How to File an Emergency Bankruptcy Petition
Documents necessary to get an Emergency Bankruptcy Petition filed with the Court Clerk.
First be sure you really need an "Emergency Bankruptcy" filing.An Emergency Bankruptcy filing is for those situations when an individual needs Bankruptcy relief, i.e. the automatic stay, very quickly and the person does not have time to go through the normal procedures of a traditional bankruptcy filing. Maybe a foreclosure, wage garnishment, vehicle repossession is about to take place and without the automatic stay being in effect it will be too late to stop these forms of collection on the outstanding debt. In most cases, Bankruptcy filing takes a week or so for the attorney to review documents, put together the necessary information for the filing, and most importantly to make sure there are not obstacles and problems that would prevent the Bankruptcy from being approved and providing the relief needed by the client. The Emergency Bankruptcy filing negates the attorney's ability to make these judgments ahead of time and in the interest of expediency the petition is filed with the hope of getting all of the other information together shortly thereafter. With this in mind, an Emergency Bankruptcy filing should generally be a rare event and the client is best served when they give the attorney ample time to review and prepare a proper Bankruptcy petition. However, if the emergency requires immediate action, an Emergency Bankruptcy Filing can in most cases be completed within a few hours.
Documents Required for an Emergency Petition FilingIt is interesting that the Bankruptcy Code does not use the words " Emergency Bankruptcy" filing and in fact, only outlines the minimum documentation that must be filed with the Court Clerk in order to have the Bankruptcy accepted. This is why lawyers often refer to these types filings as "Skeletal Petition".
1. First you need Official Form 101 which is the Voluntary Petition for Individuals Filing for Bankruptcy.
This is a 7 page form that contains basic information about the individual filing and a Statement if a
Pre-Petition Eviction Judgment was entered against the debtor.
2. You must have a Certificate of Counseling from an approved counseling agency for the District you
are filing in which is obtained by either a one hour counseling session by internet or telephone.
You will generally be required to pay a small fee, however, some of the agencies will even waive
the fee in certain circumstances.
3. A list of names and addresses of all creditors.
4. Official Form 121 which is Statement About Your Social Security Numbers.
5. The filing must also include either the Filing Fee, An Application for Waive of the Fee ( Chapter 7 only) or An Application to Pay the Filing Fee in Installments.
Deadline for Remaining Documents.You may have your Emergency Petition filed, but you are a long way from being finished if you hope to have a successful Bankruptcy case. The Federal Rules of Bankruptcy Procedure require under Rule 1007 that you file all of the other required documents within 14 days of the Petition filing. Section 521 of the Bankruptcy Code list the following as documents the debtors shall file in addition to the documents filed with the Emergency Petition:
1. Schedules of Assets and Liabilities
2. Schedule of Current Income and Expenditures
3. Statement of Debtors Financial Affairs
4. A 342(b) certificate
5. Copies of all payment advices and other evidence of payment received within 60 days of the petition filing.
6. Statement of the amount of monthly net income and how calculated.
7. Statement disclosing any reasonably anticipated increase in income or expenses over the next 12 months from filing of the petition.
8. If the debtor has secured property. A statement of intention with respect to the retention or surrender of such property.
9. A record of any interest that the debtor has in an Education Individual retirement account.
10. A copy of the most recent tax return filed by the debtor in Chapter 7 cases. In Chapter 13 cases the debtor must have filed all required tax returns for the 4 year period preceding the Bankruptcy filing.
The remaining information necessary is usually generated by the software program that most attorneys use to complete a Bankruptcy filing and would include information such as Attorney Compensation, Schedule of any Executory Contracts and Unexpired Leases, and a Schedule of any Cosignors
There may also be other requirements of the Court and Trustees in your District based upon Local Rules, so it is very important that you be aware of the local practice in your area.
Importance of Hiring a Lawyer.As you can see Bankruptcy is very complicated and subject to very specific rules and procedures that if not followed could very well lead to your case being dismissed. When dealing with an Emergency Filing, it can even be more precarious, as if any of the documents required are missing the Clerk may refuse to accept your petition. While Emergency Bankruptcy Petitions have a place in the the Bankruptcy world, they are to be used very sparingly and only if truly no other way is available to avoid the calamity you are facing. I would strongly encourage anyone thinking of filing an Emergency Bankruptcy or any Bankruptcy for that matter, to consult with a Bankruptcy Attorney in your area before proceeding.