Bankruptcy Process

Guiding you through the bankruptcy process

Whether you are filing a Chapter 7 or Chapter 13 bankruptcy, it is not a process you will wish to go through alone. You will need to organize and provide various financial information, and anything discovered as inaccurate or incomplete could result in the delay or dismissal of your case. A dismissal could mean you end up having to pay off your creditors on their terms.

The lawyers at Ribstein & Hogan have handled Chapter 7 and Chapter 13 filings for hundreds of South Dakotans. We understand what steps to take to discharge your debt. Through our services, we guide you towards financial freedom

Steps concerning a bankruptcy filing

There are specific steps that coincide between filing for Chapter 7 and Chapter 13. This includes the requirement to go through credit counseling before filing a bankruptcy petition. In both instances, you will need to organize and provide a great deal of paperwork. The key difference between a Chapter 7 and a Chapter 13 in terms of documents to be filed is that in a Chapter 13 you must file a Chapter 13 Plan as well as a slightly different form for the means test.

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South Dakota Chapter 7 process, from start to finish

A Chapter 7 case begins with filing a petition with the bankruptcy court which serves the area where you live. In addition to the petition, you must also file various schedules and sworn statements.

The Chapter 7 filing fee is $335. The fees must be paid to the clerk of the court upon filing. In order to complete the official bankruptcy forms that make up the petition, statement of financial affairs, and schedules, you must provide the following information:

• A list of all creditors and the amount and nature of their claims
• The source, amount, and frequency of the debtor's income
• A list of all of the debtor's property
• A detailed list of the debtor's monthly living expenses, i.e., food, clothing, shelter, utilities, taxes, transportation, medicine, etc.

Meeting of the Creditors (341 Meeting)

Between 21 and 40 days after the petition is filed, the case trustee will hold a Meeting of Creditors (341 Meeting). During this meeting, the trustee puts the debtor under oath, and both the trustee and creditors may ask questions. You must attend the meeting and answer questions regarding your financial affairs and property. If a husband and wife have filed a joint petition, they both must attend the creditors' meeting and answer questions. It is important to cooperate with the trustee and to provide any financial records or documents that the trustee requests.

Chapter 7 discharge

A discharge releases you from personal liability for most debts and prevents creditors from taking any collection actions against you. Because a Chapter 7 discharge is subject to many exceptions, debtors should consult competent legal counsel before filing in order to discuss the scope of the discharge. Generally, individual debtors receive a discharge in more than 99% of Chapter 7 cases. In most cases, unless a party in interest files a complaint objecting to the discharge or a motion to extend the time to object, the bankruptcy court will issue a discharge order anywhere from 60 to 90 days after the date first set for the Meeting of Creditors.

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South Dakota Chapter 13 process, from start to finish

Rather than discharge debts, Chapter 13 allows you to reorganize your secured and unsecured debt in a more manageable manner. Under a Chapter 13 filing, you will begin by filing nearly the exact same set of forms as in a Chapter 7 bankruptcy with a filing fee of $310.00. Additionally, you will have to:

Participate in a Meeting of Creditors

Between 21 and 50 days after the you file your Chapter 13 petition, the Chapter 13 Trustee will hold a Meeting of Creditors. This is exactly the same process as under Chapter 7, so please refer back to that section to learn more.

Prepare a Chapter 13 repayment plan

You will need to submit a payment plan to the court within 14 days of filing the petition to describe how you plan on repaying your existing debts. The Plan is subject to court approval and must provide for payments of fixed amounts to the trustee on a monthly basis.

Your Plan does not need to include full payment of all unsecured claims so long as it meets certain legal requirements. The Plan must pay to creditors all of your projected disposable income over an applicable commitment period, which must be at least as much as they would receive if you had filed under Chapter 7 and had your assets sold. Disposable income and an applicable commitment period will depend on your specific case.

Get your proposed plan approved in a confirmation hearing

No later than 45 days after the Meeting of Creditors, the bankruptcy judge must hold a confirmation hearing and decide whether the plan meets the standards for confirmation set forth in the Bankruptcy Code.

Your creditors may object to the confirmation. If that happens, your lawyer will work with you to modify your proposed Plan to make it acceptable. But if the creditors can't be pleased, it will be up to you and your lawyer to decide if there is good legal basis for the judge to make the final determination.

Once the Plan is confirmed, the Chapter 13 trustee then distributes the funds to creditors according to the terms of the plan.

Making the plan work

Once the court confirms the plan, it is up to you to make the plan succeed. You must make regular payments to the trustee, which will require an adjustment to living on a fixed budget for a prolonged period. In addition, it’s important to remember that you are not allowed to take on any new debt without consulting the trustee and without court approval.

If you do not make the payments due under the Plan, the court may dismiss the case or convert it to a Chapter 7 case. The court may also dismiss or convert your case if you don't pay any post-filing domestic support obligations (i.e., child support, alimony), or fail to make required tax filings during the case.

Occasionally, a change in circumstances may leave you unable to make plan payments. If that happens, your Plan may be modified either before or after confirmation.

The Chapter 13 discharge

The discharge in a Chapter 13 case is somewhat broader than in a Chapter 7 case. You are entitled to a discharge upon completion of all payments under the Chapter 13 plan so long as you:

• Certify that all domestic support obligations that were due prior to making such certification have been paid in full
• Have not received a discharge in a prior case filed within a certain time frame (two years for prior Chapter 13 cases and four years for prior Chapter 7, 11 and 12 cases)
• Have completed an approved course in financial management

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Tailored legal advice

The team at Ribstein & Hogan Law Firm has been providing bankruptcy services for over 25 years and can guide you through the process. For your convenience, we are here to answer your questions and handle your case filing virtually – you will not have to leave the comfort of your home. To find out more and receive a free, no-obligation case evaluation with one of our experienced bankruptcy lawyers call (605) 692-1818 or fill out our contact form below.

We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.