Why are we putting a Glossary on our website?
Partly because we’re lawyers and we really do sometimes speak a different language from normal people. So this can be helpful.
But bankruptcy is a very foreign idea to most people and the words used in the bankruptcy world can be confusing.
We hope this will help in a small way to bring clarity to the process for you.
Meeting of Creditors
The first hearing everyone who files bankruptcy must, and their creditors may, attend. Except in Chapter 11, it is overseen and conducted by the trustee assigned to the case. It is an inquiry into the property, income, and financial situation of the debtor.
A section of Chapter 7 bankruptcy law relating to dismissal of bankruptcy cases for “abuse” typically because the debtor is considered to have sufficient disposable income to repay some portion of unsecured debt in a Chapter 13 plan instead of wiping it all out.
Also see “abuse“
An court-ordered examination of a party to a bankruptcy case outside the normal hearing process. Taken under oath. Similar to a deposition in a civil case.
In a Chapter 7 proceeding, it is typically being projected to have even a relatively small amount of income left over each month that could be used to repay unsecured creditors. Sometimes, it relates to other financial circumstances which indicate the debtor is not acting in “good faith” in seeking bankruptcy relief.
A separate lawsuit within a bankruptcy case. It can be brought by many different parties to the bankruptcy case to either bring money or property into the case, to vindicate various rights, or to force a party to do something required or related to the bankruptcy proceeding. A separate filing fee is often charged, although waived or deferred under certain circumstances.
The amount due but not yet paid on a debt. In consumer bankruptcy cases, it is most commonly referring to the amount owed on a mortgage to bring the loan “current” under the mortgage contract.
In the broadest legal sense, this is all the things a debtor owns or to which he or she has any legal rights.
Typically, this means actual things like real estate (a home or other building) or personal property (like household goods, automobiles and so on). And it can also mean intellectual property like copyright works, patents, inventions or designs.
It can also be claims against others for things like personal injury, breach of contract or simply debts owed.
A provision of bankruptcy law which immediately stops debt collection activity of most kinds. It similar to, but not precisely the same as, a restraining order by a court commanding someone to stop doing something.
The idea of the automatic stay is to provide a debtor some peace and quiet from the constant demands of his or her creditors in order to either assist the court and its officers in the completion of the liquidation of non-exempt property (in Chapter 7) or in order to prepare, propose and (typically) carry out the terms of a reorganization plan (in Chapters 11, 12, and 13).
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, also known as the 2005 amendments. The most significant changes to bankruptcy law since 1978.
A negotiable instrument drawing on an account without sufficient funds to pay the amount on the instrument or on a closed account. In certain circumstances, the presenting of a bad check for payment is a criminal act.
A section of federal law. Title 11 of the United States Code, to be exact.
Although state law affects various property and legal rights in th bankruptcy process, there is no separate bankruptcy law for each state.
The property owned by a debtor upon filing bankruptcy, plus certain property acquired or earned during the case, and certain inheritances received during the 6-monthe period after filing. The estate can also recover certain property that may have been given or taken away during specific time periods prior to the beginning of the case.
The estate is also limited to property to non-exempt assets and property not excluded from the estate by law (e.g. 401(k) plans), or removed from the estate by operation of law or by motion and order of the court.
The subsection of bankruptcy law designed for small farms to reorganize their financial affairs under a plan they propose so that creditors can be repaid in whole or in part from future income and/or liquidation. See Chapter 12.
The subsection of bankruptcy law sometimes called “wage earner plan” for consumers and some small business owners with regular income and limited debt to reorganize financial affairs under a plan they propose so that creditors can be repaid from future income and/or liquidation. See Chapter 13.
The subsection of bankruptcy law added in 2005 related to coordinating the affairs of an American branch of a company involved in a bankruptcy or liquidation proceeding in a foreign country.
A very broad, inclusive term for a right to payment on a debt. A claim can be contingent on future events occuring, for as-yet-undetermined amounts, or subject to serious dispute.
A “claim” may refer to the right to seek a recovery for a wrong or an injury done as well.
The property pledged for repayment of a debt. A ‘pledge’ or granting of a lien on collateral can happen through a mortgage, a car loan agreement, or simply through the use of certain types of credit cards. Or it can be done involuntarily by operation of law or from a party taking a judgment in court which becomes a lien on property.
A legal principle which prevents a party to a legal proceeding from re-arguing issues already decided by a court. Similar to “res judicata.”
In bankruptcy, the transfer of a case from a proceeding under one Chapter to a proceeding under another Chapter, sometimes as a matter of right and sometimes allowed only with the court’s permission.
Can also refer to the taking of someone else’s property for one’s own use without the consent of the rightful owner (i.e. theft).
A compilation of information about a consumer about their use of consumer credit to be used typically by those considering the extension of credit to the consumer, or a few other approved uses (i.e. employment and collection purposes). Reports are maintained by credit reporting agencies, the best known being Equifax, Experian, TransUnion, and the “checking account” credit reporting agency, Chex Systems.
A free copy of your credit report must be provided on demand to a consumer once per year, for example through the Annual Credit Report website.
A bankruptcy debtor’s average gross income, based on the last six completed months, including certain contributions from third-parties but excluding certain types of income like Social Security benefits.
A party who owes or is alleged to owe money to another.
The term also refers to a person or entity who is in a bankruptcy case. It was adopted into bankruptcy law in 1978 to eliminate the use of the more negative word “bankrupt” to describe someone who has needed relief from debts in such cases.
A debtor in a Chapter 11 proceeding who remains in control of the property of the estate, so long as the bankruptcy court has not appointed a trustee. A debtor-in-possession has many of the powers and obligations of a trustee, most importantly to put the interests of creditors ahead of those who run or invested in the debtor.
Sometimes called a “breach of contract,” a default is a failure to perform an obligation under a contract. A default under a contract does not have to be intentional. Federal and state law sometimes limit the rights of another party to declare the other party in “default” and the contracts themselves sometimes provide for methods and costs of curing a default once it has occured.
A bankruptcy court order which eliminates the legal obligation to repay an obligation. A person who has received a bankruptcy discharge of debt is shielded from any attempt to collect it from him or her but may choose to voluntarily repay a debt.
What debts may or may not be discharged depends on your situation and the type of bankruptcy relief you pursue.
An amount owed to a spouse, former spouse, or dependent under a family court order. Typically alimony, maintenance, and child support.
A party legally obligated to care for the financial affairs of another and required to place the other party’s interests ahead of their own.
The deliberate use of misleading or false information or tactics to obtain another’s property or money.
The state of possessing an honest intention to act fairly and forthrightly with another party.
A court order determining an issue, most commonly determining if one party owes another a sum of money, any interest, or costs associated with the debt.
A right a party can grant to a creditor in property they have or are acquiring which secures — protects — the creditor’s right to payment. A default in the payment arrangements will typically give rise to the creditor’s right to take possession of the property and sell it to collect their obligation.
A fixed or relatively easily calculated amount. Typically this means an obligation amount that is either known or can be determined by a fixed formula, even if disputed.
The initial hearing in a bankruptcy case which is attended by the debtor (and lawyer), any trustee appointed in the case, and creditors who wish to attend. An opportunity for the parties to a case to ask the debtor questions about their financial condition, income, assets, liabilities and past transactions. Also referred to as a 341 Meeting.
A short-term very high interest loan, typically made on the security of a post-dated check most commonly to be repaid on or near the next payday.
The document used to open a bankruptcy case and seek the protection of the bankruptcy court and relief from the immediate payment of debts.
The system of determining in which order creditors are repaid from the estate. Certain creditors are granted favored treatment to partial or complete repayment prior to payment of lower “priority” claims. These are things like, the trustee’s commission, domestic support obligations, many taxes, consumer deposits, and so on.
A complex written transaction where a debtor, normally in Chapter 7, agrees to remain personally responsible for a debt which may otherwise be discharged at the conclusion of the case. Such agreements require the consent of the creditor, and sometimes the agreement of the debtor’s lawyer and/or the bankruptcy court.
Permission granted to a creditor to proceed with an act which might otherwise violate the automatic stay created at the beginning of a bankruptcy case. It is normally granted by the court only upon motion and hearing, upon a showing of good cause based on the bankruptcy law. It is granted automatically after certain time periods elapse or at the conclusion of a case by discharge, dismissal or closing without discharge.
The lists of assets, liabilities, income, expenses, and recent transactional history of the debtor in a bankruptcy case. Typically filed in the case at or near the beginning of the case and maintained as a public record by the court.
To be possessed of a right to share in the proceeds of the sale of an asset prior to the original owner due to a debt owed by the owner.
A court notice which advises a party that a court proceeding is occuring, a hearing may be scheduled and certain rights of the party may be adjudicated.
A court order compelling a party to appear and give evidence in a court proceeding and/or produce records or allow them to be examined.
A private party appointed most commonly by the U.S. Trustee (or Bankruptcy Administrator, in North Carolina and Alabama) to oversee a banrkuptcy proceeding. A trustee can also be elected by creditors. Trustees are responsible for collecting or recovering the property of the estate and liquidating it, then distributing it to creditors and accounting to the court.
A burden which is unreasonably harsh under the circumstances, for example resulting in a debtor being unable to maintain a minimal standard of living for which the debtor should not be held responsible.