Local Bankruptcy Rules and Forms for New Hampshire

You can find the local rules and forms used by the Bankruptcy Court for the District of New Hampshire, on line, at no cost.

Rules, Orders & Forms, click below:

Local Bankruptcy Rules, Interim Bankruptcy Rules, Administrative Orders, and Local Bankruptcy Forms (as amended February 1, 2013)

If I filed bankruptcy before, can I file again?

If I filed bankruptcy before, can I file again?
The answer is yes.

The more important question is, how soon do you have to wait in between bankruptcy cases?

Chapter 7 to another Chapter 7 (8 years):
If you filed a Chapter 7 case and received a discharge of debt , then you must wait 8 years in between filing another Chapter 7 case.  See 11 U.S.C §727(a)(8).

Chapter 13 then Chapter 7 (6 years):
You must wait six years.  See 11 U.S.C.§727(a)(9).  However, if you paid 100% of your debts in the prior Chapter 13 case or paid at least 70% of your debts in the prior Chapter 13 case and the Bankruptcy Court found that this was your best effort then the 6-year rule does not apply.  See 11 U.S.C.§Section 727(a)(9),  provided you otherwise qualify.

Chapter 7 then Chapter 13 (4 years):
If you previously filed a Chapter 7 case and received a discharge of debt, then you would wait four years in between the prior Chapter 7 case and the new Chapter 13 case.   See 11 U.S.C.§1328(f)(1).  But, if after filing a Chapter 7 case you file a Chapter 13 case and you do not need a discharge of debt in the new Chapter 13 case, then you do not wait.

Chapter 13 to another Chapter 13 (2 years):
If you received a discharge of debt, meaning you completed your repayment plan in a prior Chapter 13 case, then you must wait two years before filing another Chapter 13 case or you will not receive a new discharge of debt in the new Chapter 13 case.  See 11 U.S.C.§  1328(f)(2).  But, if you are not looking for a discharge of debt in the new Chapter 13 case, then you can file another one without waiting.

NO time (0 years):
If you are going to pay your creditors back 100% and do not need a discharge of debt, then you do not need to wait to file a Chapter 13 case. Why would you file a bankruptcy case and not care about discharging debt?  A common answer is that you have fallen behind on your mortgage payments, or other types of payments, and you want to catch up and a Chapter 13 repayment plan would allow you to do that.  For example, if you fall behind in your mortgage payments for several months, it is nearly impossible to catch up quickly and you do not want to lose your house, and a Chapter 13 payment plan would allow you to spread those arrearages over a repayment plan of 3-5 years.

"Good Faith Rule": 
All cases must be filed in good faith to receive protection under the Bankruptcy Code, regardless as to timing.

Divorce Obligations may not be discharged through bankruptcy.

In a recent opinion issued by the New Hampshire Bankruptcy Court, (Honorable James B. Haines, Jr.  sitting in designation), the Court reiterated the parameters of what is, or is not, discharged through a chapter 7 bankruptcy case relevant to a divorce proceeding.  See Maville v. Maville (In re Maville), 2012 BNH 007 (Bankr. D.H. 2012)( Haines, J, sitting in designation).

Debts in the nature of alimony and child support are not discharged through a bankruptcy case.  Section 523(a)(5) of the Bankruptcy Code establishes that individual debtors will not be relieved of domestic support obligations; and, Section 101(14A) defines these to include debts in the nature of alimony, maintenance and support.  Prior to 2005, some obligations were discharged.  That changed with the amendments to the Bankruptcy Code in 2005.  Section 523(a)(15) now unqualifiedly provides that a property settlement obligation encompassed by that section is not discharged.  Maville, supra.

Click here for the full opinion from the Court's web site:

Click here: http://www.nhb.uscourts.gov/Opinions/Judge_Deasy/2012BNH007-Maville.pdf

Get a copy of your Tax Returns

If you cannot locate your tax return, the IRS can provide you with a "tax transcript" at no charge.

Click below for more information:

Click here: Tax Topics - Topic 156 Copy of Your Tax Return – How to Get One

If you want  a copy of the full tax return, you can order that as well but there will be a minimal charge.

Foreclosure: First Circuit would not force mortgagee to foreclose.

Canning v. Beneficial Maine, Inc. (In re Canning), ___ F.3d ___(1st Cir. Feb. 1, 2013).

The refusal by the Chapter 7 debtors’ mortgage creditor to accede to the debtors’ demand that the creditor either foreclose the mortgage on their residence, which the debtors had surrendered and vacated, or release its lien on the property did not violate the discharge injunction. Distinguishing In re Pratt, 462 F.3d 14 (1st Cir. 2006), in which the court held that a secured creditor's refusal to foreclose or release its lien on an inoperable, worthless car was intended to objectively coerce the debtor into paying a discharged debt, the court observed that the creditor offered to release its lien through either a settlement offer or a short sale, which indicated the intent to collect no more than the value secured by the underlying lien, as well as a willingness to negotiate a palatable solution for all involved.

Click here for the full opinion from the court's web site:  Click here: USCA1 Opinion

Mortgagee must possess power of sale at the time of foreclosure.

Alleged mortgagee needed to possess the "power of sale" at the time they foreclosed; thus mortgagor's questioning that the assignment did not take place prior to the foreclosure was proper; one who exercises power of sale must strictly follow its terms:

Juarez v. Select Portfolio Servicing, No. 11-2431 (1st Cir. 2/12/13):

Judgment dismissing complaint alleging defendants illegally foreclosed on her home is reversed and remanded, where the complaint states plausible claims for relief and that the district court abused its discretion in deciding that it would be futile to allow an amendment to the complaint. Juarez properly alluded to a challenge that the assignment did not take place prior to the foreclosure thus, the foreclosing entity did not have the "power of sale" at the time they exercised it - which is a different challenge than a mortgagor's challenge to the validity of a third-party assignment.  The issue of whether a "confirmatory assignment" cured the alleged defect was properly the subject of discovery and the complaint should have proceeded on that point.  One who exercises the power of sale must strictly follow its terms. In this Massachusetts case, an assignment of the mortgage must take place before the foreclosure begins. Further, in light of this, the plaintiff should be allowed to amend and re-plead her fraud and Section 93A claims (Mass. Consumer Protection Statute).  Massachusetts covenant of good faith and fair dealing is taken to be implied in every contract, and provides "that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" - the covenant only "governs conduct of parties after they have entered into a contract.

Juarez:  Click here: USCA1 Opinion

Homeowner has standing to challenge mortgage assignments.

In a case of first impression, mortgagor has standing to challenge assignment of mortgage if to do so renders the assignment void, rather than voidable:

Culhane v. Aurora Loan Services of Nebraska, No. 12-1285 (1st Cir. 2/15/13).

In a case of first impression, the court held that the mortgagor possesses standing to challenge the assignment of its mortgage to another entity.  "Withal, a mortgagor does not have standing to challenge shortcomings in an assignment that render it merely voidable at the election of one party but otherwise effective to pass legal title." - thus, making the distinction that the challenge must be that the assignment is "void", rather than "voidable". Thus, here, the mortgagor (namely the borrower or home owner at issue) has standing to contest the validity of the mortgage assignment made by Mortgage Electronic Registration Systems, Inc. (MERS), to defendant, the foreclosing entity; however, the MERS framework and defendant's foreclosure of plaintiff's property complied with the requirements of Massachusetts mortgage law, and thus the foreclosure was lawful. Applying Massachusetts law, the court noted that in Massachusetts, the note and mortgage may be held by separate entities. Further, the terms of the mortgage (contract) authorized the transfer at issue. 

"[I]n Massachusetts, a mortgagor has a legally cognizable right to challenge a foreclosing entity's status qua mortgagee. This may, in certain instances, require challenging the validity of an assignment that purports to transfer the mortgage to a successor mortgagee.  Standing doctrine is meant to be a shield to protect the court from any role in the adjudication of disputes that do not measure up to a minimum set of adversarial requirements.  There is no principled basis for employing standing doctrine as a sword to deprive mortgagors of legal protection conferred up them under state law.  We hold, therefore, that a mortgagor has standing to challenge the assignment of a mortgage on her home to the extent tat such a challenge is necessary to context a foreclosing entity's status qua mortgagee.  We caution that our hold, narrow to begin with, is further circumscribed.  We hold only that a mortgagor has standing to challenge a mortgage assignment as invalid, ineffective, or void (if, say, the assignor had nothing to assign or had not authority to make an assignment to a particular assignee).  If successful, a challenge of this sort would be sufficient to refute an assignee's status qua mortgagee . . . Withal, a mortgagor doe not have standing to challenge shortcomings in an assignment that render it merely voidable at the election of one party but otherwise effective to pass legal title."

Click here: USCA1 Opinion