Voluntary Bankruptcy Cases

Posted by & filed under General Bankruptcy.

Providing the party is qualified to be a debtor, a voluntary bankruptcy case is commenced when the debtor files a petition with the bankruptcy court under the chosen chapter of Title 11 of the Bankruptcy Code. A debtor’s bankruptcy petition is a plea for equitable protections with a discharge from debts being the principal relief sought. The “case” triggered by a bankruptcy petition is umbrella litigation often covering numerous actions that are related only by the debtor’s status as a litigant. The filing of a petition invokes an automatic stay of certain acts and proceedings against the debtor, the debtor’s property, and the property of the estate.

The petition must be filed with the clerk of the court, who is the bankruptcy court clerk if one has been appointed for the appropriate district, and if no such clerk has been appointed, then the petition should be filed with the clerk of the district court. Under appropriate circumstances, certain lists, schedules, statements, certificates, tax returns, and documents may be required to accompany the filing of the voluntary petition or to be filed shortly thereafter.

There is no express time limit under the Bankruptcy Code within which a debtor must seek out the benefits and the burdens of a voluntary bankruptcy petition. It is recognized that debtors cannot in advance voluntarily waive the right to file a voluntary bankruptcy petition. Thus, a contract clause that restricts the debtor’s ability to file a voluntary bankruptcy petition has been considered void on the ground of public policy.

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