BY THE GENERAL PUBLIC OR A PARTY TO A BANKRUPTCY CASE:
I received a document today and I don’t understand what it means.
Interpreting a document constitutes legal advice and court staff are not permitted to give legal advice–doing so would be unfair to the other parties and the advice may not be appropriate to your particular circumstances. Consult your attorney.
If the document is a letter that came from the Bankruptcy Judge or an e-mail or letter that came from the Bankruptcy Clerk, you may respond to seek clarification. Be mindful, however, of any deadlines or time restrictions referenced in the letter or the e-mail. Don't assume your confusion means those deadlines or time restrictions don't still apply.
I received a notice and I don’t know why I am receiving it. If you received a notice in a bankruptcy case, it is most likely because you were listed by the debtor as a creditor or because another party is seeking an order from the Bankruptcy Court that may affect you or your property. Consult your attorney.
I don’t know the people who filed for bankruptcy. Do they own a business? An individual debtor who has filed bankruptcy is required to list on his or her petition any business name he or she currently uses or has used during the prior eight years. These business names are sole proprietorships and will be listed in the caption of the case as the debtor's "doing business as" or "formerly doing business as" names.
The caption will not include any formal business entities in which the debtor may hold an interest, such as a corporation or a limited liability company. The debtor is required to disclose any interest he or she has in a formal business entity on the schedule of assets and in the statement of financial affairs, but these business entities' debts are not included in the individual debtor's bankruptcy case. You may obtain a copy of a debtor's schedules and statement of financial affairs from the clerk's office. There is a per page fee for the copy. You may also register with PACER to view the electronic case file. Click here to learn more about PACER and to register to use it.
If you are an attorney, you must file the completed Proof of Claim using CM/ECF. Creditors not represented by an attorney may mail the fully completed and signed Official Form 410 to the Bankruptcy Clerk. A creditor or an attorney for a creditor may also file a Proof of Claim electronically using the Court's ePOC program. To learn more about ePOC, click here.
What does the Bankruptcy Court do? The Bankruptcy Court is comprised of two units, the Bankruptcy Judge's Chambers and the Bankruptcy Clerk's office. The Bankruptcy Judge's duty is to hear and resolve disputes that arise in bankruptcy cases and related adversary proceedings, which are like a lawsuit within a bankruptcy case. He and his staff also work with the Bankruptcy Clerk, the United States Trustee, and the case trustees to ensure each case is administered efficiently and that all provisions of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure are followed. The Bankruptcy Clerk's office maintains the electronic docket for all bankruptcy cases filed in the District of South Dakota and helps attorneys and other filers with issues that arise regarding filing and serving documents and giving notice of proposed actions. The Bankruptcy Clerk and his staff also work closely with the Bankruptcy Judge to make sure orders get entered promptly, and they work with the Bankruptcy Judge, the United States Trustee, and the case trustees to ensure each case is administered efficiently.
What does a case trustee do? In a chapter 7 case, the trustee collects and liquidates nonexempt assets and uses the proceeds to pay claims against the debtor. In a chapter 12 case for farmers and a chapter 13 case for wage earners, the trustee helps with the administration of the case and then pays creditors' claims in accordance with a plan the Bankruptcy Court approves. Not all chapter 11 cases have a trustee, but if they do, the trustee's duties will vary, depending on what type of chapter 11 case the debtor has filed.
Is the case trustee a court employee? Case trustees are appointed by the United States Trustee, whose office is an arm of the United States Department of Justice. Case trustees are not federal employees but are private citizens selected to perform certain duties prescribed by the Bankruptcy Code. They must be bonded, and their books and records are regularly audited. The trustee does not work for the debtor or for the creditors but for the bankruptcy estate itself, with the goal of ensuring the case is administered in accordance with the Bankruptcy Code. The fees for the trustee's services under each chapter are paid from the bankruptcy estate.
What event should I use to electronically file my motion, application, notice, response, objection, etc., in CM/ECF? Our Electronic Filing Guide may help you electronically file a particular document in CM/ECF. Click here to view it. Otherwise, please call the Bankruptcy Clerk's office at (605) 357-2400 if you are having trouble deciding which event to use. We are happy to help. It is much easier to help you avoid a filing error than to correct one.
How many days do I allow for objections regarding my motion, application, etc.? The local bankruptcy rules will guide you regarding the service and notice requirements for most documents. Click here to view the local rules. You may also review our Notice and Service Requirements chart, which is sometimes known as the "Cheat Sheet." Click here to view the chart.
How do I determine which parties I need to serve with a particular motion, application, notice, response, objection, etc.? The local bankruptcy rules will guide you regarding the service and notice requirements for most documents. Click here to view the local rules. You may also review our Notice and Service Requirements chart, which is sometimes known as the "Cheat Sheet." Click here to view the chart.
What does the discharge do? A discharge of debts eliminates a debtor's personal liability on a pre-petition claim. Once a debt is discharged, the creditor holding the claim may no longer try to collect it from the debtor. With few exceptions, a discharge does not affect any liens or mortgages on the debtor's property, so the debtor still needs to pay those secured claims if the debtor wants to protect the secured property from being sold to pay the debt.
There are certain debts that are never discharged, such as child support and criminal restitution obligations. Other debts may be excepted from discharge because of fraud or other misdeeds by the debtor, if the creditor timely files an appropriate complaint and the Court determines the creditor's claim is not dischargeable. Student loans are generally not discharged; rarely, a debtor may get some or all of his or her student loans discharged if the debtor seeks a determination by the Bankruptcy Court that the student loans impose an "undue hardship" on the debtor and the debtor's dependents. "Undue hardship" is a very tough legal standard. It's best to discuss the details regarding all the exceptions to discharge with your bankruptcy attorney.
A formal business entity such as a corporation or a limited liability company that files chapter 7 never receives a discharge because the business is liquidated.
What happens if a debtor owes child support or alimony? Child support and alimony obligations must always be paid; they will not be discharged in a bankruptcy case.
What is the main reason people file bankruptcy? Do you see much gambling debt? There are many reasons people in South Dakota file bankruptcy. No formal study has been recently done to pinpoint why.
I think a debtor has hidden assets or otherwise cheated in his or her bankruptcy case. What should I do? The United States Trustee, in cooperation with other federal agencies, is responsible for investigating possible fraud in bankruptcy cases. Here is the contact information for the United States Trustee's regional office:
Can you tell me who has filed bankruptcy? If you want to know whether a particular person or business has filed bankruptcy, you may call the Bankruptcy Clerk's office at (605) 357-2400 or you may check on-line using PACER. Click here to learn more about PACER and to register to use it.
Are bankruptcy filings in South Dakota up or down this year? On the Court's website under Court Information/Statistics, you will find our case filing statistics for the current year and for prior years back to 1995. Click here to view. It is updated monthly.
BY A DEBTOR:
I need to file for bankruptcy, but I can’t afford an attorney. Can I file bankruptcy by myself? An individual may file bankruptcy without the assistance of an attorney. A married couple may also file bankruptcy without an attorney; both must sign and date all documents and jointly appear at any hearing or conference. For more information on filing without an attorney, click here.
A corporation, limited liability company, partnership, or other formal business entity may file bankruptcy only with the assistance of an attorney.
I need to file bankruptcy but I don’t have any money. Who can I call or where can I go to get financial assistance? There are many for-profit companies out there that will tell you they can help you avoid paying your creditors. Be very, very cautious. Few are reputable and few deliver on their promises. Check each out with the Better Business Bureau before using their services. The better option when you need financial guidance but feel you cannot afford a bankruptcy attorney is to contact a local nonprofit agency such as one of these:
There are also businesses (not really even law firms) that heavily advertise on the internet that they can help you inexpensively file bankruptcy. Again, be very cautious. Check each out with the Better Business Bureau before using their services. Using a local attorney is always a better option. The State Bar of South Dakota maintains a Lawyer Referral Service that may help you find a qualified local attorney to assist you in filing bankruptcy. Click here to learn more.
Finally, you may qualify for a no-cost or a low-cost attorney to help you file bankruptcy from one of these programs:
State Bar of South Dakota's Access to Justice Program
Who do you recommend for an attorney to help me? Court staff cannot recommend which attorney you should employ to help you. The State Bar of South Dakota maintains a Lawyer Referral Service that may help you find a qualified local attorney. Click here to learn more. Be very wary of bankruptcy services offered on the internet. Some are not reputable; others barely so. Check each out with the Better Business Bureau before using their services. Using a local attorney is always a better option.
May I file documents electronically? or by fax? or by e-mail? Only attorneys admitted to the federal bar for the District of South Dakota and registered limited filing users may file documents electronically using the CM/ECF program. Unless a debtor is an attorney, the debtor may not electronically file documents.
No parties, whether a debtor, a creditor, a trustee, or an attorney for a party, may file documents by fax or by e-mail.
How often can someone file bankruptcy? There is no simple answer. When a debtor may file another bankruptcy case depends on several circumstances, including under what chapter the debtor previously filed and whether he or she received a discharge of debts in the prior case. You will need to discuss your particular circumstances with a bankruptcy attorney.
I need a copy of my discharge order. How can I get it? If your attorney does not have a copy of the discharge order, call the Bankruptcy Clerk's office at (605) 357-2400. The office can provide a copy for a small fee. You may also register with PACER to view the electronic case file and print documents from it for a small fee. Click here to learn more about PACER and to register to use it.
How do I get a bankruptcy removed from my credit report? The Bankruptcy Court does not have jurisdiction over credit reporting agencies. The Fair Credit Reporting Act, which begins at 15 U.S.C. § 1681, states a credit reporting agency may not report a bankruptcy case on a person's credit report after ten years from the date the bankruptcy case was filed. Other bad credit information is removed after seven years. The larger credit reporting agencies belong to an organization called the Associated Credit Bureaus. The policy of the Associated Credit Bureaus is to remove chapter 11 and chapter 13 bankruptcy cases from the credit report after seven years to encourage debtors to file under these chapters.
For further information on re-establishing credit and addressing credit problems, you may contact the Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, D.C. 20580. The Federal Trade Commission's website is www.ftc.gov, and its telephone number is (202) 326-2222. These local organizations may also be able to assist you: