December 12, 2017

Role of the [Connecticut] Courts

Maintaining Order – The judicial system in Connecticut exists to uphold the laws of the state. Our courts help to maintain order in our society by:

  • determining the guilt or innocence of persons accused of breaking the law;
  • resolving disputes involving civil or personal rights;
  • interpreting constitutional provisions of laws enacted by the legislature and deciding what is to be the law of the state when none exists for certain situations. The court decision then becomes a precedent to be applied in like situations unless later overruled or modified by the Supreme Court or the General Assembly; and,
  • determining whether a law violates the Constitution of either the State of Connecticut or the United States.

Separation of Powers – Under our constitution, the courts are one of three branches of government:

  • The Legislative Branch (the Senate and House of Representatives) is responsible for creating new laws.
  • The Executive Branch (the Governor and executive branch agencies) is responsible for enforcing them.
  • The Judicial Branch (the courts) is responsible for interpreting and upholding our laws.

Relationship of Connecticut Courts to Federal Courts
In Connecticut, as throughout the United States, there are two judicial systems. One is the state system, established under the authority of the state constitution; the other is the federal system, established under the United States Constitution. Connecticut courts are courts of general jurisdiction. These courts handle most criminal matters and a variety of civil matters, including contracts, personal injury cases, dissolution of marriage and other legal controversies. In some instances, decisions of state courts may be appealed to the United States Supreme Court if a question of federal constitutional law arises.

Federal courts have jurisdiction over matters involving federal law, and over the following matters: cases brought by the United States, cases between two states or the citizens of two different states, cases between a state and a foreign state or its citizens, admiralty and maritime cases, and cases affecting ambassadors and other diplomatic personnel.

(Reposted from the Connecticut Judicial Branch Website)

Organization of the Courts [In Connecticut]: Superior Court

The Superior Court hears all legal controversies except those over which the Probate Court has exclusive jurisdiction. Probate Court matters may be appealed to the Superior Court.

A superior court courtroom The state is divided into 13 judicial districts, 20 geographical areas and 12 juvenile districts. In general, major criminal cases, civil matters and family cases not involving juveniles are heard at judicial district court locations. Other civil and criminal matters are heard at geographical area locations. Cases involving juveniles are heard at juvenile court locations.

The Superior Court has four principal trial divisions: civil, criminal, family and housing.

Civil Division – A civil case is usually a matter in which one party sues another to protect civil, personal or property rights. Examples of typical civil cases include landlord-tenant disputes, automobile or personal accidents, product or professional liability suits and contract disputes. In most civil cases, the accusing party (plaintiff) seeks to recover money damages from another party (defendant). Cases may be decided by the judge or by a jury, depending on the nature of the claim and the preference of the parties.

Criminal Division – A criminal case is one in which a person (defendant) is accused of breaking the law. The two sides in a criminal case are the state, represented by a state’s attorney (because crimes are considered acts that violate the rights of the entire state), and the defendant. Crimes (felonies and misdemeanors), violations and infractions are heard in the Criminal Division.

Housing Division – Cases involving housing are heard in special housing sessions in the Bridgeport, Hartford, New Haven, Stamford-Norwalk and Waterbury judicial districts. In all other judicial districts, these cases are part of the regular civil docket.

Family Division – The Family Division is responsible for the just and timely resolution of family relations matters and juvenile matters. Examples of family relations matters include: dissolution of marriage, child custody, relief from abuse and family support payments. Juvenile matters include: delinquency, child abuse and neglect, and termination of parental rights.

(Reposted from the Connecticut Judicial Branch Website)

Organization of the Courts [In Connecticut]: Supreme Court

The Supreme Court is the state’s highest court. It consists of the Chief Justice and six associate justices. In addition, justices who are eligible and who have not yet attained the age of 70 may elect to take senior status and remain as members of the court.

Supreme Court Courtroom

A panel of five justices hears and decides each case. On occasion, the Chief Justice summons the court to sit en banc as a full court of seven, instead of a panel of five, to hear particularly important cases.

The Supreme Court reviews decisions made in the Superior Court to determine if any errors of law have been committed. It also reviews selected decisions of the Appellate Court.

Generally, the Supreme Court does not hear witnesses or receive evidence. It decides each case on:

  • the record of lower court proceedings;
  • briefs, which are used by counsel to convey to the court the essential points of each party’s case; and,
  • oral argument based on the content of the briefs.

State law specifies which types of appeals may be brought directly to the Supreme Court from the Superior Court, thereby bypassing the Appellate Court. These cases include: decisions where the Superior Court has found a provision of the state constitution or a state statute invalid and convictions of capital felonies. All other appeals are brought to the Appellate Court.

The Supreme Court may transfer to itself any matter filed in the Appellate Court, and may agree to review decisions of the Appellate Court through a process called certification. Except for any matter brought under its original jurisdiction, as defined by the State Constitution, the Supreme Court may transfer any matter pending before it to the Appellate Court.

(Reposted from the Connecticut Judicial Branch Website)

New Bankruptcy Form, Rules Take Effect

Individuals filing for bankruptcy under Chapter 13 must use a new form that presents their payment plan in a more uniform and transparent manner, and creditors will have less time to submit a proof of claim, under new bankruptcy rules and form amendments that took effect Dec. 1.

By creating greater uniformity of where specific types of information must be entered, the new national Chapter 13 plan form will make it easier for creditors, lawyers and judges to ensure that all elements of a bankruptcy agreement reached under Chapter 13 comply with federal laws. Chapter 13, sometimes known as the wage earner’s plan, enables qualified individual filers to reschedule and make debt payments, allowing them to keep their homes and other property.

Bankruptcy courts previously had relied on local versions of Chapter 13 plans, which varied from district to district, in resolving Chapter 13 cases. They now must either use a new national Bankruptcy Form 113, or create a locally adapted form that contains key elements of the national form. In recent months, courts have been updating electronic filing systems and notifying local bankruptcy lawyers and filers of the pending changes.

The deadline for creditors to file a proof of claim was revised in an amendment to Federal Rules of Bankruptcy Procedure 3002.

The new deadline will affect bankruptcies filed under Chapter 7, in which debtors liquidate assets; Chapter 12, which enables family farmers and fishermen to restructure their finances; and Chapter 13. Previously creditors had 90 days after an initial meeting of creditors was held. Now, a proof of claim must be submitted within 70 days of the filing of a bankruptcy petition.

Federal rules amendments typically follow a three-year process, which includes multiple layers of review and extensive public comment.

In April, the Supreme Court transmitted the new rules regarding bankruptcy, as well as amendments to Appellate and Civil Rules of Procedure, and Rules of Evidence, to Congress. The new rules took effect Dec. 1 when Congress did not act to prevent their implementation.

Find a full list of the new rules and form amendments and the Current Rules of Practice and Procedure. Find additional information about the bankruptcy process.

(Re-posted from http://www.uscourts.gov/news/2017/12/01/new-bankruptcy-form-rules-take-effect)

Role of the Courts [in Connecticut]

Maintaining Order – The judicial system in Connecticut exists to uphold the laws of the state. Our courts help to maintain order in our society by:

  • determining the guilt or innocence of persons accused of breaking the law;
  • resolving disputes involving civil or personal rights;
  • interpreting constitutional provisions of laws enacted by the legislature and deciding what is to be the law of the state when none exists for certain situations. The court decision then becomes a precedent to be applied in like situations unless later overruled or modified by the Supreme Court or the General Assembly; and,
  • determining whether a law violates the Constitution of either the State of Connecticut or the United States.

Separation of Powers – Under our constitution, the courts are one of three branches of government:

  • The Legislative Branch (the Senate and House of Representatives) is responsible for creating new laws.
  • The Executive Branch (the Governor and executive branch agencies) is responsible for enforcing them.
  • The Judicial Branch (the courts) is responsible for interpreting and upholding our laws.

Relationship of Connecticut Courts to Federal Courts
In Connecticut, as throughout the United States, there are two judicial systems. One is the state system, established under the authority of the state constitution; the other is the federal system, established under the United States Constitution. Connecticut courts are courts of general jurisdiction. These courts handle most criminal matters and a variety of civil matters, including contracts, personal injury cases, dissolution of marriage and other legal controversies. In some instances, decisions of state courts may be appealed to the United States Supreme Court if a question of federal constitutional law arises.

Federal courts have jurisdiction over matters involving federal law, and over the following matters: cases brought by the United States, cases between two states or the citizens of two different states, cases between a state and a foreign state or its citizens, admiralty and maritime cases, and cases affecting ambassadors and other diplomatic personnel.

(Reposted from the Connecticut Judicial Branch Website)

Process – Bankruptcy Basics

Article I, Section 8, of the United States Constitution authorizes Congress to enact “uniform Laws on the subject of Bankruptcies.” Under this grant of authority, Congress enacted the “Bankruptcy Code” in 1978. The Bankruptcy Code, which is codified as title 11 of the United States Code, has been amended several times since its enactment. It is the uniform federal law that governs all bankruptcy cases.

The procedural aspects of the bankruptcy process are governed by the Federal Rules of Bankruptcy Procedure (often called the “Bankruptcy Rules”) and local rules of each bankruptcy court. The Bankruptcy Rules contain a set of official forms for use in bankruptcy cases. The Bankruptcy Code and Bankruptcy Rules (and local rules) set forth the formal legal procedures for dealing with the debt problems of individuals and businesses.

There is a bankruptcy court for each judicial district in the country. Each state has one or more districts. There are 90 bankruptcy districts across the country. The bankruptcy courts generally have their own clerk’s offices.

The court official with decision-making power over federal bankruptcy cases is the United States bankruptcy judge, a judicial officer of the United States district court. The bankruptcy judge may decide any matter connected with a bankruptcy case, such as eligibility to file or whether a debtor should receive a discharge of debts. Much of the bankruptcy process is administrative, however, and is conducted away from the courthouse. In cases under chapters 7, 12, or 13, and sometimes in chapter 11 cases, this administrative process is carried out by a trustee who is appointed to oversee the case.

A debtor’s involvement with the bankruptcy judge is usually very limited. A typical chapter 7 debtor will not appear in court and will not see the bankruptcy judge unless an objection is raised in the case. A chapter 13 debtor may only have to appear before the bankruptcy judge at a plan confirmation hearing. Usually, the only formal proceeding at which a debtor must appear is the meeting of creditors, which is usually held at the offices of the U.S. trustee. This meeting is informally called a “341 meeting” because section 341 of the Bankruptcy Code requires that the debtor attend this meeting so that creditors can question the debtor about debts and property.

A fundamental goal of the federal bankruptcy laws enacted by Congress is to give debtors a financial “fresh start” from burdensome debts. The Supreme Court made this point about the purpose of the bankruptcy law in a 1934 decision:

[I]t gives to the honest but unfortunate debtor…a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.

Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934). This goal is accomplished through the bankruptcy discharge, which releases debtors from personal liability from specific debts and prohibits creditors from ever taking any action against the debtor to collect those debts. This publication describes the bankruptcy discharge in a question and answer format, discussing the timing of the discharge, the scope of the discharge (what debts are discharged and what debts are not discharged), objections to discharge, and revocation of the discharge. It also describes what a debtor can do if a creditor attempts to collect a discharged debt after the bankruptcy case is concluded.

Six basic types of bankruptcy cases are provided for under the Bankruptcy Code, each of which is discussed in this publication. The cases are traditionally given the names of the chapters that describe them.

Chapter 7, entitled Liquidation, contemplates an orderly, court-supervised procedure by which a trustee takes over the assets of the debtor’s estate, reduces them to cash, and makes distributions to creditors, subject to the debtor’s right to retain certain exempt property and the rights of secured creditors. Because there is usually little or no nonexempt property in most chapter 7 cases, there may not be an actual liquidation of the debtor’s assets. These cases are called “no-asset cases.” A creditor holding an unsecured claim will get a distribution from the bankruptcy estate only if the case is an asset case and the creditor files a proof of claim with the bankruptcy court. In most chapter 7 cases, if the debtor is an individual, he or she receives a discharge that releases him or her from personal liability for certain dischargeable debts. The debtor normally receives a discharge just a few months after the petition is filed. Amendments to the Bankruptcy Code enacted in to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 require the application of a “means test” to determine whether individual consumer debtors qualify for relief under chapter 7. If such a debtor’s income is in excess of certain thresholds, the debtor may not be eligible for chapter 7 relief.

Chapter 9, entitled Adjustment of Debts of a Municipality, provides essentially for reorganization, much like a reorganization under chapter 11. Only a “municipality” may file under chapter 9, which includes cities and towns, as well as villages, counties, taxing districts, municipal utilities, and school districts.

Chapter 11, entitled Reorganization, ordinarily is used by commercial enterprises that desire to continue operating a business and repay creditors concurrently through a court-approved plan of reorganization. The chapter 11 debtor usually has the exclusive right to file a plan of reorganization for the first 120 days after it files the case and must provide creditors with a disclosure statement containing information adequate to enable creditors to evaluate the plan. The court ultimately approves (confirms) or disapproves the plan of reorganization. Under the confirmed plan, the debtor can reduce its debts by repaying a portion of its obligations and discharging others. The debtor can also terminate burdensome contracts and leases, recover assets, and rescale its operations in order to return to profitability. Under chapter 11, the debtor normally goes through a period of consolidation and emerges with a reduced debt load and a reorganized business.

Chapter 12, entitled Adjustment of Debts of a Family Farmer or Fisherman with Regular Annual Income, provides debt relief to family farmers and fishermen with regular income. The process under chapter 12 is very similar to that of chapter 13, under which the debtor proposes a plan to repay debts over a period of time – no more than three years unless the court approves a longer period, not exceeding five years. There is also a trustee in every chapter 12 case whose duties are very similar to those of a chapter 13 trustee. The chapter 12 trustee’s disbursement of payments to creditors under a confirmed plan parallels the procedure under chapter 13. Chapter 12 allows a family farmer or fisherman to continue to operate the business while the plan is being carried out.

Chapter 13, entitled Adjustment of Debts of an Individual With Regular Income, is designed for an individual debtor who has a regular source of income. Chapter 13 is often preferable to chapter 7 because it enables the debtor to keep a valuable asset, such as a house, and because it allows the debtor to propose a “plan” to repay creditors over time – usually three to five years. Chapter 13 is also used by consumer debtors who do not qualify for chapter 7 relief under the means test. At a confirmation hearing, the court either approves or disapproves the debtor’s repayment plan, depending on whether it meets the Bankruptcy Code’s requirements for confirmation. Chapter 13 is very different from chapter 7 since the chapter 13 debtor usually remains in possession of the property of the estate and makes payments to creditors, through the trustee, based on the debtor’s anticipated income over the life of the plan. Unlike chapter 7, the debtor does not receive an immediate discharge of debts. The debtor must complete the payments required under the plan before the discharge is received. The debtor is protected from lawsuits, garnishments, and other creditor actions while the plan is in effect. The discharge is also somewhat broader (i.e., more debts are eliminated) under chapter 13 than the discharge under chapter 7.

The purpose of Chapter 15, entitled Ancillary and Other Cross-Border Cases, is to provide an effective mechanism for dealing with cases of cross-border insolvency. This publication discusses the applicability of Chapter 15 where a debtor or its property is subject to the laws of the United States and one or more foreign countries.

In addition to the basic types of bankruptcy cases, Bankruptcy Basics provides an overview of the Servicemembers’ Civil Relief Act, which, among other things, provides protection to members of the military against the entry of default judgments and gives the court the ability to stay proceedings against military debtors.

This publication also contains a description of liquidation proceedings under the Securities Investor Protection Act (“SIPA”). Although the Bankruptcy Code provides for a stockbroker liquidation proceeding, it is far more likely that a failing brokerage firm will find itself involved in a SIPA proceeding. The purpose of SIPA is to return to investors securities and cash left with failed brokerages. Since being established by Congress in 1970, the Securities Investor Protection Corporation has protected investors who deposit stocks and bonds with brokerage firms by ensuring that every customer’s property is protected, up to $500,000 per customer.

The bankruptcy process is complex and relies on legal concepts like the “automatic stay,” “discharge,” “exemptions,” and “assume.” Therefore, the final chapter of this publication is a glossary of Bankruptcy Terminology which explains, in layman’s terms, most of the legal concepts that apply in cases filed under the Bankruptcy Code.

Reprinted from http://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/process-bankruptcy-basics

CONTEMPLATING A BANKRUPTCY AFTER DIVORCE

Oftentimes Bankruptcy and Divorce go hand-in-hand.  If you are in the process of getting divorced, it would be wise to consult a consumer attorney to analyze your financial circumstances, ensuring all of your obligations will be accounted for in the Divorce Decree/Separation Agreement, and to determine if you can handle paying them once you go back to a single income after the divorce.  Bankruptcy may be a safe option once you are divorced if you find you cannot afford living on a single income.

If you will be taking the bulk of the debt once you separate and do not have the income to support it, you may consider filing for bankruptcy and starting over all together once the divorce is finalized.  Here are some topics that often arise from divorce when contemplating a bankruptcy or may lead you to file for bankruptcy after your divorce:

  1. Who will take the marital home and pay its related expenses?

If you are getting a divorce and taking over possession of the marital home, along with taking over the related expenses, especially the mortgage(s) on the home, be sure to have your Divorce Decree state the terms of this transfer accurately.

Also, making a budget before the divorce is final will help you determine if you will be able to afford to stay in the home.

If it is determined that you can, in fact, afford to live in the home after the divorce, then make sure the proper documents are recorded on the Land Records after the transfer.  This will give you a paper trial you may need to provide in your bankruptcy case later on.

  1. Will you be responsible for credit cards in your ex-spouses name?

If so, make sure the Divorce Decree/Separation Agreement spells out all debt you will be taking responsibility for once the divorce is final, along with the last four digits of any account numbers.  Once the divorce is final, be sure to contact each company in writing and have the accounts switched into your name.  Wait at least six weeks and then review your credit report(s) to ensure accurate reporting, so as not to inadvertently leave off a debt you are responsible for on your Bankruptcy petition, among other things.

  1. Will you be ordered to pay alimony or child support?

Keep in mind, that these particular types of “debts” are allowable deductible expenses in your Bankruptcy case; this means that they are taken into consideration when qualifying for Bankruptcy.  Also, it is important to note that court-ordered Alimony and Child Support are what is known in the Bankruptcy realm as “priority debts” and cannot be discharged in most cases.  (Taxes and loans involving the government are also included in the priority category.)  It is vitally important to have all obligations in this category fully defined and explained in your Divorce Decree/Separation Agreement, as you will likely be fulfilling these obligations regardless of ever filing for Bankruptcy.

Filing for bankruptcy after a divorce is not the end of the world.  In fact, it may be the best thing that ever happened to you, and will help you to move on and start fresh.

Chapter 7 Bankruptcy Series Part Six: The Chapter 7 Bankruptcy Trustee

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In your Chapter 7 Bankruptcy process there will be 3 main characters: you, your attorney and the Chapter 7 Bankruptcy Trustee assigned to your case.  In short, a Chapter 7 Bankruptcy Trustee is the person who oversees your Bankruptcy Case.

There are currently ten Chapter 7 Trustees in the State of Connecticut who are appointed by the United States Trustee.  The Trustee Program is a part of the Department of Justice.

“The United States Trustee Program is a component of the Department of Justice that seeks to promote the efficiency and prote ct the integrity of the Federal bankruptcy system. To further the public interest in the just, speedy and economical resolution of cases filed under the Bankruptcy Code, the Program monitors the conduct of bankruptcy parties and private estate trustees, oversees related administrative functions, and acts to ensure compliance with applicable laws and procedures. It also identifies and helps investigate bankruptcy fraud and abuse in coordination with United States Attorneys, the Federal Bureau of Investigation, and other law enforcement agencies.” –The U.S. Department of Justice

Upon filing of your Chapter 7 Bankruptcy Petition you will be assigned a Chapter 7 Bankruptcy Trustee randomly by the Bankruptcy Court’s computer system.  I will deliver the name and address of your Chapter 7 Trustee to you by phone or email the day you sign and I file your Petition, and a few days later an official Notice from the Bankruptcy Court will be mailed to you with this and other pertinent information about your Bankruptcy case.

The primary duties of the Chapter 7 Trustee are (1) to examine your Bankruptcy Petition and Schedules, (2) conduct a 341 Meeting of the Creditors (a Hearing you must attend and testify at under oath) and (3) determine if you have any non-exempt assets that can be liquidated to pay your creditors.  Additionally, the Trustee has the power to refer cases to higher authorities to be investigated for Bankruptcy Fraud and/or other crimes, if appropriate.  Therefore, it is imperative that you fully disclose all of your income, assets and liabilities to me during your Bankruptcy process so I may properly prepare your Bankruptcy Petition to avoid any improprieties.

After your Chapter 7 Bankruptcy Petition is filed but before you attend your 341 Meeting we will mail to you a Questionnaire provided by your Chapter 7 Bankruptcy Trustee.  The questions are simple and you should be able to answer them all without assistance (but of course, we are always here to guide you).  An example of one inquiry on the questionnaire would be “have you ever filed bankruptcy before?”  If the answer is “yes,” there will be a few follow-up questions like “What was the case number?” and “Did you receive a discharge?”

Your Chapter 7 Trustee will also provide to my office a list of required documents that the Trustee will examine in conjunction with your Bankruptcy Petition.  The list of requested documents will include such things as Tax Returns, Bank Statements and Paystubs.  Usually I will already have everything that is requested, but I may ask you to provide additional documents to satisfy the requests of your Chapter 7 Trustee.

The next part of my Chapter 7 Bankruptcy series will take you through your 341 Meeting of the Creditors so you are fully prepared to attend the Hearing.

Contact Attorney Theresa Rose DeGray at Consumer Legal Services, LLC (203-713-8877) for more information on this and other Bankruptcy related topics.

Q: What is Chapter 13?

A: Chapter 13 of the Bankruptcy Code provides for adjustment of debts of an individual with regular income.  Basically it allows you to re-organize your debts and save your home and cars.

A Chapter 13 Bankruptcy is also called a wage earner’s plan. It enables individuals with regular income to develop a plan to repay all or part of their debts. Under this chapter, debtors propose a repayment plan to make installments to creditors over three to five years. If the debtor’s current monthly income is less than the applicable state median, the plan will be for three years unless the court approves a longer period “for cause.” (1) If the debtor’s current monthly income is greater than the applicable state median, the plan generally must be for five years. In no case may a plan provide for payments over a period longer than five years. 11 U.S.C. §1322(d). During this time the law forbids creditors from starting or continuing collection efforts.

For more information, a Free Consultation and/or Free Means Test, please contact Consumer Legal Services, LLC.

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Financial Calculators

Do you Qualify for Bankruptcy?

  1. Are you frequently late in paying your bills?
  2. Do unexpected expenses cause a serious strain on your finances?
  3. Do you constantly worry about paying your bills on time?
  4. Are you behind on any of your debts?
  5. Has your income decreased in the past six months?
  6. Have your wages been garnished in the last year?
  7. Do you find yourself repeatedly borrowing money to pay off your bills?
  8. Do you owe any back taxes?
  9. Are you unable to make the minimum payment on your credit card bills?
  10. Have you ever been contacted by a collection agency for unpaid debts?
  11. Have you recently been contacted at your home or place of business about unpaid bills?
  12. Has your car been repossessed in the last six months?
  13. Do you currently have any outstanding bounced checks?
  14. Do you regularly charge small items on your credit cards?

If you answered “yes” to any of these questions, you may want to contact us to discuss your options via our free consultation. We can explain the bankruptcy laws and help determine whether Chapter 7 or Chapter 13 bankruptcy is the right course for you. In some cases, we even recommend non-bankruptcy alternatives.

Contact us here for a Free Consultation.

This firm is a debt relief agency. We help people file for bankruptcy relief amongst other things, under the Bankruptcy Code.