Free Committee Notes - All

Form 1

1991 COMMITTEE NOTE Form 1, the Voluntary Petition, is to be used to commence a voluntary case under chapter 7, 11, 12, or 13 of the Bankruptcy Code. A chapter 9 petition requires other allegations, (see § 109(c) of the Code), but this form may be adapted for such use. The form also may be adapted for use in filing a petition ancillary to a foreign proceeding under § 304 of the Code. The form departs from the traditional format of a captioned pleading. All of the elements of the caption prescribed in Rule 1005 have been retained. Their placement on the page, however, has been changed to make the form compatible with electronic data processing by the clerk. The form of the caption of the case for use in other documents, formerly incorporated in Official Form No. l, has been made a separate Form 16A. All names used by the debtor, including trade names, names used in doing business, married names, and maiden names should be furnished in the spaces provided. If there is not sufficient room for all such names on the form itself, the list should be continued on an additional sheet attached to the petition. A complete list will enable creditors to identify the debtor properly when they receive notices and orders. Redesign of this form into a box format also is intended to provide the court, the United States trustee, and other interested parties with as much information as possible during the 15day period provided by Rule 1007(c), when schedules and statements may not have been filed. The box format separates into categories the data provided by the debtor, and enables the form to be used by all voluntary debtors in all chapters. For the first time, the form requires both a street address and any separate mailing address, as well as any separate addresses used by a joint debtor. Disclosure of prior bankruptcies is new to the petition but formerly was required in the statement of financial affairs; its inclusion in the petition is intended to alert the trustee to cases in which an objection to discharge pursuant to § 727(a)(8) or (a)(9) or a motion to dismiss under § 109(g) may be appropriate. The information about pending related cases, also new to the petition, signals the clerk to assign the case to the judge to whom any related case has been assigned. Rule 1008 requires all petitions to be verified or contain an unsworn declaration as provided in 28 U.S.C. § 1746. The unsworn declaration on page two of the petition conforms with 28 U.S.C. § 1746, which permits the declaration to be made in the manner indicated with the same force and effect as a sworn statement. The form may be adapted for use outside the United States by adding the words "under the laws of the United States" after the word "perjury." Exhibit "A," to be attached to the petition of a corporate debtor, is for the purpose of supplying the Securities and Exchange Commission with information it needs at the beginning

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stages of a chapter 11 case in order to determine how actively to monitor the proceedings. Exhibit "B" was added by § 322 of Pub. L. No. 98-353, the Bankruptcy Amendments and Federal Judgeship Act of 1984. The references to chapters 11 and 12 of the Code found in Exhibit "B" and its related allegations were added by § 283(aa) of the 1986 amendments, (Pub. L. No. 99-554). This exhibit has been included in the form of the petition. The form effects a merger of the petition and the bankruptcy cover sheet to assist the clerk in providing the statistical information required by the Director of the Administrative Office of the United States Courts pursuant to the Congressional reporting mandates of 28 U.S.C. § 604. The Director is authorized to change the particulars of the statistical portion of the form as needed in the performance of these statutory duties.

1992 COMMITTEE NOTE The form has been amended to require a debtor not represented by an attorney to provide a telephone number so that court personnel, the trustee, other parties in the case, and their attorneys can contact the debtor concerning matters in the case.

1995 COMMITTEE NOTE The form is amended to provide space for signing by a "bankruptcy petition preparer," as required under section 110 of the Code, which was added by the Bankruptcy Reform Act of 1994. In addition to signing, a bankruptcy petition preparer is required by section 110 to disclose the information requested. All signatories of Form 1 are requested to provide the clerk's office with a telephone number. A chapter 11 debtor that qualifies as a "small business" under section 101 of the Code, as amended by the 1994 Act, may elect special, expedited treatment under amendments made to chapter 11 by the 1994 Act. The court may order that a creditors committee not be appointed in a small business case. Accordingly, the first page of the petition is amended to require a small business filing under chapter 11 to identify itself. The petition also is amended to offer a small business chapter 11 debtor an opportunity to exercise its right to elect to be considered a small business at the commencement of the case. Several clarifying and technical amendments also have been made to indicate that a debtor is to check only one box with respect to "Type of Debtor" and "Nature of Debt," to clarify the intent that the individual signing on behalf of a corporation or partnership is authorized to file the petition, and to require a debtor to represent that it is eligible for relief under the chapter of title 11 specified in the petition.

1997 COMMITTEE NOTE

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The form has been substantially amended to simplify its format and make the form easier to complete correctly. The Latin phrase "In re" has been deleted as unnecessary. The amount of information requested in the boxes labeled "Type of Debtor" and "Nature of Debt" has been reduced, and the reporting by a corporation of whether it is a publicly held entity has been moved to Exhibit "A" of the petition. The box labeled "Representation by Attorney" has been deleted; the information it contained is requested in the signature boxes on the second page of the form. In the statistical information section, the labels on the ranges of estimated assets and liabilities have been rewritten to improve the accuracy of reporting. The asset/liability range of $10 million to $100 million has been divided into two categories to promote better statistical reporting of business cases. Requests for information in chapter 11 and chapter 12 cases concerning the number of the debtor's employees and equity security holders have been deleted. The second page of the form has been simplified so that a debtor need only sign the petition once. The request for information concerning the filing of a plan has been deleted. Exhibit "A" has been simplified. In addition, the category of chapter 11 debtors required to file Exhibit "A" is modified to include a corporation, partnership, or other entity, but only if the debtor has issued publicly-traded equity securities or debt instruments. Most small corporations will not be required to file Exhibit "A."

2001 COMMITTEE NOTE The form has been amended to require the debtor to disclose whether the debtor owns or has possession of any property that poses or is alleged to pose a threat of imminent and identifiable harm to public health or safety. If any such property exists, the debtor must complete and attach Exhibit "C" describing the property, its location, and the potential danger it poses. Exhibit "C" will alert the United States trustee and any person selected as trustee that immediate precautionary action may be necessary.

2002 COMMITTEE NOTE The form has been amended to provide a checkbox for designating a clearing bank case filed under subchapter V of chapter 7 of the Code enacted by § 112 of Pub. L. No. 106-554 (December 21, 2000).

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The form is amended to require the debtor to disclose only the last four digits of the debtor's social security number to afford greater privacy to the individual debtor, whose bankruptcy case records may be available on the Internet. Pursuant to § 110(c) of the Bankruptcy Code, the certification by a non-attorney bankruptcy petition preparer requires a petition preparer to provide the full social security number of the individual who actually prepares the document.

2005 COMMITTEE NOTE The form is amended to implement amendments to the Bankruptcy Code contained in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109 - 8, 119 Stat. 23 (April 20, 2005). The period for which the debtor must provide all names used and information about any prior bankruptcy cases is now eight years to match the required time between the granting of discharges to the same debtor in § 727(a)(8) of the Code as amended in 2005. The box indicating the debtor's selection of a chapter under which to file the case has been amended to delete "Sec. 304 - Case ancillary to foreign proceeding" and replace it with "Chapter 15 Petition for Recognition of a Foreign Main Proceeding" and "Chapter 15 Petition for Recognition of a Foreign Nonmain Proceeding" reflecting the 2005 repeal of § 304 and enactment of chapter 15 of the Code. A statement of venue to be used in a chapter 15 case also has been added. The section of the form labeled "Type of Debtor" has been revised and subtitled "Form of Organization." This section is revised to make it clear that a limited liability corporation ("LLC") and limited liability partnership ("LLP") should identify itself as a "corporation." A new section titled "Nature of Business" has been created that includes both existing check boxes that identify certain types of debtors for which the Bankruptcy Code provides special treatment, such as stockbrokers and railroads, and a new checkbox for a "health care business" for which the 2005 amendments to the Code include specific requirements. This section of the form also contains checkboxes for single asset real estate debtors and nonprofit organizations which will be used by trustees and creditors and by the Director of the Administrative Office of the United States Courts in preparing statistical reports and analyses. The statistical section of the form also is amended to provide more detail concerning the number of creditors in a case. A check box also has been added for a debtor to indicate that the debtor is applying for a waiver of the filing fee, to implement the 2005 enactment of 28 U.S.C. § 1930(f) authorizing the bankruptcy court to waive the filing fee in certain circumstances. Although the 2005 Act eliminated an eligible debtor's option to elect to be treated as a "small business" in a chapter 11 case, new provisions for such debtors added to the Code in 2005 make it desirable to identify eligible debtors at the outset of the case. Accordingly, the section of the form labeled "Chapter 11 Small Business" has been revised and renamed "Chapter 11 Debtors" for this purpose. Chapter 11 debtors that meet the definition of "small business debtor"

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in § 101 of the Code are directed to identify themselves in this section of the form. In addition, chapter 11 debtors whose aggregate noncontingent debts owed to non-insiders or affiliates are less than $2 million are directed to identify themselves in this section. A space is provided for individuals to certify that they have received budget and credit counseling prior to filing, as required by § 109(h) which was added to the Code in 2005, or to request a waiver of the requirement. Space also is provided for a debtor who is a tenant of residential real property to state whether the debtor's landlord has a judgment against the debtor for possession of the premises, whether under applicable nonbankruptcy law the debtor would be permitted to cure the monetary default, and whether the debtor has made the appropriate deposit with the court. This addition to the form implements § 362(l) which was added to the Code in 2005. The signature sections and the declaration under penalty of perjury by an individual debtor concerning the notice received about bankruptcy relief, the declaration under penalty of perjury by a bankruptcy petition preparer, and the declaration and certification by an attorney all are amended to include new material mandated by the 2005 Act. A signature section also is provided for a representative of a foreign proceeding.

2006 COMMITTEE NOTE Page one of the form is amended in several ways to assist the courts in evaluating their workload and fulfilling the statistical reporting requirements of 28 U.S.C. § 159. Section 159 was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8 and takes effect October 17, 2006. Accordingly, in the section of the form labeled "Nature of Business," the instruction is amended to specify that only one box should be checked and only if the debtor is any of the entities listed. The "nonprofit" choice is separated into a discrete section and the language amended to the more precise "tax-exempt." In addition, the section labeled "Type of Debtor" is amended to include, below the checkbox for "Individual or Joint," a direction to "See Exhibit D on page 2 of this form." Exhibit D replaces the certification concerning prepetition credit counseling and is described below. The section labeled "Nature of Debts" is amended to state the statutory definition of a "consumer debt" and to modify both the consumer and business categories by adding the word "primarily" to both make it clearer to individual debtors that "business" may be the more appropriate choice if personal debts have been incurred to finance a business venture. In the section labeled "Chapter 11 Debtors," the language concerning whether the debtor owes less than $2 million is re-styled for clarity. This section also is augmented to provide the court with notice when a case if filed as a "pre-packaged" chapter 11 reorganization case. Two checkboxes are offered, using language adapted from § 1126(b) of the Code. Lastly, the information requested concerning estimated assets and liabilities is abbreviated, with the number of ranges reduced and the scope of each range amended. Statistical reports now will be derived

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from actual dollar amounts of assets and liabilities as shown on the debtor's schedules. The information on the petition, accordingly, is for case management and public information purposes only. Exhibit D replaces the section formerly labeled "Certification Concerning Debt Counseling by Individual/Joint Debtor(s)." Early cases decided under the 2005 amendments to the Bankruptcy Code indicate that individual debtors may not be aware of the requirement to obtain prepetition credit counseling, the few and very narrow exceptions to that requirement, or the potentially dire consequences to their efforts to obtain bankruptcy relief if they fail to complete the requirement. Accordingly, page 2 of the petition instructs individual debtors to attach a completed Exhibit D and makes it clear that each spouse in a joint case must complete and attach a separate Exhibit D. Exhibit D itself includes a warning about the requirement to obtain counseling and the consequences of failing to fulfill this requirement. It further provides checkboxes and instructions concerning the additional documents that are required in particular circumstances, in order to minimize the number of cases which the court must dismiss for ineligibility. 2005-2007 COMMITTEE NOTE1 The form is amended to implement amendments to the Bankruptcy Code contained in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (April 20, 2005)("BAPCPA"). The period for which the debtor must provide all names used and information about any prior bankruptcy cases is now eight years to match the required time between the granting of discharges to the same debtor in § 727(a)(8) of the Code as amended in 2005. In conformity with Rule 9037, the debtor is directed to provide only the last four digits of any individual's tax-identification number. The box indicating the debtor's selection of a chapter under which to file the case is amended to delete "Sec. 304 - Case ancillary to foreign proceeding" and replace it with "Chapter 15 Petition for Recognition of a Foreign Main Proceeding" and "Chapter 15 Petition for Recognition of a Foreign Nonmain Proceeding" reflecting the 2005 repeal of § 304 and enactment of chapter 15 of the Code. A statement of venue to be used in a chapter 15 case also is added on page 2 of the form. The section labeled "Type of Debtor" is amended to include, below the checkbox for "Individual or Joint," a direction to "See Exhibit D on page 2 of this form." This addition alerts individual debtors that Exhibit D on page 2 of the form applies to them. Exhibit D, more fully described below, addresses the prepetition credit counseling requirements added to the Code by BAPCPA. The subtitle, "Form of Organization," is added, and this section also is revised to

1

The 2005-2007 Committee Note incorporates Committee Notes previously published in 2005 and 2006.

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make clear that a limited liability corporation ("LLC") or limited liability partnership ("LLP") should identify itself as a "corporation." The form also is amended in several ways to assist the courts in evaluating their workload and fulfilling the statistical reporting requirements of 28 U.S.C. § 159, enacted as part of BAPCPA. Accordingly, a new section of the form labeled "Nature of Business," is added that contains both existing checkboxes that identify certain types of debtors for which the Bankruptcy Code provides special treatment, such as stockbrokers and railroads, and a new checkbox for a "health care business" for which the 2005 amendments to the Code include specific requirements. This section of the form also contains a checkbox for single asset real estate debtors, so they can be identified at the time of filing. All other businesses will mark the checkbox labeled "Other." Another new section titled "Tax-Exempt Entity" contains a checkbox to be used by qualified organizations. The Judicial Conference of the United States and the Administrative Office of the United States Courts will use this information in preparing statistical reports and analyses for Congress. A checkbox also is added for an individual debtor to indicate that the debtor is applying for a waiver of the filing fee, to implement the 2005 enactment of 28 U.S.C. § 1930(f) authorizing the bankruptcy court to waive the filing fee in certain circumstances. The description directs the debtor to the Official Form for the application that must be filed for the court's consideration. The section labeled "Nature of Debts" is amended to state the statutory definition of a "consumer debt" and to modify both the consumer and business categories by adding the word "primarily" to both choices to make it clearer to individual debtors that "business" may be the appropriate choice if personal debts have been incurred to finance a business venture. Although the 2005 Act eliminated from the Code any option to elect to be treated as a "small business" in a chapter 11 case, new provisions for "small business" debtors added by BAPCPA make it desirable to identify eligible debtors at the outset of the case. Accordingly, the section of the form labeled "Chapter 11 Small Business" is revised and renamed "Chapter 11 Debtors" for this purpose. Chapter 11 debtors that meet the definition of "small business debtor" in § 101 of the Code are directed to identify themselves in this section of the form. Chapter 11 debtors whose aggregate noncontingent debts owed to non-insiders or affiliates are less than $2,190,000 are directed to identify themselves in this section. A third part of this section attempts to identify chapter 11 cases that are filed as pre-packaged cases, using criteria taken from § 1126(b) of the Code. Identifying "pre-packs" at filing will assist judges and court staff to manage these cases appropriately. The statistical information concerning the number of creditors and estimated assets and liabilities is revised to provide more detail. BAPCPA also added a new § 109(h) to the Code. To implement this provision, a section labeled "Exhibit D" is inserted on page 2 of the form, and a separate Exhibit D is added. These

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additions will enable individual debtors to certify that they have received budget and credit counseling prior to filing, as required by § 109(h), or request a temporary waiver of, or exemption from, the requirement, if they meet the statutory requirements for such relief. Exhibit D includes directions to attach required documentation or, if the debtor requests a temporary waiver or an exemption, a motion for a determination by the court. Exhibit D also states the requirement that all individual debtors must obtain a briefing from an approved credit counseling agency before filing a bankruptcy case, unless one of the very limited exceptions applies, and further states the consequences that may be faced by any debtor who fails to comply. Space is provided on page 2 for a debtor who is a tenant of residential real property to certify whether the debtor's landlord has a judgment against the debtor for possession of the premises, whether under applicable nonbankruptcy law the debtor would be permitted to cure the monetary default, and whether the debtor has made the appropriate deposit with the court. This addition to the form implements § 362(l) which was added to the Code in 2005. And a box is provided that allows the debtor to certify that s/he has served the landlord with the certification as required by § 362(l)(1). The signature sections and the declaration under penalty of perjury by an individual debtor concerning the notice received about bankruptcy relief, the declaration under penalty of perjury by a bankruptcy petition preparer, and the attorney signature box are amended to include new material mandated by the 2005 Act. The attorney signature box is also amended to remind the attorney that in a case in which § 707(b)(4)(D) applies, that the signature constitutes a certification that the attorney has no knowledge after an inquiry that the information in the schedules filed with the petition is incorrect. A signature section is also provided for a representative of a foreign proceeding.