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Maverick
Maverick, Attorney
Category: Bankruptcy Law
Satisfied Customers: 3431
Experience:  Bankruptcy Law With An Accounting Degree - 13 + years as civil lawyer
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We did not receive a court order for past due child support

Resolved Question:

We did not receive a court order for past due child support (foster care) until after we filed for bankruptcy. They are not on our list of creditors. Bankruptcy court is taking our tax return. Can we file on behalf of the State for money owed them prior to filing? Do we need to add them to the creditors?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  Maverick replied 5 years ago.

Need clarification...what is meant by "Bankruptcy court is taking our tax return" ?

 

Generally, child support obligations are not dischargeable under Chapter 7. The bankruptcy will not affect the state's ability to collect past-due support, but the automatic stay may prevent them from attempting to collect pre-bankruptcy-petition past-due child support from property in the bankruptcy estate.

 

Like Chapter 7, Chapter 13 does not change the obligation to pay ongoing support. Usually the Chapter 13 trustees will not recommend confirmation of a Chapter 13 plan if post-petition child support is behind.

 

Also, note that before filing a contempt action to collect past due child support, the state / creditor may need to get a order from the bankruptcy court. Although the automatic stay does not apply to collection of child support against property that is not property of the estate, in a Chapter 13, the debtor's earnings are property of the estate, and most of the time that's all there is to collect.

 

Where an order is needed, however, the courts in this jurisdiction generally grant them as a matter of course, usually without a hearing. And, while the Chapter 13 is pending, any collection activity outside the bankruptcy court must be limited to support payments that came due after the Chapter 13 was filed.

 

For example, let's say Debtor owes back child support of $1,500 when she files her bankruptcy case on July 1. Then, in September, she falls behind again, to the tune of another $300. If the state files a contempt action at that time, it will be to collect $300, not the entire $1,800 that is then due.

 

Past due support obligations are generally required to be paid in full through the debtor's plan. Support debts have a first priority, meaning they are paid before other kinds of priority debts, like taxes.

 

The state must be listed as a creditor and it must also file a claim to receive any payment at all from a trustee. Most courts send out claim forms along with the notice of the initial bankruptcy filing, and will include instructions for filing the claim with the court.

If the state was not listed as a creditor you may need to amend the BK filing to include the state as a creditor so they can file the claim.

 

 

Expert:  Maverick replied 5 years ago.

Generally, child support obligations are not dischargeable under Chapter 7. The bankruptcy will not affect the state's ability to collect past-due support, but the automatic stay may prevent them from attempting to collect pre-bankruptcy-petition past-due child support from property in the bankruptcy estate.

 

Like Chapter 7, Chapter 13 does not change the obligation to pay ongoing support. Usually the Chapter 13 trustees will not recommend confirmation of a Chapter 13 plan if post-petition child support is behind.

 

Also, note that before filing a contempt action to collect past due child support, the state / creditor may need to get a order from the bankruptcy court. Although the automatic stay does not apply to collection of child support against property that is not property of the estate, in a Chapter 13, the debtor's earnings are property of the estate, and most of the time that's all there is to collect.

 

Where an order is needed, however, the courts in this jurisdiction generally grant them as a matter of course, usually without a hearing. And, while the Chapter 13 is pending, any collection activity outside the bankruptcy court must be limited to support payments that came due after the Chapter 13 was filed.

 

For example, let's say Debtor owes back child support of $1,500 when she files her bankruptcy case on July 1. Then, in September, she falls behind again, to the tune of another $300. If the state files a contempt action at that time, it will be to collect $300, not the entire $1,800 that is then due.

 

Past due support obligations are generally required to be paid in full through the debtor's plan. Support debts have a first priority, meaning they are paid before other kinds of priority debts, like taxes.

 

The state must be listed as a creditor and it must also file a claim to receive any payment at all from a trustee. Most courts send out claim forms along with the notice of the initial bankruptcy filing, and will include instructions for filing the claim with the court.

If the state was not listed as a creditor you may need to amend the BK filing to include the state as a creditor so they can file the claim.

 

Please click ACCEPT so I can get credit for my work. We can continue our conversation after this at no additional charge. Thank you for the opportunity to assist you.

 

Expert:  Maverick replied 5 years ago.

See answer above also.

 

To answer your question about adding the state as a creditor, yes I think you need to do that and list that they have a claim for child support. As to whether you can file the claim form for them, I would think that the claim form will probably require a signature of an authorized state rep, so I am not sure how you as a debotr could file the form for the state who is a creditor.

Customer: replied 5 years ago.
Well I contacted the trustee and he said I could file for the child support that was not listed, since the court order was not signed until after the case was filed but included back support. So I don't know who is right? Maybe, I should just be safe and go add the county as a creditor. don't know how hard that is.
Expert:  Maverick replied 5 years ago.
Do you think that the trustee thought that you were the child support receipient as opposed to the county. I am understanding correctly that the child support is supposed to go to the county and not to you. Also, are you a debtor in the BK?
Expert:  Maverick replied 5 years ago.

Okay here is the law on this....

 

 

In most instances, a proof of claim will be filed by a creditor or the creditor's authorized agent, which may include the creditor's counsel or its authorized representative(s). In addition, parties authorized to file a proof of claim on behalf of a creditor include the debtor, a trustee, a guarantor, a surety, an endorser, or other co-debtor. Generally, a claim filed by the creditor will supersede any claim filed by any of these additional parties. A proof of claim is required to conform substantially with the approved official form. The basic information contained in the official form includes

  • identification of the debtor and its bankruptcy case number,
  • identification of the creditor and the mailing address for receipt of notices, whether or not the claim is filed as an original claim or an amended claim,
  • the amount of the claim,
  • the basis for the claim, and
  • the type of claim.

Furthermore, the proof of claim should include as an attachment any supporting documentation, particularly in situations involving secured claims. In an effort to sustain the veracity of claims, a proof of claim must be filed with the original signature of the creditor, and is subject to criminal fines or imprisonment for the presentation of false claims.

 

 

So if you want go ahead an file a proof of claim on behalf of the county and send a copy of that filing to the county so they can file one if they need to. Since the law allows you to file a proof of claim for the county, you probably will not need to amend to add the county to your creditor list. However, you may want to ask the court clerk for the local rule on this issue.

 

Please click ACCEPT so I can get credit for my work. We can continue our conversation after this at no additional charge. Thank you for the opportunity to assist you.

Maverick, Attorney
Category: Bankruptcy Law
Satisfied Customers: 3431
Experience: Bankruptcy Law With An Accounting Degree - 13 + years as civil lawyer
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