retention Requirement for non-registered user signed documents:
- Local Rule 5005-4(C) provides that documents that are electronically filed and require original signatures other than that of the registered user must be maintained in paper form at least five years from the date of discharge of the debtor, dismissal of the case or final resolution of all appeals pending in the case, whichever is later. This retention neither affects nor replaces any other retention period required by other laws or rules of procedure. The court may require the production of original documents for review by the court, a trustee, the U.S. Trustee, or any interested party.
- Local Rule 3070-1(D), Wage Deduction Orders, requires that a proposed Local Form 75 “Agreed Order to Employer to Deduct and Remit and for Related Matters” be signed by the debtor and debtor’s attorney and if the proposed order is submitted to the court in electronic format, the order must contain the actual imaged signature of the debtor.
Trustee - what is a U.S. Trustee? a case trustee?
The US Trustee is an officer of the Justice Department responsible for supervising the administration of bankruptcy cases, estates, and trustees, monitoring plans and disclosure statements, monitoring creditors’ committees, monitoring fee applications, and performing other statutory duties. Please visit the Office of the U.S. Trustee page for more information.
A case trustee is the representative of the bankruptcy estate who exercises statutory powers, principally for the benefit of the unsecured creditors, under the general supervision of the court and the direct supervision of the U.S. trustee or bankruptcy administrator. The trustee is a private individual appointed in all chapter 7, chapter 12, and chapter 13 cases and some chapter 11 cases. The trustee’s responsibilities include reviewing the debtor’s petition and schedules and bringing actions against creditors or the debtor to recover property of the bankruptcy estate. In chapter 7, the trustee liquidates property of the estate, and makes distributions to creditors. Trustees in chapter 12 and 13 have similar duties to a chapter 7 trustee and the additional responsibilities of overseeing the debtor’s plan, receiving payments from debtors, and disbursing plan payments to creditors.