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Complete Home & Office Legal Guide
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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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1993-09-14
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/* The former "Wage earner [plan" can now be used even by small
businessmen. The advantage of this chapter (so long as the debtor
is below the limit for debts of $100,000 unsecured and $350,000
secured, is that there is no creditor vote, just a determination
of "best efforts." */
CHAPTER 13
Adjustment of Debts of an Individual With Regular Income
SUBCHAPTER I
Officers, Administration, and the Estate
SECTION 1301 (11 U.S.C. 1301)
1301. Stay of action against codebtor.
(a) Except as provided in subsections (b) and (c) of this
section, after the order for relief under this chapter, a
creditor may not act, or commence or continue any civil action,
to collect all or any part of a consumer debt of the debtor from
any individual that is liable on such debt with the debtor, or
that secured such debt, unless-
(1) such individual became liable on or secured such debt
in the ordinary course of such individual's business: or
(2) the case is closed, dismissed, or converted to a case
under chapter 7 or 11 of this title.
(b) A creditor may present a negotiable instrument, and may
give notice of dishonor of such an instrument.
(c) On request of a party in interest and after notice and
a hearing, the court shall grant relief from the stay provided by
subsection (a) of this section with respect to a creditor, to the
extent that-
(I) as between the debtor and the individual protected
under subsection (a) of this section, such individual received
the consideration for the claim held by such creditor;
(2) the plan filed by the debtor proposes not to pay such
claim; or
(3) such creditor's interest would be irreparably harmed by
continuation of such stay.
(d) Twenty days after the filing of a request under
subsection (c)(2) of this section for relief from the stay
provided by subsection (a) of this section, such stay is
terminated with respect to the party in interest making such
request, unless the debtor or any individual that is liable on
such debt with the debtor files and serves upon such party in
interest a written objection to the taking of the proposed
action.
SECTION 1302 (11 U.S.C. 1302)
1302. Trustee.
(a) If the United States trustee appoints an individual
under section 586(b) of title 28 to serve as standing trustee in
cases under this chapter and if such individual qualifies under
section 322 of this title, then such individual shall serve as
trustee in the case. Otherwise, the United States trustee shall
appoint one disinterested person to serve as trustee in the case
or the United States trustee may serve as a trustee in the case.
(b) The trustee shall-
(1) perform the duties specified in sections 704(2),704(3),
704(4), 704(5), 704(6), 704(7) and 704(9) of this title;
(2) appear and be heard at any hearing that concerns - -
(A) the value of property subject to a lien;
(B) confirmation of a plan; or
(C) modification of the plan after confirmation;
(3) dispose of, under regulations issued by the Director of
the Administrative Office of the United States Courts, moneys
received or to be received in a case under chapter XIII of the
Bankruptcy Act; and
(4) advise, other than on legal matters, and assist the
debtor in performance under the plan; and
(5) ensure that the debtor commences making timely payments
under section 1326 of this title.
(c) If the debtor is engaged in business, then in addition
to the duties specified in subsection (b) of this section, the
trustee shall perform the duties specified in sections 1106(a)(3)
and 1106(a)(4) of this title.
SECTION 1303 (11 U.S.C. 1303)
1303. Rights and powers of debtor. Subject to any limitations
on a trustee under this chapter, the debtor shall have, exclusive
of the trustee, the rights and powers of a trustee under sections
363(b), 363(d), 363(e), 363(f), and 363(1), of this title.
SECTION 1304 (11 U.S.C. 1304)
1304. Debtor engaged in business.
(a) A debtor that is self-employed and incurs trade credit
in the production of income from such employment is engaged in
business.
(b) Unless the court orders otherwise, a debtor engaged in
business may operate the business of the debtor and, subject to
any limitations on a trustee under sections 363(c) and 364 of
this title and to such limitations or conditions as the court
prescribes, shall have, exclusive of the trustee, the rights and
powers of the trustee under such sections.
(c) A debtor engaged in business shall perform the duties
of the trustee specified in section 704(8) of this title.
SECTION 1305 (11 U.S.C. 1305)
1305. Filing and allowance of postpetition claims.
(a) A proof of claim may be filed by any entity that holds
a claim against the debtor-
(1) for taxes that become payable to a governmental unit
while the case is pending; or
(2) that is a consumer debt, that arises after the date of
the order for relief under this chapter, and that is for property
or services necessary for the debtor's performance under the
plan.
(b) Except as provided in subsection (c) of this section, a
claim filed under subsection (a) of this section shall be allowed
or disallowed under section 502 of this title, but shall be
determined as of the date such claim arises, and shall be allowed
under section 502(a), 502(b), or 502(c) of this title, or
disallowed under section 502(d) or 502(e) of this title, the same
as if such claim had arisen before the date of the filing of the
petition.
(c) A claim filed under subsection (a) (2) of this section
shall be disallowed if the holder of such claim knew or should
have known that prior approval by the trustee of the debtor's
incurring the obligation was practicable and was not obtained.
SECTION 1306 (11 U.S.C. 1306)
1306. Property of the estate.
(a) Property of the estate includes, in addition to the
property specified in section 541 of this title-
(1) all property of the kind specified in such section that
the debtor acquires after the commencement of the case but before
the case is closed, dismissed, or converted to a case under
chapter 7, 11, or 12 of this title whichever occurs first; and
(2) earnings from services performed by the debtor after
the commencement of the case but before the case is closed
dismissed, or converted to a case under chapter 7, 11, or 12 of
this title, whichever occurs first.
(b) Except as provided in a confirmed plan or order
confirming a plan, the debtor shall remain in possession of all
property of the estate.
SECTION 1307 (11 U.S.C. 1307)
1307. Conversion or dismissal.
(a) The debtor may convert a case under this chapter to a
case under chapter 7 of this title at any time. Any waiver of the
right to convert under this subsection is unenforceable.
(b) On request of the debtor at any time, if the case has
not been converted under section 706, 1112, or 1208 of this
title, the court shall dismiss a case under this chapter. Any
waiver of the right to dismiss under this subsection is
unenforceable.
(c) Except as provided in subsection (e) of this section,
on request of a party in interest or the United States trustee
and after notice and a hearing, the court may convert a case
under this chapter to a case under chapter 7 of this title, or
may dismiss a case under this chapter, whichever is in the best
interests of creditors and the estate, for cause, including --
(1) unreasonable delay by the debtor that is prejudicial to
creditors;
(2) nonpayment of any fees and charges required under
chapter 123 of title 28;
(3) failure to file a plan timely under section 1321 of
this title;
(4) failure to commence making timely payments under
section 1326 of this title;
(5) denial of confirmation of a plan under section 1325 of
this title and denial of a request made for additional time for