Chapter Four.
Chapter 1—General Provisions
 After reading this chapter, you will be able to:
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Describe the basic motion procedures used in
Bankruptcy Courts
List the essential qualifications to qualify as a
debtor under a particular Chapter of the Code
Identify the remaining provisions of Code
Chapter 1.
Notice and Hearing
 Signifies that due process must be given to
various parties involved in the proceeding
before a court order authorizing the action is
sought to be performed can be obtained.
 In the context of a bankruptcy proceeding,
due process often means that the affected
parties must merely be given notice and an
opportunity to be heard.
Get the Procedure Right
the First Time!
Errors can be costly.
Powers of the Court
 Section 105 concerns the court’s powers.
 Section 105 specifically gives the Bankruptcy
Court equitable authority to enact any orders
that are necessary to carry out the provisions
of the Bankruptcy Code.
 It is important to remember that Section 105
supplements powers already provided for
under the Code. It does not create new
substantive rights otherwise unavailable
under the Code.
Ex Parte
 An application made to the court without
notice or with limited notice to limited parties.
 Ex parte applications are specifically
permitted for various ministerial functions.
 In other circumstances, a legitimate
extraordinary circumstance must exist for the
court to consider ex parte relief.
Evidentiary Hearing
 A hearing held to take sworn testimony to
permit a Bankruptcy Court to make a decision
in a contested matter that is not a separate
adversary proceeding.
 An evidentiary hearing is similar to a trial in a
nonbankruptcy environment.
 A “trial” on a contested motion for relief from
the automatic stay is properly called an
evidentiary hearing.
Who May be a Debtor?
 Only persons may be debtors
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An individual is a person
A corporation can be a person
A partnership can also be a person
 A person has to reside or be domiciled in the
United States or have a place of business or
property in the United States.
Practice Pointer
 Chapter 7 debtors can be individuals, corporations,
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and partnerships, but not railroads, banks or
insurance companies.
Chapter 9 debtors are municipalities.
Chapter 11 debtors include anyone who could have
filed under Chapter 7 plus railroads and certain
banks.
Chapter 12 debtors are family farmers or family
fishermen.
Chapter 13 debtors can only be individuals with
regular income with less than certain specified debt.
Serial Filing
 A serial filing exists when a debtor files a
bankruptcy and has it dismissed by the court.
 Usually, this occurs when real estate is about
to be foreclosed or when the repossession is
about to occur after the automatic stay has
been relieved.