A Totally Biased Review of the New Bankruptcy Forms

As of December 1, 2015, an entirely new set of official bankruptcy forms became the standard for use by anyone, individual or business, filing for bankruptcy relief.  This is the first major reconfiguration of the bankruptcy forms since 1979.  So, after a few months of using the new forms, what do we think?  Good, bad, indifferent?

I’m a lawyer, so I have to insert a disclaimer here.  I have been practicing in the bankruptcy courts for 30 years, and until December I used the same forms that entire time.  So, I am old, and set in my ways, and resistant to change.  So I am hardly in a position to offer an unbiased critique of the new forms.  But I am still pretty sure they are awful.  And not just because they are new.  And another word about something that is always problematic when we talk about “forms.”  There is a tendency, even among lawyers, to think that anything that comes with a “form” must be easy, and therefore doesn’t require much knowledge or experience.  But bankruptcy is “not about filling in forms—it is about understanding the rules, statutes and case-law that dictate and interpret how forms are completed.”

Since I “grew up” as a lawyer reading those old forms, it is hard for me to put myself in the place of someone trying to read them for the first time.  But I can see that they were a bit dense, like a lot of government-generated forms, and often used language that was a bit stilted.  For example, the old forms asked you to list “property…transferred either absolutely or as security.”  So, in that context, “transfer” means to sell, give away, or mortgage, not exactly crystal clear from the context.  The new forms ask the same question this way:

Within 2 years before you filed for bankruptcy, did you sell, trade, or otherwise transfer any property to anyone, other than property transferred in the ordinary course of your business or financial affairs?

Include both outright transfers and transfers made as security (such as the granting of a security interest or mortgage on your property). Do not include gifts and transfers that you have already listed on this statement.

I can see that the new forms might be a little clearer in the way certain questions are phrased.  It is clear that a great deal of effort was expended in trying to make the forms user-friendly for non-lawyers.  I can imagine the drafters starting out with that as their number one goal: produce a set of forms that an ordinary person could read and understand.  And while that might be a laudable goal in general, it went way off the rails by the end of the project.  Like a lot of things that are done by committee, the end result missed the mark.  By a lot.  By the way, this project started in 2008.  It took the committee seven years to draft these new forms.  Seven years.

It reminds me of a church I know that built a prayer garden.  Which sounds like a really good idea, right?  A quiet place for contemplation and prayer, in a beautiful natural setting, what could possibly go wrong?    Well, apparently someone on the committee decided that some flag poles would be a good idea.  Flags aren’t my idea of a natural feature of a prayer garden, but it’s not too far out there.  But then apparently the flags gave someone else an idea–bronze statues of service men, from all four branches of service.  So now the prayer garden has flags and statues, which is a little odd, I think.  But here’s where the project goes totally off the rails.  Someone else has the idea of offering a full size (meaning HUGE) replica of an 18th century cannon.  So now there’s flags, and statues and a giant CANNON in the prayer garden.  Which I don’t think was in anyone’s thinking when the whole thing started.

So, I imagine that the drafters of these new forms started off with the idea of making them understandable to ordinary people.  The problem with that is two-fold.  The first is that generally ordinary people aren’t the ones dealing with them.  Lawyers are.  Not always, it is true, but mostly.  And second, by trying to phrase everything in a way that anyone could understand it, you end up with so much verbiage that no one can understand it.  The forms are so long that it is virtually impossible for anyone who is NOT a lawyer to stay awake through the whole thing. And by asking virtually every question two or three ways, the forms are not only lengthy, they are confusing.

For example, there are back-to-back questions on the Statement of Financial Affairs, one asking about lawsuits and court action, and the next asking about foreclosures and repossessions.  If you listed the suit for foreclosure on the first question, do you have to answer it again in the second question?  And, more importantly, the questions don’t seem to cover a voluntary repo or a deed in lieu of foreclosure in either question.  We’ve made it so simple it doesn’t cover the ground adequately.  And I could give you other examples of similar issues.  So, instead of simplifying the forms so that a lay person can read and understand them, the new forms make it even more of art to understand how to respond, and even more of a necessity to have an attorney to help you navigate them.

I’ve mentioned the length of the new forms, but it is worth repeating.  They are looooonnnnnnggggg.  Way too long.  In my cases that straddled the introduction of the new forms, I had one where the petition was 47 pages when printed on the old forms.  When I converted it to the new forms, it was 80 pages.  No new information, nothing added.  Just 30 pages of…what?  White space–lots of white space.  Repetitive questions accounts for some of that space.  Summaries–which used to be a page, or page and a half at most–now it’s four pages.  Recitation of the law that doesn’t apply to the case at hand–why include it if it isn’t apropos?  Repetition of other information, over and over.  For example, if you include extra information about an asset–say the VIN number of your car–it appears everywhere the car is mentioned.

And another thing–the instructions.  Yes, these new forms come with instructions.  Forty-two pages of them.    So you need 42 pages of instructions to fill out 80 pages of questions.   Who can slog through that, not to mention the trees we are killing?

And finally, my own personal pet peeve.  There are no signature lines.  Oh, there are places to sign, but no lines.  Why no lines?  After wasting all this paper, are we going to save on ink?  It makes it hard to find where you are supposed to sign, and easy to overlook one or two.  No “X” to tell you where to sign, no line to sign on–and it just drives me crazy.  Just give us a line!!

In short, my opinion of the new forms–good intentions, poor execution.

About

Däna Wilkinson (pronounced "Donna") is a bankruptcy lawyer practicing in Spartanburg, South Carolina and serving South Carolina's upstate region, including Greenville, Spartanburg, Gaffney, Union, Anderson, Easley and Pickens. She has been in practice for more years than she cares to count, but it’s more than 20 years. Däna has been a bankruptcy lawyer from the very beginning of her career as a lawyer.

Däna went to law school at the University of South Carolina, where she was Student Works Editor on the South Carolina Law Review and a member of the Order of Coif. She started doing bankruptcy work while still a student, working for a bankruptcy boutique firm whose members included a Chapter 7 panel trustee, and recognized experts in Chapter 11 reorganizations. She enjoyed the work from the beginning, and upon graduation took a job as a law clerk to the Honorable Rodney Bernard, bankruptcy judge for the Western District of Louisiana. Judge Bernard had spent a number of years on the bankruptcy bench, and was an excellent teacher and mentor. Upon Judge Bernard’s retirement, Däna stayed on for a time as clerk to the Honorable Donald W. Boe, until homesickness for South Carolina struck, and she returned to private practice in Charleston. Four years later, she received an offer to return to Columbia, where she practiced until 1997.

In 1997, planning to start a family, Däna decided to return home to the Upstate, and opened her own practice in Spartanburg in 1998. Over the years, Däna represented all sorts of parties in bankruptcy: business debtors in reorganization, individual debtors, creditors and creditors’ committees, and trustees. In establishing her own practice Däna decided to focus on consumer debtors, ordinary people who find themselves overwhelmed by debt. Her focus is on the individual needs of clients, and on crafting a solution to their unique financial needs. She is committed to helping clients make a fresh start, and preserving their dignity in the process.

Däna is the proud mother of a beautiful, talented and very active daughter, who is, as her mother says, “practically perfect.” She is also active in both church and community activities, all of which means that there is a fair chance that any given blog post was written while in the car pool line or while waiting for a hearing or a meeting to start.

Däna is also certified as a bankruptcy specialist by the South Carolina Supreme Court, which means that she has taken and passed a proficiency examination on bankruptcy law, devoted her practice to bankruptcy for a number of years, and continues to take classes on bankruptcy law and related issues.

Contact information for Däna Wilkinson:

Law Office of Däna Wilkinson
365-C East Blackstock Road
Spartanburg, SC 29301
(864) 574-7944
[email protected]
www.danawilkinsonlaw.com

Däna also blogs at www.bankruptcylawnetwork.com.


Comments

  1. Ziegler says:

    I absolutely love this post and couldn’t agree with you more. I literally laughed out loud reading it because it is so true. 7 years just to make it worse than it was in some aspects. Thank you for sharing this post. It was certainly a refreshing and enlightening read.

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