Consumer Bankruptcy Journal Winter 2018 - Page 21

Disclosure of Post-Petition Claims property, the debtor shall within 14 days after the information comes to the debtor’s knowledge or within such further time the court may allow, file a supplemental schedule in the chapter 7 liquidation case, chapter 11 reorganization case, chapter 12 family farmer’s debt adjustment case, or chapter 13 individual debt adjustment case. If any of the property required to be reported under this subdivision is claimed by the debtor as exempt, the debtor shall claim the exemptions in the supplemental schedule. The duty to file a supplemental schedule in accordance with this subdivision continues notwithstanding the closing of the case, except that the schedule need not be filed in a chapter 11, chapter 12, or chapter 13 case with respect to property acquired after entry of the order confirming a chapter 11 plan or discharging the debtor in a chapter 12 or chapter 13 case. the Code) . . . . But the bankruptcy court has the discretion, under Rule 1009, to require a debtor to amend his schedule of assets to disclose a new property interest acquired after the confirmation of the debtor’s plan. In re Waldron, 536 F.3d 1239, 1246 (11th Cir. 2008). See also In re Bratcher, No. 08-36225, 2013 Bankr. LEXIS 3904, at *4 (Bankr. S.D. Tex. Sep. 19, 2013). Furthermore, it is impractical to require a chapter 13 debtor to amend schedules constantly when the post- schedules to disclose new assets is ongoing until the discharge or dismissal of the chapter 13 case. Rainey v. UPS, 466 F. App’x 542, 544 (7th Cir. 2012) (“Debtors have a continuing duty to schedule newly acquired assets while the bankruptcy case is open.”); Barbosa v. Soloman, 235 F.3d 31, 36-37 (1st Cir. 2000); Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir. 2002) (explaining that a debtor’s duty to disclose financial affairs in bankruptcy filings “is a continuing one that does not end once the forms are submitted to the bankruptcy court; rather, a debtor must amend his financial statements if circumstances change”). Again, check your jurisdiction. “Courts have correctly held that a chapter 13 debto r’s interest in claims arising post-petition are part of the bankruptcy estate... If any of the property required to be reported under this subdivision is claimed by the debtor as exempt, the debtor shall claim the exemptions in the supplemental schedule.” A strict reading of this rule indicates that only new interests set out in § 541(a)(5) need to be disclosed (inheritance, property settlement agreement/divorce, or life insurance). The Eleventh Circuit has stated We do not hold that a debtor has a free standing duty to disclose the acquisition of any property interest after the confirmation of his plan under Chapter 13. Neither the Bankruptcy Code nor the Bankruptcy Rules mention such a duty, cf. Fed. R. Bankr.P. 1007(h) (requiring a debtor to supplement his schedule regarding interests acquired after petition under section 541(a)(5) of petition estate obtains new assets. “[O]bviously, such a requirement would be unworkable, since the debtor’s schedules would have to be amended to reflect each paycheck or acquisition of property, as well as every expenditure.” 8 Collier on Bankruptcy ¶ 1306.01 at 1306-3 (16th ed.). However, most courts still find, with little analysis or reference to the Bankruptcy Code or Rules, that the duty to amend National Association of Consumer Bankruptcy Attorneys Winter 2018 Standing A debtor’s standing to pursue his claim stems from 11 U.S.C. § 1303 and Bankruptcy Rule 6009. There is no explicit provision that requires the post-petition claim be disclosed in an amended schedule before the debtor has standing. Bankruptcy Rule 6009 states that “With or without court approval, the trustee or debtor in possession may prosecute or may enter an appearance and defend any pending action or proceeding by or against the debtor, or commence and prosecute any action or proceeding in behalf of the estate before any tribunal.” Standing should be determined by only two factors. First is the claim property of the estate and second under what chapter of the Bankruptcy Code is CONSUMER BANKRUPTCY JOURNAL 21