The frequently asked questions page has been developed in order to assist you in finding answers to your questions. If you are an individual filing bankruptcy or considering filing bankruptcy, you may wish to consult the Courts' pro se (filing without an attorney) webpage for additional information, including a video designed to provide clear information regarding the bankruptcy process. Please use the expandable menus below to navigate through the sections of questions.
GENERAL BANKRUPTCY AND COURT RELATED QUESTIONS
- 1. What is bankruptcy?
- “Bankruptcy” refers to a national set of laws (the “Bankruptcy Code,” which is codified in Title 11 of the United States Code), designed to help certain individuals and businesses reorganize their financial affairs to achieve a fresh start. Bankruptcy laws give the debtor protection and benefits that are generally not available outside of bankruptcy. Most notably, once a bankruptcy case is filed existing creditors must typically stop all collection efforts against the debtor and the debt may be forgiven if the debtor obtains a discharge. The bankruptcy laws require that the debtor make a full disclosure of all assets, liabilities and other financial information, and generally the debtor either (1) surrenders non-exempt assets for liquidation and distribution to creditors or (2) formulates and proceeds under a plan of reorganization and debt repayment that provides creditors with at least as much as they would receive if the debtor’s non-exempt assets were liquidated and distributed to creditors.
- 2. What are the bankruptcy chapters?
The Bankruptcy Code is divided into several chapters. When a debtor files a case, the debtor elects the chapter under which he or she will proceed. The different chapters have varying procedures for repayment of debt and obtaining a discharge.
Chapter 7: Often called the "liquidation chapter," Chapter 7 is used by individuals and non-individuals who are unable to reorganize their financial affairs through a plan of repayment. There is no debt limitation under Chapter 7; however, as discussed in Debtor Related Questions, certain individuals may not be eligible for Chapter 7 relief under the “Means Test.” In Chapter 7, the debtor's non-exempt property is liquidated by the Chapter 7 Trustee and the proceeds from liquidation are distributed to creditors. At the conclusion of this process, individual debtors receive a discharge of their dischargeable debts.
Chapter 11: Chapter 11 and the remaining chapters of the Bankruptcy Code offer the debtor a chance to reorganize through a plan. Creditors vote on whether to accept or reject a plan of reorganization which must be approved by the court. While the debtor normally remains in control of the assets, the court can convert the case to a Chapter 7 case or order the appointment of a trustee in certain circumstances. In addition to the filing fee paid to the bankruptcy clerk, a quarterly fee is paid to the U.S. Trustee in all Chapter 11 cases. There is no debt limit under Chapter 11.
Chapter 12: This chapter is available to individuals, corporations, or partnerships who qualify as family farmers, a defined term under the Bankruptcy Code. There are debt limitations for Chapter 12, and a certain portion of the debtor's income must come from the operation of a farming business. Family farmers must propose a plan to repay their creditors over a period of time from future income and it must be approved by the court. Plan payments are made through a Chapter 12 trustee who also monitors the debtor's farming operations while the case is pending.
Chapter 13: Chapter 13 is the debt repayment chapter for individuals with regular income whose debts are below a certain statutory amount. Chapter 13 is not available to corporations or partnerships. Chapter 13 generally permits individuals to keep their property by repaying creditors out of their future income. Each Chapter 13 debtor proposes a repayment plan which must be approved by the court. The amounts set forth in the plan must be paid to the Chapter 13 trustee who distributes the funds less an approved commission. Many debts that cannot be discharged can still be paid over time in a Chapter 13 plan and a debtor may be able to cure existing defaults on mortgage and car payments through a Chapter 13 plan. After completion of payments under the plan, Chapter 13 debtors receive a discharge, which is broader than the discharge received under Chapter 7.
- 3. Who is a bankruptcy case trustee?
A bankruptcy trustee is appointed in all Chapter 7, 12, and 13 cases and in some Chapter 11 cases. The trustee administers the bankruptcy estate and presides at the first meeting of creditors (also called the “section 341 meeting”). In a Chapter 7 case, the trustee liquidates the debtor’s assets by collecting and selling non-exempt estate property. In a Chapter 13 case, the trustee collects money from the debtor over a period of years and distributes it to creditors according to the debtor’s repayment plan. The trustee can require the debtor to provide information and documents before, after, or at the meeting of creditors.
- 4. Who is the United States Trustee?
The United States Trustee Program (“UST”) is a component of the United States Department of Justice that seeks to promote efficiency and protect the integrity of the bankruptcy system. To further the public interest in the just, speedy and economical resolution of cases filed under the Bankruptcy Code, the UST monitors the conduct of bankruptcy parties and private estate trustees, oversees related administrative functions, and acts to ensure compliance with applicable laws and procedures. It also identifies and helps investigate bankruptcy fraud and abuse in coordination with United States Attorneys, the Federal Bureau of Investigation, and other law enforcement agencies.
- 5. Is bankruptcy information public information? Can anyone look at it?
The documents filed in bankruptcy cases are a matter of public record and can be reviewed by members of the general public at the Clerk's Office during regular business hours at no charge or, for attorneys, parties and those who have access to PACER, over the Internet 24 hours a day.
- 6. May I speak directly to the judge?
No. The Bankruptcy Rules prohibit any "ex parte" contact (communication between just you and the judge) with the Court in order to preserve the integrity of the Court and to prevent the appearance of any impropriety or allegations of preferential treatment for any party. The only time you may speak to the judge is when you are in the courtroom for a hearing in your case.
- 7. What does the Clerk's Office do?
The Clerk's Office provides a variety of services to the bankruptcy judges, attorneys and the public. Clerk's Office staff provide clerical and administrative support to the Bankruptcy Court by maintaining case-related files, issuing notices, collecting authorized fees, entering judgments and orders, and setting hearings. The services provided by the Clerk's Office to attorneys and the public also include responding to requests for information and making copies of papers in bankruptcy court files.
- 8. Can the Clerk’s Office give legal advice?
No. The Clerk’s Office staff is prohibited from giving legal advice.
- 9. What if I have an emergency pleading?
To file an emergency bankruptcy petition with the Clerk after regular business hours, or for any other type of emergency filing, please refer to the Chambers Guidelines and the "Order Re: Guidelines for filing documents"on the website for instructions. For electronic filers, the CM/ECF system is available 24 hours a day.
- 10. What identification do I need for entering the Court’s buildings?
All adult visitors and unaccompanied minors will need to present valid government-issued picture identification (drivers license, state identification card, passport, or immigration card) for entry into the Court’s buildings. A valid government-issued picture identification is also required for entry into the Meeting of Creditors.
- 11. What form of payment do you accept?
Debtors may pay with exact cash, cashier's check, or postal money order. However, the Clerk's Office does not accept two-party checks, personal checks, debit or credit cards from the debtor in bankruptcy. The Clerk’s Office may accept in certain instances, checks drawn on an attorney’s trust account.
- 12. I have information about bankruptcy fraud in a case. Where do I report it?
The following link to the Bankruptcy Fraud Hotline contains information for reporting bankruptcy fraud.
- 13. I have an attorney and have a complaint about how my case is being handled. Who do I contact?
You may contact the South Carolina Bar in writing at The Client Assistance Program, South Carolina Bar, Post Office Box 608, Columbia, SC at 29202-0608 or by telephone at (803) 799-6653.
- 14. I have a complaint about the trustee assigned to my case. Who do I contact?
You may contact the United States Trustee’s Office in writing at 1835 Assembly Street, Suite 953, Columbia, SC at 29201 or by telephone at (803) 765-5250.
DEBTOR RELATED QUESTIONS
- 1. What is a bankruptcy petition?
A bankruptcy petition is a form that a debtor files to commence a case before the Bankruptcy Court. The debtor elects in the document the bankruptcy chapter under which he or she will proceed and provides certain other required identifying information. The document is signed by the debtor under penalty of perjury. Married individuals are allowed to file a joint petition whereby a single bankruptcy case is commenced for the two married individuals.
- 2. What are bankruptcy schedules and your statement of financial affairs for bankruptcy?
These documents provide information about the debtor’s assets and liabilities. In these documents, the debtor describes the nature and value of his or her property and lists the nature and amount of debts, the names and addresses of creditors, and the debtor’s current income and expenditures. Your statement of financial affairs for bankruptcy also requires the debtor to disclose certain historic information about the debtor’s financial affairs. These documents must be fully completed and are signed by the debtor under penalty of perjury.
- 3. What is “credit counseling”? Where do I take this course?
As of October 17, 2005, in order to be eligible to file for bankruptcy, individual debtors must receive credit counseling within 180 days prior to filing a bankruptcy petition unless they qualify for a temporary waiver of the requirement under 11 U.S.C. § 109(h)(3) or an exemption from the requirement under 11 U.S.C. § 109(h)(4) of the Bankruptcy Code. Specifically, the law requires the debtor to receive, from an approved agency, a briefing to outline the opportunities available for credit counseling and creation of a financial management plan. This may be done in an individual or group session and may be completed in person, on the phone, or even via the Internet. The Court facilitates access to credit counseling by the public use of a telephone or computer to obtain such counseling. A timely certificate of credit counseling is required.
A list of court-approved credit counselors is available on the U.S. Trustee’s website or from this hyperlink: Approved Credit Counseling Agencies.
- 4. What is the “means test”?
Individual debtors with primarily consumer debts who file a petition for bankruptcy under Chapter 7, 11, or 13 must complete an income-based “means test.” The means test calculates the difference between a debtor’s current monthly income (“CMI”) and his or her allowed expenses. The means test is intended to determine whether a debtor has the “means” to repay some percentage of his or her non-priority unsecured debts. In order to report and calculate a debtor’s CMI and allowed expenses for the completion of the means test, official forms B122A-1, B122A-1SUPP, and B122A-2 have been created for Chapter 7 debtors, B122B for individual 11 debtors, and B122C-1 and B122C-2 for Chapter 13 debtors. In a Chapter 7, the means test may determine whether there is a presumption of abuse by the debtor in seeking relief under Chapter 7. Forms B122B, B122C-1 and B122C-2 can be used to determine the appropriate payment plan for debtors in Chapters 11 and 13.
- 5. What is “Property of the Estate?”
“Property of the Estate” is a term of art used in the Bankruptcy Code. The term includes nearly all of the debtor’s property at the time the debtor files the petition. In a Chapter 13 case, the term also includes a debtor’s post-petition wages and other property that the debtor acquires before the case is closed. Property of the Estate is protected by the automatic stay absent a lifting of the stay by court order or operation of law.
- 6. What is the automatic stay?
The filing of a bankruptcy petition automatically stays (stops) most actions, such as collections, foreclosures and repossessions, against the debtor or the debtor's property. It is called "automatic" because the stay typically begins automatically at the time the bankruptcy case is filed with the Clerk's Office. There are certain exceptions to the automatic stay, such as if you have filed bankruptcy in the past and your case was dismissed (depending on the number of cases and the time period since dismissal of the previous case). Once the stay is in place, creditors are prohibited from taking certain actions against a debtor without permission from the Bankruptcy Court. Some creditors, particularly those involved with repossessions or foreclosures, may immediately file a motion to lift the automatic stay with the Court to seek the ability to go forward with foreclosure or repossession actions. The legal authority for obtaining relief from stay can be found in section 362 of the Bankruptcy Code. See 11 U.S.C. § 362(d), Fed. R. Bankr. P. 4001, and SC LBR 4001-1.
- 7. What can I do if a creditor keeps trying to collect money after I have filed bankruptcy?
If the creditor continues to attempt to collect a debt after the bankruptcy is filed, the creditor may be in violation of the automatic stay. You should immediately notify your attorney, if you have one, of the creditor’s collection efforts. If you are not represented, you may provide notice to the creditor that you have filed bankruptcy and documents such as the bankruptcy petition and Notice of Filing may assist the creditor in determining your status as a debtor who may be protected by the automatic stay. If the creditor continues an attempt to collect, you may be entitled to take legal action against the creditor. Any such legal action brought against the creditor will be complex and will normally require representation by a qualified bankruptcy attorney.
- 8. What is a proof of claim?
A proof of claim is a document filed by a creditor that asserts a right to payment. In a Chapter 13 case, the creditor must file a proof of claim to receive payment from the Chapter 13 trustee under your plan. In a Chapter 7 case, creditors may be asked not to file a claim until the Chapter 7 trustee determines that there are assets for distribution. Since the claim is filed with the Bankruptcy Court, you may not necessarily receive a copy of the claim from the creditor. Your attorney can assist you in determining whether the claim is valid or should be disputed. You may use Official Form B410 for filing a proof of claim.
- 9. What is a Meeting of Creditors?
The Meeting of Creditors, also known as a 341 Meeting (so-called after § 341 of the Bankruptcy Code), is a meeting that a debtor is required to attend after filing for bankruptcy. The meeting is conducted by the case trustee or the U.S. Trustee. The bankruptcy judge does not attend this meeting. The debtor must appear at this meeting and testify under oath about his or her financial condition, assets, and liabilities. The debtor will be asked questions about the information contained in the bankruptcy paperwork filed with the Court. Creditors may also attend this meeting and may question the debtor about his or her financial affairs. If a debtor fails to attend this required meeting, the case trustee may seek to dismiss the bankruptcy case. A debtor typically cannot receive a discharge in bankruptcy without attending this meeting.
The Meeting of Creditors is held within a certain time period after the bankruptcy case is commenced. Within about a week after the bankruptcy case is filed, the debtor will receive notice by mail of the date and time of the Meeting of Creditors, which will be contained in the Notice of Bankruptcy Filing. The debtor is required to bring certain identification information to this meeting and the trustee may request further information about the debtor’s financial affairs.
- 10. What is an Exemption?
An “exemption” is a statutory right that may be exercised to exempt the equity in certain real and personal property from certain creditors. If there is no non-exempt equity in your property, after considering its value, consensual liens, and the amount of the exemption, then your trustee may determine that the property should not be sold for the benefit of your creditors or that such property should not be considered in determining your payment under a Chapter 13 plan. An exemption has no effect on the rights of a creditor with a consensual lien, such as a mortgage creditor or the creditor that financed the purchase of a vehicle. However, an exemption may be used to reduce or eliminate a judicial lien if the debtor’s non-exempt equity in the property, to which the lien has attached, is less than the amount of the lien. See (CreditorFAQ #11) What is Lien Avoidance? A debtor takes an exemption by completing Schedule C. Most exemptions allowed under South Carolina law are found in S.C. Code Ann. § 15-41-30. Whether you can claim exemptions allowed by South Carolina law depends upon how long you have been a resident of South Carolina.
- 11. What is the Plan of Reorganization?
The plan, generally filed by the debtor in a Chapter 13 case, states how the debtor proposes to pay their various debts. Creditors and other parties in interest are served with the plan and have an opportunity to object to a proposed plan. The plan does not become effective until the Court confirms it after a hearing. The form Chapter 13 plan used in this District is found at SC LBR 3015-1 (Exhibit A).
- 12. What should I do if I can not make my Chapter 13 payment?
If the debtor cannot make a Chapter 13 payment on time according to the terms of the confirmed plan, the debtor should contact their attorney, if represented, or the Chapter 13 trustee to explain the problem. Under certain circumstances, the Chapter 13 trustee may agree to allow the debtor to catch up on the missed plan payments. Significant changes in the debtor’s circumstances may require that the plan be amended by motion of the debtor. Debtor may also be able to seek a temporary stay of plan payments by filing a motion for a moratorium. The debtor may also seek an order for a hardship discharge to obtain a limited Chapter 13 discharge and end the Chapter 13 case if certain criteria are met. If the problem in payment is permanent and the debtor is no longer able to make payments under the plan, the trustee may request that the Bankruptcy Court dismiss the case or convert the case to one under another chapter.
- 13. What is a reaffirmation agreement?
A reaffirmation agreement is an agreement by which a Chapter 7 debtor becomes legally obligated to pay all or a portion of an otherwise dischargeable debt. In order to be effective and enforceable, the agreement must be properly executed and filed in the debtor’s bankruptcy case. The debtor has a certain period of time to rescind the reaffirmation agreement.
If the reaffirming debtor is not represented by an attorney, the Bankruptcy Court will hold a hearing on the agreement. In some instances, the Court will hold a hearing even when the debtor is represented by counsel. The debtor must appear in person at the hearing. The judge may ask questions including whether the reaffirmation agreement imposes an undue burden on the debtor or on his or her dependents, and whether it is in the debtor’s best interest.
- 14. What is redemption?
Redemption allows an individual debtor in a Chapter 7 case to keep tangible, personal property intended primarily for personal, family, or household use, by paying the holder of a lien the lesser of the amount of the lien or the value of the property. Redemption is an alternative to reaffirmation. The property redeemed must be property that is exempt or that has been abandoned by the Chapter 7 trustee. With redemption, a debtor can often get liens released on personal possessions for much less than the underlying secured debt; however, unless the creditor consents to periodic payments, redemption must generally be made in one lump sum payment to the creditor. If the debtor and creditor agree to the redemption, just a consent order of redemption is required. However, if the redemption is opposed, a motion for redemption and a request for hearing should be filed. As with reaffirmation, the Bankruptcy Code imposes certain deadlines by which the debtor must seek redemption of his or her property.
- 15. What is an executory contract and why must I assume or reject it?
Executory contracts are unfulfilled contracts whereby each party to the contract has remaining obligations. A typical example of such contracts is a lease for property, such as a home or a vehicle, or a rent-to-own agreement. In bankruptcy such contracts must be “assumed” for the debtor to continue to have rights under the agreement. As with reaffirmation agreements and redemption, the debtor must take timely action to assume his or her executory contracts, otherwise the contracts may be deemed “rejected” and the automatic stay may be lifted.
- 16. What is “financial management”? Where do I take the course?
The "Certification About a Financial Management Course" in chapters 7 and 13 must be completed before a discharge is entered, unless the debtor qualifies for a temporary waiver or exemption from the requirement under 11 U.S.C. § 109(h).
Chapter 7: If you have filed a Chapter 7 petition, you must complete a course in personal financial management and file your certification with the Court within 45 days of the first date set for the Meeting of Creditors, or your case will be closed without a discharge. See Fed. R. Bankr. P. 1007
Chapter 13: If you have filed a Chapter 13 petition, you must complete a course in personal financial management and file your certification with the Court no later than the last payment made as required by the plan or the filing of a motion for entry of discharge under § 1328(b), or your case will be closed without a discharge. See Fed. R. Bankr. P. 1007(b)(7) and (c); SC LBR 3015-5.
The U.S. Trustee's Office provides a list of Approved Financial Management Course Providers.
- 17. What is a discharge? When will I receive it?
A bankruptcy discharge releases an individual debtor from personal liability for certain specified types of debts. In other words, the debtor is no longer legally required to pay the debts that are discharged. The discharge is a permanent order prohibiting the creditors of the debtor from taking any form of collection action on discharged debts, including legal action and communications with the debtor, such as telephone calls, letters, and personal contacts. Although a debtor is not personally liable for discharged debts, a valid lien that has not been avoided (i.e., made unenforceable) in the bankruptcy case will remain after the bankruptcy case. Therefore, a secured creditor may enforce the lien to recover the property secured by the lien. Corporations and similar entities are not eligible for a discharge.
With regard to the timing of discharge, each case is different. In a Chapter 7 case, a debtor's discharge is usually entered between 90 to 120 days after the case was filed and the debtor complies with all obligations required by the Bankruptcy Code. The entry of a discharge may take longer if a debtor's entitlement to the discharge is contested by the case trustee or creditors. In a Chapter 13 case, a discharge is entered upon the successful completion of the Chapter 13 plan, usually between 36 to 60 months following bankruptcy. In a Chapter 11 case, the debtor also formulates a plan of reorganization, therefore, the Chapter 11 process may take several years to complete.
- 18. Are all debts discharged in bankruptcy?
Not all debts are discharged. The debts discharged vary under each chapter of the Bankruptcy Code. A slightly broader discharge of debts is available to a debtor in a Chapter 13 case than in a Chapter 7 case. Section 523(a) of the Bankruptcy Code specifically excepts various categories of debts from the discharge granted to individual debtors. Therefore, the debtor must still repay those nondischargeable debts after bankruptcy. The most common types of nondischargeable debts are certain types of tax claims, debts for domestic support obligations, debts for willful and malicious injuries to person or property, debts to governmental units for fines and penalties, debts for most government funded or guaranteed educational loans or benefit overpayments, debts for personal injury caused by the debtor's operation of a motor vehicle while intoxicated, and debts owed to certain tax-advantaged retirement plans. Other types of debt, such as obligations incurred as the result of fraud, embezzlement, or willful injury may be excepted from discharge if the creditor successfully brings a nondischargeability action against the debtor.
- 19. Does a discharge remove the lien against my property?
The discharge order only relieves the debtor of the personal obligation to pay the debt. Valid liens against the debtor’s property that existed prior to the date the debtor filed for bankruptcy generally pass through the bankruptcy unaffected. However, certain liens may be avoided (i.e. made unenforceable) during bankruptcy or may be satisfied through a plan or reorganization.
- 20. What can I do if a creditor continues to try to collect on a debt from me that was discharged in my bankruptcy case?
The best course of action will depend on the specific facts involved. It is recommended that a debtor contact an attorney with any questions. Making the creditor aware that the discharge order was entered and that the order applies to the creditor’s debt often resolves the collection action. If the creditor continues its attempts to collect a discharged debt, the discharge order may used as a viable defense to the collection action. The debtor may also file an appropriate pleading in the Bankruptcy Court for a determination that the debt was discharged or alternatively to seek damages for a creditor’s violation of a discharge order.
- 21. What does it mean if a case is dismissed?
A dismissal order ends the case and removes most matters from the Bankruptcy Court’s jurisdiction. Dismissal does not mean the case was never filed or erase the case from the Court’s records. The filing of the case and the dismissal remain a matter of record. When the Court dismisses a case, the automatic stay is no longer in effect and creditors may start to collect on their debts again. Some types of dismissals may contain a bar to refiling another bankruptcy case.
- 22. How long does a bankruptcy case stay on my credit report? How do I get a bankruptcy removed from my credit report?
A bankruptcy generally affects a person’s credit rating for 7 to 10 years. However, this depends entirely on the individual credit reporting agency. The Bankruptcy Court has neither influence on the type of information the credit bureaus report, nor how long they keep it in their records. Under federal law, you may be able to periodically receive a free copy of your credit report from each of the three major credit reporting agencies. Each agency's report may contain different information. To receive a free annual credit report, you can visit www.annualcreditreport.com or you can call or send a written request to:
Annual Credit Report Request Service
PO Box 105281
Atlanta, GA 30348-5281
The Fair Credit Reporting Act, 15 U.S.C. § 1681, is the law that controls credit reporting agencies. If you believe that there is an error in your credit report and want to correct it, you should contact the credit reporting agencies directly at:
Further information may be obtained from the Federal Trade Commission website at “How to Dispute Credit Report Errors.”
The Federal Trade Commission, Bureau of Consumer Protection, Education Division, Washington, D.C. 20580 may also be contacted. The toll-free telephone number is 1-877-382-4357. That Office may be able to provide further information on reestablishing credit and addressing credit problems.
CREDITOR RELATED QUESTIONS
- 1. How do I find out if I’m listed as a creditor?
If you receive a “Notice of Case, Meeting of Creditors and Deadlines,” you are listed as a creditor. You may also consult PACER (Public Access to Court Electronic Records) or VCIS (Voice Case Information System) (1-800-669-8767 or 1-803-765-5211), or visit the Court in person to view the record of the case.
- 2. What is the “Notice of Case, Meeting of Creditors and Deadlines” document I received?
You were named as a creditor in this case and are probably listed on the debtor's schedules. This notice lists important dates and deadlines and should be reviewed carefully. Included in the Notice is the date set for the Meeting of Creditors and the deadline for filing a Proof of Claim, when applicable. In a Chapter 7 case, the Notice will contain a deadline to Object to Discharge. In a Chapter 13 case, the Notice will provide the date set for confirmation of the Chapter 13 plan and will also contain the deadline to Object to the Dischargeability of certain debt.
If you feel you were notified in error, contact the debtor's attorney to be removed from the case mailing matrix.
- 3. Do I have to attend the Meeting of Creditors to get my money?
No. However, the Meeting of Creditors may be of interest to you as the meeting includes an examination of the debtor(s) under oath. This is your opportunity to ask the debtor questions related to their financial affairs.
- 4. How do I file a claim?
If you have been listed as a creditor in a bankruptcy case, you will receive by mail a Notice of Case, Meeting of Creditors, and Deadlines. This notice will tell you if there is a deadline for filing claims. If a deadline for filing claims is contained in the notice, you will also receive a proof of claim form.
If the original notice you receive from the Clerk's Office does not contain a deadline for filing proofs of claim (which is typical in Chapter 7 cases), you may subsequently receive a "Notice to File a Proof of Claim," along with a proof of claim form, if the trustee later determines that there are assets available for distribution in the case. This notice will also contain the deadline for filing such claims with the Court.
If you are informed of a claim deadline, but do not receive a proof of claim form to fill out, you may obtain one from the Clerk's Office or you may obtain Official Form B410 from the Court’s website.
You must file the claim with the Court by the deadline for filing claims. You may file the claim electronically by registering as a CM/ECF limited creditor filer, and you must file electronically if you routinely file claims with the Bankruptcy Court. Otherwise, if you are not represented by counsel, you may mail or hand-deliver your claim for filing, which must be received on or before the filing deadline.
- 5. I am a creditor in a case that has converted to another chapter. Is it necessary for me to file another Proof of Claim?
No, once you have filed a proof of claim with the Court, you need not re-file the claim after conversion, unless you receive a notice stating otherwise.
- 6. If I timely file a proof of claim, will I receive payment?
The answer to this question depends on the chapter under which the debtor files for bankruptcy. In a Chapter 11 or a Chapter 13, your right to receive payment will be set forth in the debtor’s plan of reorganization. In a Chapter 7 case, you may not receive payment unless the debtor has non-exempt assets that can be liquidated by the Chapter 7 trustee. For unsecured and undersecured creditors, the amount of payment will vary depending upon the value of the assets liquidated and the amount of claims filed against the debtor. Secured creditors generally retain their liens during the bankruptcy and can reduce their claim by liquidating their collateral after the automatic stay is lifted. Requests for information regarding when a claim will be paid should be directed to the trustee assigned to the case whose name and telephone number can be found on the Notice of Case, Meeting of Creditors, and Deadlines.
- 7. How do I get notices sent to me in a bankruptcy case if I am a creditor of the debtor?
To receive notices in a bankruptcy case, the debtor must have listed you on the mailing matrix of creditors when the case was filed (or by later addition) or you must file a written notice of appearance with the Court. You will also be added to the mailing matrix when you file a proof of claim in an asset case. If the address supplied by the debtor is not correct or if you change your address during the time the case is proceeding, you must notify the Court in writing of your current address.
IMPORTANT: If your correct and current address is not listed in the Court records, you will not receive notices in the case and, if dividends are distributed to creditors, your dividend check may not reach you.
- 8. A company or individual has filed for bankruptcy and owes us money. What action can we take?
Once a debtor files bankruptcy, he or she is protected by the automatic stay, which generally prohibits most actions by a creditor to collect a debt. There are limited exceptions to the automatic stay and you should consult an attorney to determine your rights. Actions taken in violation of the automatic stay may subject you to paying damages to the debtor. You can participate in the debtor’s bankruptcy by attending the Meeting of Creditors, filing a proof of claim, and filing appropriate objections.
- 9. How do I obtain relief from the automatic stay?
In order for a party to continue a proceeding against the debtor that has been stayed because of bankruptcy, the party must file with the Bankruptcy Court a Motion for Relief from the Automatic Stay. The Bankruptcy Rules and SC LBR 4001-1 prescribe the procedures for filing a motion for relief from the automatic stay. The filing fee for a Motion for Relief from the Automatic Stay can be found on the Court's website under Court fees. The creditor may also file a consent order with the debtor in which the debtor agrees to a lifting of the automatic stay and under certain circumstances the automatic stay may terminate. An attorney should be consulted to determine if an action is prohibited by the automatic stay.
- 10. May I have access to the debtor’s tax returns?
A creditor may obtain a copy of certain tax returns of the debtor, however such requests are governed by the Bankruptcy Code and Rules and the Local Rules of this Court.
- 11. What is Lien Avoidance?
Lien avoidance is a process in bankruptcy by which the debtor may avoid or remove your lien from certain property. A debtor may avoid a lien through a Chapter 13 plan or by filing a motion in a Chapter 7 case. 11 U.S.C. § 522(f) of the Bankruptcy Code allows the debtor the right to avoid judicial liens and certain non-possessory, non-purchase money security interests if the debtor’s non-exempt equity in the property encumbered by your lien is less than the amount of your lien. This process is not available under state law and you should consult an attorney regarding your rights if the debtor seeks to avoid your lien.
- 12. How do I object to the debtor’s general discharge?
In a Chapter 7 case, a creditor can object to the granting of a discharge if there is cause to do so under 11 U.S.C. § 727(a). The creditor must timely file an adversary in the Bankruptcy Court to object to the debtor’s discharge. See Fed. R. Bankr. P. 4004.
- 13. How do I object to the dischargeability of my debt?
Under all chapters, certain debts may be discharged unless a creditor timely files an adversary with the Bankruptcy Court to object to dischargeability of the debt. See Fed. R. Bankr. P. 4007.
- 14. How can the debtor get away without paying me?
The Bankruptcy Code, written by Congress, is designed to give a fresh start to honest but unfortunate debtors who are unable to timely pay their debts. Unfortunately, this means that creditors sometimes are not paid or are only repaid a portion of the debt. The Court functions as a neutral impartial body to rule on any disputes that arise in these cases. It is always best to consult an attorney about your legal rights.
- 15. As a creditor, how can I register to file documents and receive notice of case activity electronically in CM/ECF?
Creditors seeking access to CM/ECF in order to file documents and receive electronic notice should visit the Court’s webpage "training options" for details on how to become a limited access filer.
FILING WITHOUT AN ATTORNEY
- 1. Do I need an attorney to file bankruptcy?
Individuals are not required to have an attorney to file bankruptcy. Non-individuals must be represented by an attorney to file bankruptcy. Bankruptcy is an extremely technical and complicated area of law and, historically, most cases fail where the debtor is not represented by an attorney. There are a substantial number of documents required to be completed and filed to commence a case, many of which are extremely technical in nature, and the failure to file certain documents may result in the automatic dismissal of the case. Unfortunately, may pro se parties do not obtain the relief they seek because they are unfamiliar with the complexities and requirements of bankruptcy law. The staff at the Bankruptcy Court Clerk's Office cannot give legal advice. If you have questions about filing for bankruptcy or preparing the bankruptcy paperwork, please seek the advice of an attorney.
- 2. Do I really need to know all of the applicable law and rules since I do not have an attorney?
Though some accommodation is made for pro se parties, the law requires the Court to hold pro se parties to the same standards as if the party was represented by an attorney.
- 3. Finding An Attorney
In a Chapter 7 case, attorney fees are often paid by the debtor before the case is filed. Under a Chapter 13 case, most of the fees are usually paid through the debtor’s repayment plan. There are also legal service organizations that may be able to help with navigating a bankruptcy case and state and local bar associations often provide lawyer referral services. If you need free legal assistance to file Chapter 7 or Chapter 13 bankruptcy, you may contact South Carolina Legal Services at 1-888-346-5592 for legal services and reference that you are considering filing bankruptcy (or have already done so). South Carolina Legal Services determines if you are eligible for legal services based upon federally established poverty guidelines. Only eligible applicants are referred for representation by Legal Services or by the South Carolina Bar Pro Bono Program.
If you are not eligible for free legal representation, or are searching for an attorney in your area, please call the South Carolina Bar Lawyer Referral Service at 803-799-7100 (in Columbia) or 1-800-868-2284 (outside Columbia). The service can provide the name of a lawyer who handles your type of case. The lawyer may charge a minimal fee (approximately $50.00) for a one-half hour consultation. A fee agreement for further representation would then be negotiated. You may also contact the Court at 803-765-5436 for assistance in obtaining legal counsel.
- 4. What services can a bankruptcy petition preparer provide?
Bankruptcy petition preparers are permitted to provide services limited to the typing of forms and filing of documents. Bankruptcy petition preparers may not provide legal advice. The bankruptcy petition preparer is required to sign and print the preparer's name, address and social security number on all documents prepared for filing. Bankruptcy preparers are not authorized to sign any document on your behalf. Therefore, you (and if filing a joint petition, your spouse) must also sign all the documents. Copies of all prepared documents should be furnished to you by the bankruptcy petition preparer at the time they are presented to you for signature. Likewise, bankruptcy petition preparers are prohibited by law from collecting or receiving any court fees connected with the filing of your case. Consequently, all court fees connected with the filing of your case, including the filing fee, miscellaneous administrative fee, and Chapter 7 trustee fee should be paid directly by you to the court. The failure of any bankruptcy petition preparer to comply with the law should immediately be brought to the attention of any trustee appointed in your case and the local Office of the United States Trustee.
- 5. Under what chapter do I need to file?
Debtors may choose the chapter of the Bankruptcy Code which they believe suits their needs as long as they meet the requirements for eligibility under that chapter. Whether to file a bankruptcy case, and under which chapter to file, are extremely important matters that must be evaluated according to the particular circumstances of each debtor. No simple statement can spell out all the different issues to consider and it is usually best to consult with an attorney for representation.
- 6. Can I receive a waiver or exemption from the requirements of pre-petition credit counseling or post-petition financial management?
Certain limited waivers or exemptions to these requirements are set forth in 11 U.S.C. § 109(h). If the debtor failed to obtain pre-petition credit counseling, the debtor should promptly request a waiver or an exemption from pre-petition credit counseling if the debtor is so eligible.
- 7. Where do I file?
Once you have completed filling out the required documents and undergone pre-petition credit counseling, you may file these documents at the Bankruptcy Court Clerk’s Office at 1100 Laurel Street, Columbia, South Carolina, 29201, in person or through the mail. In addition, in order for the Court to process your filing, you must accompany it with the required filing fee based on the chapter you are filing under (exact cash, cashier’s check or Money Order only, no personal checks). The business hours and phone number for the Clerk’s Office are posted on our website and can be found here.
- 8. What is the filing fee for filing a bankruptcy petition? Can the fees be waived? Can I make payments?
There is a filing fee to commence a bankruptcy case which varies by the chapter of case filed, as well as various miscellaneous fees that may apply for filing certain documents or services requested. Because filing fees change frequently, it is recommended that you visit the Court fees webpage of our website for the most up to date fee information.
The filing fee may be waived only in very limited circumstances and with Court approval. For Chapter 7 individual cases only, there is a procedure for proceeding In Forma Pauperis if the debtor’s income is less than 150 percent of the official poverty line applicable to your family size and you are unable to pay the fee in installments. If you cannot afford to pay the fee either in full at the time of filing or in installments, then you may request a waiver of the filing fee by completing Form B103B (Application to have the Chapter 7 Filing Fee Waived) and filing it with the Court. A judge will decide whether or not you have to pay the fee.
Alternatively, an individual debtor (but not a corporation or partnership) who is unable to pay the full fee at the time of filing may, at the time of commencing the case, file an application to pay the fee in installments using Official Form B103A Application for Individuals to Pay the Filing Fee in Installments.
- 9. What documents do I need to file?
The Bankruptcy Code requires debtors to file various documents to commence a bankruptcy case, to establish eligibility, and to disclose your financial affairs. This link will direct you to standard form documents utilized in the Bankruptcy Court. The Clerk’s Office cannot help you complete these forms and the failure to timely file certain forms may result in the automatic dismissal of your case.
- 11. How do I know if a debt is secured, unsecured, priority, or administrative in order to fill out my schedules correctly?
A. Secured Debt: A secured debt is a debt that is supported by collateral, which is defined as property that secures the satisfaction of a debt. A creditor whose debt is secured by collateral has the right to use the collateral to satisfy the secured debt if the debtor defaults on his or her obligations. Most secured debts are created voluntarily when a debtor willingly pledges property to secure a debt. For example, most homes are burdened by a mortgage, which is a form of secured debt. If the debtor defaults on a mortgage, the secured creditor has the right to begin foreclosure proceedings against the real property that secures the underlying loan. Also, many people who buy cars pledge the vehicle to secure the loan, giving the lender a “security interest” in the car. Outside of bankruptcy, this form of secured debt may give the lender the right to “self-help repossession,” allowing the creditor to take the collateral without first seeking permission from a Court. Secured debts can also be created without the debtor’s permission in certain circumstances such as a statutory lien (i.e., a mechanics lien or a judicial lien).
B. Unsecured Debt: An unsecured debt generally consists of only one transaction -- the debtor borrows money and makes a binding promise to repay the loan. An unsecured debt is not supported by a pledge of collateral, and the lender has no right to use the debtor’s property to satisfy the debt. An unsecured debt may become a secured debt if the lender obtains a judgment against the debtor and uses this judgment to create a judicial lien.
C. Priority Debt: Priority debts are special types of unsecured debt that are entitled to be paid before other unsecured debts are paid in a bankruptcy case. Section 507(a) of the Bankruptcy Code lists types of unsecured debt that are given priority treatment under the Code. These include certain taxes, certain wage claims of employees, debts related to goods and services provided to a debtor’s estate during the pendency of a bankruptcy case, and domestic obligations. If you have questions when deciding which of your debts are entitled to priority status, you should consult an attorney.
D. Administrative Debt: Administrative expenses are the first type of priority debt listed under 11 U.S.C. § 507(a). Administrative expenses are incurred when someone provides goods or services to your bankruptcy estate.
- 12. What if I dispute a proof of claim filed by a creditor?
You can object to any claim filed in your bankruptcy case if you believe the debt is not owed or if you believe the claim misrepresents the amount or kind of debt that you owe. In some circumstances, an objection to claim can be initiated by filing a motion in the bankruptcy court. In other circumstances, it must be initiated by filing an adversary proceeding such as if you contest the validity, priority, or extent of the creditor’s lien.
- 13. Do I have to attend the Meeting of Creditors, and what if I am unable to attend on the day scheduled?
Debtors must attend this meeting unless the requirement is waived by the United States Trustee. If you are unable to attend the Meeting of Creditors on the date/time it is scheduled, you must contact the trustee assigned to your case or the local office of the United States Trustee as soon as possible, and request the matter be continued to another date/time. If you are serving in the military and will be out of state, consult the local office of the United States Trustee and/or the case trustee to determine how to proceed. Failure to attend the Meeting of Creditors may result in the dismissal of your case.
- 14. What is a certificate of service?
When you file a motion or pleading with the Court, you must serve all interested parties by mailing or delivering a copy of the motion or pleading to all interested parties. To prove you have done so, you typically must file a certificate of service, which states that you mailed or delivered a copy of the motion or pleading to all interested parties and lists the names and addresses of those who were served. Failure to serve parties with a motion or other pleading may result in the denial of the relief you request.
- 15. How do I file a change of address?
It is the debtor’s responsibility to keep the Court updated of any change in address for noticing purposes. The debtor must file a letter of Change of Address stating your name and case number along with your old and new address to the Court immediately upon change.
- 16. How do I dismiss my case?
The answer to this question depends on whether the case is filed under Chapter 7 or Chapter 13. Debtors who file for relief under Chapter 7 do not have an automatic right to dismiss their bankruptcy case. See 11 U.S.C. § 707(a). Debtors who file for relief under Chapter 13 have the right to voluntarily dismiss their case under certain circumstances. See 11 U.S.C. § 1307.
- 17. What should I do if I realize that I inadvertently failed to list a creditor in my schedules after my bankruptcy case is closed?
The failure to schedule a creditor may or may not affect the discharge of that particular debt. An attorney experienced in bankruptcy law should be consulted because the answer of whether to list a creditor depends on the specific facts of each case. However, in general, a debtor may file a motion to reopen the case and may be able to amend the appropriate schedules and the creditor matrix. It will be the debtor’s responsibility to serve the added creditor(s), in addition to all other creditors, the United States Trustee, and any trustee appointed to the case, with notice of the motion to reopen the case and amend the pertinent case pleadings. See SC LBR 1009-1.
WHERE CAN I FIND…?
- 1. Where can I find the required bankruptcy forms?
You can download and print bankruptcy forms from the Court’s website from the Local Forms and National Forms menu items. The forms may also be purchased from the Bankruptcy Clerk's Office for a minimal charge. If you come to the Clerk's Office to purchase the bankruptcy forms, please bring exact cash, cashier’s check or a Postal Money Order; as personal checks are not accepted. Many local stationery and office supply stores also carry bankruptcy forms.
- 2. Where can I find a copy of the Local Bankruptcy Rules?
The South Carolina Local Bankruptcy Rules are posted on the Court's website here, and paper copies are available in the Clerk’s Office.
- 3. Where can I find a copy of the Federal Rules of Bankruptcy Procedures?
The Federal Rules of Bankruptcy Procedure are available for review in any Clerk's Office location, at most law libraries, and on the Internet.
- 4. Where can I find a copy of the Bankruptcy Code?
The Bankruptcy Code is available for review in any Clerk's Office location, at most law libraries, and on the Internet.
- 5. Where can I find the Bankruptcy Court?
Please refer to our locations webpage for detailed driving instructions.
- 6. Where can I find my Meeting of Creditors?
You will find directions to your section 341 Meeting or Meeting of Creditors on the U.S. Trustee's Office's website by clicking here. The location for the Meeting of Creditors will be identified in the Notice of Bankruptcy Case that you will receive by mail following the filing of the case.
- 7. Where can I find or get certified copies of documents?
You may come to the Clerk's Office and request certified copies. There is a printing fee and a certification fee for each document to be certified. Alternatively, if you know the documents you are looking for, you can mail a request to the Clerk's Office. Your request must specifically identify the documents you want certified. Be sure to include the case name, case number, filing date and the titles of the specific document that you wish to have certified. In addition, please include your name, address, and daytime contact number, so that the Clerk's Office may reach you if they have any questions concerning your request.
If you request certified documents by mail, you must include payment for the Clerk's search fee and certification with your request. The payment must be in the form of exact cash, a cashiers check, or a U.S. Postal money order made payable to the United States Bankruptcy Court. The fees that apply when requesting a certified document by mail include: a certification fee per document, and a per page photocopy fee. Contact the Clerk’s Office if you are unsure what the total charge for certifying the document will be. Please visit the filing fee page of our website for the most up to date fee information.
- 8. Where do I find a list of properties that are for sale?
You will find this listing on our Sale Notices webpage.
- 9. Where can I find information about a case?
There are several ways that you may obtain bankruptcy case information. Please visit the case information page on our website.
- 10. Where can I find information about an archived bankruptcy case?
Please check the Court’s website link to Federal Records Center Information. With this access information, you may also call the Federal Records Center at 866-329-6465.
- 11. Where can I find information about the Court’s required fees?
This information can be found on the Court's website under Court fees.
CM/ECF RELATED QUESTIONS
- 1. How do I begin to receive electronic notices?
You must be an e-filer and a party in the case in which you wish to receive Notices of Electronic Filing (NEFs). To become a party in the case, you must file a pleading such as a Notice of Appearance/Request for Notice or other document. Please note that filing a proof of claim adds you as a creditor but does not add you as a party to the case or to the list of NEF recipients.
- 2. How do I get started filing electronically?
Visit www.scb.uscourts.gov/cmecf_train_resource.html for training options and eligibility requirements.
- 3. Do I have to file my proof of claim electronically?
Generally, yes. Our Court is an electronic filing court. Exceptions to this requirement include: individuals and small businesses who do not have attorney representation and who infrequently file claims; and some large cases in which a Claims Agent has been employed.
- 4. Can I use my CM/ECF login and password from the District Court or another court to file in the Bankruptcy Court for the District of South Carolina?
No. CM/ECF logins are court-specific
- 5. I filed a new bankruptcy case but received an error message when attempting to run the Judge/Trustee Assignment. What do I do?
Contact the CM/ECF Help Desk for assistance.
- 6. I logged in to CM/ECF but menu options have disappeared. How do I get them back?
You will need to clear the temporary internet files from your browser. In Internet Explorer, go to “Tools” on the menu bar and click on the “Internet Options.” Once in “Internet Options,” click on the “Delete” option under “Browsing history” then click on “Delete Files.” Close Internet Explorer and relaunch Internet Explorer and CM/ECF.
- 7. I filed a pleading that incurred a fee but was not prompted to pay. Why?
Most likely, you have a pop-up blocker enabled. Disable the pop-up blocker then go to Utilities and select Internet Payments Due to open the payment mechanism.
- 8. I disabled the pop-up blocker or do not have one enabled but still cannot see my pending filing fee. Now what do I do?
Fees are login-specific so make sure you are using the same login as the one that generated the filing fee. If it still doesn’t appear, contact the CM/ECF Help Desk for assistance.
- 9. I clicked on “Continue Filing” in the payment window. How do I get back to the payment screen?
Go to Utilities then Internet Payments Due
- 10. I accidentally closed my payment window by using the “x” in the upper right corner of the window and now I cannot get the payment window to appear through Utilities, Internet Payments Due. What happened?
This is a known issue that the Pay.gov website developers are working on. If you close the payment window using the “x” in the corner instead of the “continue filing” button, you will need to reboot your computer.
- 11. How do I find a filing event if I do not know the exact name?
CM/ECF offers a “Search” feature on the menu bar. Type in a whole or partial key word and click on the magnifying glass. The search will return a list of all filing events that meet the search criteria. If the one you are looking for appears in the list, you may click on the event name to begin filing with the Court.
- 12. Can I combine several PDF documents into one PDF document?
Yes. In most versions of Adobe Acrobat, open the first document then click on Document then Insert Pages. Browse to locate the next document to be added and follow the prompts. This may be done as many times as needed to create the required document. Once all documents have been combined, select File then Save As to save the current version of the document.
- 13. What is the difference between the PACER system and the CM/ECF system?
PACER is the service offered by the U.S. Courts that allow persons who have signed up with the PACER Billing Center to VIEW case information. With this service, users are charged a fee per page for all information viewed. A single PACER account allows the user to view case information from any participating court's PACER system. Filing of documents can not be performed using a PACER account login. Any person can request a PACER account through the PACER Billing Center.
CM/ECF is a service offered by each individual court that allows users to electronically file documents with the court. There is no fee charged for using CM/ECF, however accounts are maintained by each court. Registered electronic filers must meet the prerequisites for that court prior to receiving an account. A CM/ECF login is only valid within the specific court applied to. If users need to use CM/ECF to file documents in multiple courts, they will need to request logins and passwords from each individual court.
When participants use CM/ECF to file a document, all parties in the case are entitled, through PACER, to receive "one free look" at the documents filed by using the hyperlinks through the Notice of Electronic Filing (NEF). Please note that after 15 days the "one free look" option will expire. Any other information accessed through PACER will be charged the per-page fee.
CM/ECF allows users to "link" their CM/ECF login to their PACER login for seamless switching between filing and viewing documents. Once this link is established with any court's CM/ECF system, users will not be required to log in to PACER when switching to viewing functions.