VOLUNTARY PETITION OFFICIAL FORM 1 TO FILE A BANKRUPTCY
In order to file a bankruptcy case in the District of South Carolina, the Voluntary Petition must be filled out correctly. Many debtors do not take the time to carefully review this three page document before it is signed and filed. Cases have been dismissed because the petition was so poorly filled out by the debtor and/or their attorney. Bankruptcy is very different from most other areas of the practice of law. A debtor is responsible for every word that is in the petition or schedules.
The instructions on how to fill out the Voluntary Petition run 14 pages. You will have to use this form whether you file your case in the Charleston, South Carolina division or the Columbia, South Carolina or Spartanburg, South Carolina divisions. If the professionals have to take 14 pages to give the instructions, then you begin to see how very difficult it may be to fill out the Voluntary Petition correctly. One old maxim is that garbage in causes garbage out. If you do not answer the questions asked of you by your attorney completely and correctly, there may be mistakes in your petition. If there are mistakes, you may have a very uncomfortable time trying to explain to the Court, creditors or a Trustee why you did not catch the mistakes.
Incredibly, people come to my office wanting to read the schedules on the way to an appointment that they are already late for. They also fail to bring their glasses to read the schedules or bring small children who will not allow the debtors to study the schedules.
Let’s go through the Voluntary Petition to see where mistakes are often made:
Most of these mistakes are easily avoided by simply slowing down and taking time to check the paperwork. Incredibly, but, many people will fail to check the spelling their own name. When you are asked under oath at the hearing if you have read the paperwork and is it true and correct, how convincing do you think you are if you did not even check the spelling of your own name.
The next mistake is that debtors will fail to list all of their names. Women have this problem regularly because when they get married, they may hyphenate, give up their middle name, maiden surname or some combination thereof. Men have a similar problem if they were a Junior and their father has died. The debtor’s father may be deceased, but, the birth certificate will still show a Junior as part of the debtor’s name. Credit may be in your formal name or in some nickname. Every combination or variation of your name should be listed. If a creditor misspelled your name on a bill or credit report, you need to list that error on the petition as an alias.
The address of the debtor should be listed correctly as of the date of the filing of the Voluntary Petition. If you are going to be moving or get your mail at another address, that is easily done if you tell your attorney. Make sure that the correct Zip Code is put on your paperwork as this will determine where you case is set to be heard. When you are planning to go to Charleston, South Carolina for your hearing, it can be a problem if you are suddenly told you have to go to Columbia or Spartanburg, South Carolina. Remember, all information is as of the date of the actual filing of the petition.
The Voluntary Petition requires that the last four digits of your Social Security number. This can easily be transposed by the person typing this into your Voluntary Petition. Double check these numbers.
Make sure that the boxes on the Voluntary Petition are marked correctly. If you are an individual or joint debtor with your spouse, your case will be treated differently than if you are a corporation, partnership or some “other” type of entity. Most importantly, only individual or joint debtors can obtain a discharge in bankruptcy. Most individuals or couples want a discharge as there is very little reason to file bankruptcy if you do not obtain a discharge.
If you are a business and not an individual or married couple, you do not have to worry about the next box. This box wants to know what type of business you are. Congress has decided that certain types of business must meet certain rules. An easy example is if a medical provider goes bankrupt, it must take care of the medical records so that they are not lost.
The next box requires that the Chapter the debtor is trying to file under be designated. Everyone needs to know what a debtor is trying to do. Does the debtor want to try and repay some or all of his creditors. Is the debtor simply walking away or will there be some attempt to pay the debtors’ creditors. The choice between the various chapters is not as simple and straight forward as may appear. Filing a straight bankruptcy may still allow you to keep your home or car. Filing a reorganization of your debts may cause you to still have too much debt to keep something that you want to keep or stop you from moving to a better job or affording additional training.
If you talk with an attorney and all Chapters are not at least mentioned, that attorney probably does not file under all chapters of bankruptcy. If you talk only to a paralegal and it appears that what chapter you are fling under has been decided before you even talk to an attorney, then leave and go to another firm where an attorney can look at your options with you.
I will skip boxes until I get to the section about types of debt. If most of your debt was incurred as a result of a business, then be sure to discuss this with your attorney. A credit card may have been used to pay salaries or employees or it could have been used to buy a new television for the family.
The final box that I will discuss is the one about cases that you have filed in the past 8 years. If you have, you must make sure that those cases are listed in the boxes. Failure to do so may cause your case to be dismissed. Even if your case is not dismissed, you may not be entitled to a discharge in some situations. Whether you filed in the District of South Carolina or some other district is immaterial. If you fail to list the prior cases, your attorney may not plan your bankruptcy strategy properly.
What I have done is listed out some common issues regarding the Voluntary Petition and mistakes that are made. The debtor(s) and the attorney must both strive to make sure that everything is correct.
Take your time and make sure that everything is typed out correctly including being correctly spelled.