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List of Forms
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Table of Contents
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List of Forms by Chapter
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Chapter 1 — Representing Clients in Bankruptcy Cases
- I. [1.1] Introduction
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II. [1.2] Judicial Structure and Jurisdiction
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III. [1.7] Commencement of a Case
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IV. [1.13] Estate
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V. [1.22] Bankruptcy Players
- VI. [1.28] Automatic Stay
- VII. [1.29] Creditors and Claims; Filing of Proofs of Claim and Interest
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VIII. Chapter 7
- [1.30] Generally
- [1.31] Trustee’s Duties
- [1.32] Election of Trustee
- [1.33] Chapter 7 Claims
- [1.34] Chapter 7 Creditors’ Committees
- [1.35] Conversion
- [1.36] Dismissal
- [1.37] Reaffirmation
- [1.38] Redemption
- [1.39] Avoidance of Certain Liens
- [1.40] Distribution of Property of the Estate
- [1.41] Discharge
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IX. Chapter 11
- [1.42] Alternatives to Chapter 11
- [1.43] Assignment for the Benefit of Creditors
- [1.44] Composition Agreement
- [1.45] Sale Under Article 9 of the Uniform Commercial Code
- [1.46] Eligibility for Chapter 11 Relief
- [1.47] First Day/Week Matters in Chapter 11 Cases
- [1.48] Use of Cash Collateral
- Issues Relating to the Use of Cash Collateral
- [1.49] Lender’s Perspective
- [1.50] Unsecured Creditors’ Perspective
- [1.51] Adequate Protection
- [1.52] Adequate Assurance for Utilities
- [1.53] Reclamation
- [1.54] 20-Day Administrative Claim
- [1.55] Meeting of the 20 Largest Creditors
- [1.56] Conversion to Chapter 7 or Dismissal
- [1.57] Employment and Compensation of Professional Persons
- [1.58] Employment Under Bankruptcy Code §327(c)
- [1.59] Compensation for Services Rendered and Reimbursement of Expenses
- Operation of the Chapter 11 Business
- [1.60] Generally
- [1.61] Doing Business with the Debtor-in-Possession
- [1.62] Sale of Property
- [1.63] Bankruptcy Code §365 and Executory Contracts
- [1.64] Time Limits
- [1.65] Assumption
- [1.66] Assignment
- [1.67] Rejection
- [1.68] Chapter 11 Plan
- [1.69] Contents of Plan
- [1.70] Classification of Claims
- [1.71] Plan Confirmation
- [1.72] Acceptance
- [1.73] Postpetition Disclosure and Solicitation
- [1.74] Concept of Impairment
- [1.75] Consensual Confirmation Under Bankruptcy Code §1129(a)
- [1.76] Cramdown or Nonconsensual Plan Confirmation
- [1.77] Fair and equitable standard or the absolute-priority rule
- [1.78] Does an exception to the absolute-priority rule exist?
- [1.79] Partially Secured Creditor and Bankruptcy Code §1111(b)
- [1.80] Modification of a Plan
- [1.81] Effect of Confirmation
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X. Chapter 13
- [1.82] Generally
- [1.83] Advantages of Chapter 13
- [1.84] Relations with Secured Creditors
- [1.85] Discharge in Chapter 13
- [1.86] Relationship to Prior Discharge
- [1.87] Stays of Action Against Codebtors
- [1.88] Advantages of Chapter 13 over Chapter 11
- [1.89] Eligibility
- [1.90] Regular Income Requirement
- [1.91] Entitlement Programs
- [1.92] Pensions
- [1.93] Income from Sale of Property
- [1.94] Debt Limits
- [1.95] Noncontingent Debt
- [1.96] Liquidated Debt
- [1.97] Undersecured Claims
- [1.98] Initiation of a Chapter 13 Case
- [1.99] Property of the Estate
- [1.100] Right of Redemption
- [1.101] Property of the Estate Revests in the Debtor at Confirmation
- [1.102] Property upon Conversion to Chapter 7
- [1.103] Prepetition Levy, Sale, or Conveyance
- [1.104] Claims
- [1.105] Informal Claims
- [1.106] Failure To Timely File Proof of Claim
- [1.107] Codebtor Stay
- [1.108] Modification of the Stay
- [1.109] Exceptions to the Codebtor Stay
- [1.110] Filing and Allowance of Postpetition Claims
- [1.111] Conversion or Dismissal
- [1.112] Voluntary Dismissal
- [1.113] Effect of Dismissal
- [1.114] Avoidance Powers
- Role of Chapter 13 Trustee
- [1.115] Standing Trustee
- [1.116] Trustee Compensation
- [1.117] Special Role
- [1.118] Avoidance and Recovery Powers
- Chapter 13 Plan
- [1.119] Submission of Future Income
- [1.120] Applicable Commitment Period
- [1.121] “Projected Disposable Income” and “Disposable Income”
- [1.122] Full Payment of Priority Claims
- [1.123] Permissive Provisions
- [1.124] Modifying the Rights of Secured Creditors
- [1.125] Curing Defaults on Secured Debt
- [1.126] Effect of Confirmation
- [1.127] IRS Setoff in Debtor’s Tax Refund
- XI. [1.128] Conclusion
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Chapter 2 — Collections
- I. [2.1] Scope Chapter
- II. [2.2] Establishment and Maintenance of Monitoring Procedures
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III. Prefiling Concerns
- [2.3] Review of Documents
- [2.4] Potential Responsible Parties
- [2.5] General Partnerships
- [2.6] Limited Partnerships
- [2.7] Limited Partner’s Liability
- [2.8] General Partner’s Liability
- [2.9] Businesses Conducted Under an Assumed Name
- [2.10] Corporations
- [2.11] Involuntary Dissolution
- [2.12] Voluntary Dissolution
- [2.13] Limited Liability Companies
- [2.14] Dissolved Limited Liability Companies
- [2.15] Involuntarily Dissolved Limited Liability Companies
- [2.16] Individuals
- [2.17] Co-Obligors, Cosigners, and Guarantors
- [2.18] Primary Obligor in Bankruptcy
- [2.19] Motor Vehicle Installment Agreements
- [2.20] Retail Installment Sales Act
- [2.21] Family Expense Statute
- [2.22] Review for Possible Defenses
- Contractual and Statutory Prejudgment Interest
- [2.23] Contractual Interest
- [2.24] Statutory Interest
- [2.25] Identification of the Event of Default
- [2.26] Acceleration Clauses
- [2.27] Nervous Clauses
- Limitations on Enforcement
- [2.28] Four-Year Limitation — Sale of Goods
- [2.29] Five-Year Limitation — Oral Contracts and Recovery of Property
- [2.30] Ten-Year Limitation — Negotiable and Nonnegotiable Instruments and Other Contracts
- [2.31] Collection Letters
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IV. Fair Debt Collection Practices Act
- [2.32] In General
- [2.33] Consumer Financial Protection Bureau Publication of Notice of Proposed Rulemaking to Implement Changes to the Fair Debt Collection Practices Act
- [2.34] Definitions
- [2.35] Debt Collector
- [2.36] Consumer
- [2.37] Consumer Debt
- [2.38] Communication
- [2.39] Location Information
- [2.40] Communication with Debtor and Third Parties
- [2.41] Communication by Phone
- [2.42] Communication with Debtor’s Attorney
- [2.43] Phone Calls to Debtor at Place of Employment
- [2.44] Communication with Debtor by Mail
- [2.45] Prohibited Conduct
- [2.46] Abuse and Harassment
- [2.47] False or Misleading Representations
- [2.48] Unfair Practices
- [2.49] Communication with Third Parties
- [2.50] Ceasing Communications
- [2.51] Affirmative Compliance Requirements
- [2.52] Pseudo-Miranda Warning
- [2.53] Validation Notice
- [2.54] 30-Day Moratorium
- [2.55] Disputed Debts
- [2.56] Applicability Once Court Action Is Commenced
- [2.57] Liability for Fair Debt Collection Practices Act Violations
- [2.58] Summary
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V. [2.59] Commencement of the Action
- [2.60] Jurisdiction
- [2.61] Venue
- [2.62] Businesses
- [2.63] Individuals
- Suits on Contract, Note, or Account
- [2.64] Complaint and Summons
- [2.65] Small Claims Cases
- [2.66] Law Medium and Law Cases
- Credit Card and Debt Buyer Collection Actions
- [2.67] Rules governing credit card and debt buyer collection actions
- [2.68] Applicability of Supreme Court Rule 280
- [2.69] Credit card actions
- [2.70] “Credit card” defined
- [2.71] Debt buyer collection action
- [2.72] “Consumer debt” and “consumer credit” defined
- [2.73] Complaint and affidavit requirements
- [2.74] Credit card or debt buyer collection affidavit
- [2.75] Identification of the consumer debt or account
- [2.76] Required documentation demonstrating the debt
- [2.77] Proof of ownership or right to sue on the debt
- [2.78] Additional account information following charge-off
- [2.79] Signature and certification
- [2.80] Consequences for failing to comply with Supreme Court Rule 280
- [2.81] Restrictions on motions for voluntary dismissal or continuance on the day of trial
- [2.82] Identity theft provision: shifting the burden of proof to the plaintiff
- [2.83] Failure to file a responsive affidavit will result in dismissal of the action
- [2.84] Verification
- [2.85] Service of Process
- [2.86] Corporations
- [2.87] Limited Liability Companies
- [2.88] Partnerships
- [2.89] Limited Partnerships
- [2.90] Service by Special Order of Court
- [2.91] Service Within a Gated Residential Community
- Confession of Judgment
- [2.92] Use and Benefits
- [2.93] Consumer Transactions Excluded
- [2.94] Procedure
- [2.95] Venue
- [2.96] Complaint
- [2.97] Original Instrument
- [2.98] Enforcement of Judgment
- [2.99] Summons To Confirm Judgment by Confession
- [2.100] Motion To Open Confessed Judgment
- [2.101] Order Confirming Judgment by Confession
- [2.102] Replevin
- [2.103] Notice
- [2.104] Complaint
- [2.105] Hearing
- [2.106] Order for Replevin
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VI. [2.107] Enforcement of Judgments
- [2.108] Duration of Judgments
- [2.109] Consumer Debt Judgments
- [2.110] Nonconsumer Debt Judgments
- [2.111] Postjudgment Interest
- [2.112] Memorandum of Judgment
- Citation To Discover Assets
- [2.113] Purpose of Citation
- Benefits of Citation
- [2.114] Prohibition on Transfer of Assets
- [2.115] Lien on Personal Property
- [2.116] Failure of Party To Appear
- [2.117] Subsequent Citations
- [2.118] Wage Deductions
- Limitations on Wage Garnishment
- [2.119] Maximum Wages Subject to Garnishment
- [2.120] Calculating Disposable Income
- [2.121] Stacking
- [2.122] Service of Wage Garnishment Summons
- [2.123] Notice, Summons, and Affidavit
- [2.124] Interrogatories
- [2.125] Lien Against Future Wages
- [2.126] Creation of Garnishment Lien
- [2.127] Attachment of Garnishment Lien
- [2.128] Perfection of Garnishment Lien
- [2.129] Employer’s Obligations
- [2.130] Federal Agency Employer Exception
- [2.131] Quarterly Certification
- [2.132] Offsetting Claims
- [2.133] Adverse Claims
- [2.134] Debtor’s Right To Dispute
- [2.135] Deduction Order
- [2.136] Conditional Judgment Against Employer
- [2.137] Nonwage Garnishments
- [2.138] Joint Accounts
- [2.139] Turnover Order
- [2.140] Procedure
- [2.141] Creation of Lien by Service
- [2.142] Setoff
- [2.143] Conditional Judgment Against Garnishee
- Garnishment and Bankruptcy
- [2.144] Automatic Stay and the Pending Wage Garnishment Proceeding
- [2.145] Garnishment Lien Does Not Attach to Postpetition Wages
- [2.146] Debtor Has No Claim to Prepetition Wages
- [2.147] Levy
- [2.148] Limitations
- [2.149] Procedure
- [2.150] Exemptions
- [2.151] Workers’ Compensation Exemption
- [2.152] Homestead Exemption
- [2.153] Personal Exemptions
- [2.154] Retirement Plan Exemption
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VII. [2.155] Bankruptcy
- [2.156] Chapter 7 — Liquidation
- [2.157] Eligible Debtor
- [2.158] Exemptions
- [2.159] Redemption
- [2.160] Reaffirmation
- [2.161] Discharge
- [2.162] Chapter 13 — Reorganization
- [2.163] Eligible Debtor
- [2.164] Chapter 13 Plan
- [2.165] Plan Confirmation
- [2.166] Objecting to Confirmation
- [2.167] Modification of Plan
- [2.168] Claims in Chapter 13 Case
- [2.169] Codebtor Stay
- [2.170] Estate Property
- [2.171] Trustee
- [2.172] Discharge
- Matters Common to Chapters 7 and 13
- [2.173] Proofs of Claim
- [2.174] Automatic Stay
- [2.175] Nondischargeable Debts
- [2.176] Discharge of Debtor
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VIII. Appendix
- [2.177] Collection Letter — Consumer Debt
- [2.178] Collection Letter — Commercial Debt
- [2.179] Collection Letter — Consumer Mortgage
- [2.180] Motion for Service by Special Order of Court
- [2.181] Affidavit in Support of Motion for Service by Special Order
- [2.182] Small Claims Complaint
- [2.183] Date Certain Summons
- [2.184] Law Medium or Law Case Complaint
- [2.185] Credit Card Debt Complaint
- [2.186] Credit Card or Debt Buyer Collection Affidavit
- [2.187] Supreme Court Rule 222(b) Affidavit
- [2.188] 30-Day Summons
- [2.189] Complaint and Confession of Judgment
- [2.190] Order of Judgment on Complaint and Cognovit
- [2.191] Summons To Confirm Judgment by Confession
- [2.192] Order Confirming Confession of Judgment
- [2.193] Complaint in Replevin
- [2.194] Notice for Order for Replevin
- [2.195] Complaint in Replevin (Without Notice)
- [2.196] Order for Replevin (with Notice)
- [2.197] Order for Replevin (Without Notice)
- [2.198] Replevin Bond
- [2.199] Memorandum of Judgment
- [2.200] Affidavit as to Military Service
- [2.201] Petition To Revive Judgment
- [2.202] 30-Day Notice for Petition To Revive Judgment
- [2.203] Certificate of Service for Petition To Revive Judgment
- [2.204] Order Reviving Judgment
- [2.205] Citation To Discover Assets
- [2.206] Citation Notice
- [2.207] Wage Deduction Summons
- [2.208] Wage Deduction Notice
- [2.209] Affidavit for Wage Deduction Order
- [2.210] Interrogatories to Employer
- [2.211] Motion for Wage Deduction
- [2.212] Wage Deduction Order
- [2.213] Order Terminating Wage Deduction Proceedings
- [2.214] Non-Withholding Wage Deduction Order
- [2.215] Certification of Judgment Balance
- [2.216] Garnishment Summons — Nonwage
- [2.217] Nonwage Garnishment Notice
- [2.218] Affidavit for Garnishment and Interrogatories — Nonwage
- [2.219] Reaffirmation Agreement
- [2.220] Objection to Confirmation of Chapter 13 Plan
- [2.221] Objection to Confirmation of Amended Chapter 13 Plan
- [2.222] Motion for Relief from Automatic Stay
- [2.223] Order Terminating Automatic Stay
- [2.224] Agreed Order Resolving Motion for Relief from the Automatic Stay
- [2.225] Motion To Terminate Codebtor Stay
- [2.226] Order Terminating Codebtor Stay
- [2.227] Response to Motion To Redeem Personal Property
Authors
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Kevin C. Driscoll, Jr.
Kevin C. Driscoll, Jr.
Kevin C. Driscoll, Jr., is a Partner in Barnes & Thornburg LLP, in Chicago, where he represents secured and unsecured creditors in Chapter 7, 11, and 13 proceedings. A frequent lecturer and author, Mr. Driscoll has been published by the American Bankruptcy Institute Journal and other publications. Mr. Driscoll received his A.B. from the University of Illinois and his J.D. magna cum laude from the University of Illinois College of Law, where he was a member of the University of Illinois Law Review, which published his note concerning student loan debt in consumer bankruptcy.
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S. Linn Perkins
S. Linn Perkins
S. Linn Perkins is Member of Westervelt, Johnson, Nicoll & Keller, LLC, in Peoria, where she concentrates her practice in the areas of credit union law, mortgage foreclosure law, collections, and general business litigation. A frequent author and lecturer, Ms. Perkins has contributed to numerous IICLE® publications. She is a member of the Illinois State and Peoria County Bar Associations. She earned her B.S. from MacMurray College and her J.D. from the University of Illinois College of Law, where she was a recipient of the Rickert Award for Excellence and a National Finalist for the ABA National Negotiation Competition.
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Tyler W. Smith
Tyler W. Smith
Tyler W. Smith is an associate at Westervelt, Johnson, Nicoll & Keller, LLC, in Peoria, where he focuses his practice on bankruptcy, creditors’ rights, and collections. He is a member of the Illinois State and Peoria County Bar Associations and a member of the Bankruptcy Association of Southern Illinois. Mr. Smith earned his B.A. from the University of Illinois and his J.D. from the University of Illinois College of Law.
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Kerrianne L. Waters
Kerrianne L. Waters
Kerrianne L. Waters is an associate at Westervelt, Johnson, Nicoll & Keller, LLC, in Peoria, where she concentrates her practice in creditors’ rights, mass torts, estate planning, and expungements. She is a member of the Illinois State and Peoria County Bar Associations and serves on the Prairie State Legal Services Campaign Committee. Ms. Waters earned her B.S. from the University of Illinois at Champaign-Urbana and her J.D. from Southern Illinois University School of Law.
Elements of Illinois Law: Bankruptcy and Collections 2019 Edition
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