§ 36.2 — Petition, Signed by Debtor—“Wet” Signature Issues
Revised: May 6, 2009
The only document required by statute to commence a Chapter 13 case is a petition.1 The Bankruptcy Code and Rules require many other documents to maintain the case after filing the petition,2 but a naked petition commences a Chapter 13 case and, if filed by an eligible individual, invokes the automatic stay.3 The petition must substantially conform to Official Bankruptcy Form 1.
The Chapter 13 petition is hard to corrupt. The caption should list all names used by the debtor within the preceding eight years and the last four digits of the debtor’s social security number.4 The petition should be signed by the debtor and counsel. One petition can be filed for a husband and wife by simply filing a single Official Bankruptcy Form 1 including both spouses’ names, the last four digits of both social security numbers, signatures and separate answers by each spouse to the questions on Official Bankruptcy Form 1. Effective December 1, 2003, Bankruptcy Rule 1007(f) requires the debtor to submit “with the petition” a verified statement of the debtor’s entire nine-digit social security number.5 This requirement is implemented by Official Bankruptcy Form 21.6
A common mistake on the petition is the failure to list or misspelling of names used by the debtor in the last eight years. Without all names used by the debtor, creditors cannot figure out whether they have claims and the extent of the discharge is impaired. Maiden names, married names, former married names, nicknames, “doing business as” names, trade names, partnership business names, the names of sole proprietorships, the names used on business cards—many Chapter 13 debtors have used more than one name and all names must be pulled out of the debtor(s) and listed on the petition. Spell all names very carefully. Transposed letters or a mistaken or missing initial or “Jr.” on the petition disables the whole system and defeats the relief the debtor seeks.
Creditors often find debtors by matching up names and account numbers or social security numbers in a computer database. A single letter or digit in error can preclude matching a bankruptcy notice to a claim. Sometimes debtors have had more than one social security number or taxpayer identification number. All the numbers and all the possible names have to be on all the notices, and all the notices are generated based on exactly what the debtor lists on the petition. Getting this part of the petition right can’t be overemphasized.7
Prior to August 1, 1991, Official Bankruptcy Form 1 required a certification that the debtor was aware of the options to proceed under various chapters of the Bankruptcy Code, consistent with the 1984 amendments to the Code.8 Exhibit B to former Official Bankruptcy Form 1 required counsel to certify that the debtor had been informed of the chapters that were available to the debtor. The versions of Official Bankruptcy Form 1 since 1991 contain certifications similar to the old forms, but the instructions are not consistent with § 342(b) of the Code. The instructions have evolved to now state that the debtor’s certification is only to be completed “if petitioner is an individual whose debts are primarily consumer debts and has chosen to file under Chapter 7.” The current attorney’s certificate, found in Exhibit B to Official Form 1, states more generally it is “to be completed if debtor is an individual whose debts are primarily consumer debts.” The new instructions make sense—it was hardly clear why individual Chapter 13 debtors needed to be informed that they had the option of filing a Chapter 13 case.9 However, the 1984 amendments to the Code, codified in part at 11 U.S.C. § 342(b), contain no exception to the certification requirement for individual consumer debtors who are choosing to file Chapter 13 cases.
As amended in 2005 by BAPCPA, § 342(b) requires the clerk of court to provide to an individual debtor “whose debts are primarily consumer debts,” before commencement of the case a “brief description of chapters 7, 11, 12, and 13 and the general purpose, benefits and costs of proceeding under each of those chapters.”10 If the debtor is represented by counsel, the signature of counsel on Exhibit B to Official Form 1 meets this requirement. If the debtor files pro se , the clerk is supposed to provide the § 342(b) notice through Procedural Form 201.
Electronic case filing (ECF) in most bankruptcy courts has altered the issue whether the debtor personally signed the petition. Prior to ECF, it was anecdotally reported that some bankruptcy court clerks would not accept for filing a Chapter 13 petition tendered without a signature by the debtor, even if the petition was signed by counsel. In the ECF environment, if the bankruptcy court has fully implemented electronic filing, Bankruptcy Rule 5005(a) authorizes the court to “permit or require documents to be filed, signed, or verified by electronic means.”11 An electronic signature typically appears as a typed name, such as “Name /s/.” Local court rules often require an original signature of the debtor to be obtained and maintained by the attorney for some period of time.12 Familiarity with the local ECF rules, including requirements for signatures, is crucial. The electronic signature satisfies Official Bankruptcy Form 1, which contains a place for the debtor and, if a joint case, the debtor’s spouse to electronically sign the petition with a declaration under penalty of perjury that the information provided is true and correct.
This verification on the petition is required by Bankruptcy Rule 1008.13 However, there is nothing in the Bankruptcy Code itself to require that a petition be signed by the debtor or verified in the manner required by Bankruptcy Rule 1008. The Code could be interpreted to allow the filing of a Chapter 13 petition, for example, signed by an agent or attorney for the debtor.14
The 1993 amendments to Bankruptcy Rule 5005(a) provide that the clerk of the bankruptcy court “shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.” A bankruptcy court clerk is thus forbidden to refuse to accept for filing a Chapter 13 petition that is tendered without a signature by the debtor. The legal effect of an unsigned petition is a matter not to be decided by the clerk. It is certainly better for the debtor to sign the petition in the manner required by Bankruptcy Rule 1008 and Official Bankruptcy Form 1. Electronic filing and signing should eliminate the opportunity for a clerk to second-guess whether the debtor actually signed the petition. Failure to comply with local ECF rules—including any requirement to obtain and archive a “wet” signature15—portends a new universe of potential problems for debtors’ counsel.
But what about a Chapter 13 petition signed with the debtor’s name but signed by someone other than the debtor? Obvious examples would include a petition signed by a family member with (or without) power of attorney or a petition on which the debtor’s attorney signs the debtor’s name. The scant case law indicates there are several wrong ways for someone other than the debtor to sign the debtor’s name to a Chapter 13 petition.
In In re Washington,16 the debtors executed a power of attorney appointing their real estate agent “attorney in fact for purposes of a possible sale of their home, and ‘to file bankruptcy to stop foreclosure sale.’”17 To stop a foreclosure sale of the debtor’s home, the real estate agent went to an attorney and signed the debtor’s name on a Chapter 13 petition. About a month later, through a different attorney, the debtor moved to dismiss the petition, claiming it was a “fraudulent filing.”
The bankruptcy court found that the filing was a “legal nullity” because the debtor’s signature was forged on the petition by the agent:
Even if the Power of Attorney was executed by the Debtor, [debtor’s counsel] and [the agent] acted improperly. Although an attorney-in-fact can execute a bankruptcy petition on behalf of a debtor, under Fed. R. Bankr. P. 9010, the attorney-in-fact must execute it as attorney-in-fact. In this case, [the agent] simply forged the Debtor’s signature on the Petition. [Debtor’s counsel] then filed the Petition with the forged signature, knowing that it was signed by [the agent] and not by Washington. . . . When a case is commenced by the filing of a petition executed by an individual acting for the debtor under a Power of Attorney, certain minimum requirements must be satisfied to ensure that the petition is properly filed. In particular, the petition must be properly executed by the attorney-in-fact in a manner which reflects the representative capacity of the attorney-in-fact. . . . A petition is a legal nullity if the signature on the petition is forged, even if the party forging the signature had a Power of Attorney, if there was no indication that the document was signed in a representative capacity.18
Along the same lines, in In re Hurford,19 an attorney was sanctioned for signing the debtor’s signature on a Chapter 13 petition without indicating who was actually signing. The court explained:
[The debtor’s attorney] did not sign his name on behalf of his client; he signed his client’s name. 28 U.S.C. § 1746 specifically requires the signature of the person making the declaration. . . . Allowing a debtor to sign a document under penalty of perjury instead of under oath does not eliminate the requirement that the debtor personally sign the document.20
The bankruptcy court acknowledged, “[T]here are limited circumstances when courts have permitted a third party to sign a petition on behalf of the debtor”;21 but the court concluded: “Rule 1008 and 28 U.S.C. § 1746 require the debtor to personally sign the petition . . . . [Debtor’s counsel’s] actions [sic] of signing the debtor’s name was improper.”22
Washington and Hurford suggest that when the debtor is otherwise competent,23 the debtor’s signature on a Chapter 13 petition can be supplied by an agent with authority if the representative capacity of the person actually signing is indicated on the face of the petition.
Debtors’ counsel face a variation of this issue with respect to electronically filed Chapter 13 petitions. As electronic case filing spread across the bankruptcy landscape, a patchwork of local rules and administrative procedures with respect to original signatures came to overlay the verification requirement in Bankruptcy Rule 1008. As mentioned, some courts require debtor’s counsel to get and maintain an original signature from the debtor on a paper petition even when no paper petition is filed. There is potential for signature problems written all over this approach.
A local requirement to obtain and maintain a “wet” signature is perhaps effective to protect counsel from some claims of professional negligence or misconduct, but the integrity of the bankruptcy system is hardly at issue when an electronic signature is the equivalent of a wet signature for all purposes. If an electronic signature was filed without authority or inconsistently with an understanding between counsel and client, the volume of trouble is not reduced by the existence of a wet signature. Perhaps some honesty would help in this arena: local ECF rules requiring wet signatures have everything to do with attorneys protecting themselves and very little to do with any needs of the bankruptcy filing system. Experienced Chapter 13 practitioners might choose to obtain a wet signature on a petition without regard to any local rule with respect to electronic filing.
For example, in In re Wenk,24 during a snowstorm and with ambiguous authority from the debtor, Lawyer1 electronically filed a Chapter 13 petition. Within a few hours, through Lawyer2, the same debtor filed a second Chapter 13 petition. Lawyer1 could not produce an original signature for the debtor and ended up branded a forger:
In filing a petition electronically, the practitioner represents to the court that he or she has secured an originally executed petition physically signed by debtor prior to electronically filing the case. . . . [Lawyer1’s] action of filing a petition electronically purporting to have debtor’s signature is no different than [Lawyer1’s] physically forging debtor’s signature and handing the petition over the counter to the clerk. . . . [D]ebtor’s signature indicates debtor’s consent to the bankruptcy filing, consent which can only be given by debtor. . . . [Lawyer1] violated Federal Rule of Bankruptcy Procedure 9011 because there could not have been a belief that the filing of a petition with what amounts to a forged debtor’s signature . . . was proper.25
The Eighth Circuit sanctioned an attorney under Bankruptcy Rule 9011 for electronically filing a petition without meeting or speaking with the debtor. In In re Phillips,26 the debtor met with Law Firm concerning Chapter 13, and the debtor signed a petition. Law Firm filed the petition, but it was subsequently dismissed. Law Firm then hired a new attorney, Briggs, who fielded calls from the debtor about the status of the case, reviewed the file and saw the debtor’s signature. Realizing that the case had been dismissed and that foreclosure was eminent, Briggs electronically filed another case, without meeting with the debtor or obtaining a new signature.
Although Briggs apparently had good intentions when he hastily filed the [second] bankruptcy petition, those intentions cannot help Briggs escape the reality that he violated Rule 9011. At the very least, Briggs should have had a personal conversation with the debtor before filing a bankruptcy petition on her behalf. . . . [A]n attorney needs to know for certain that his client wishes to file for bankruptcy before a petition is filed. And the debtor’s signature on the original bankruptcy petition does more than simply authorize the petition’s filing; it also verifies, under penalty of perjury, that the information in the petition is correct. Without the personal authorization of the client, and especially without her verification that the facts in the petition were correct, Briggs did not make a reasonable inquiry before filing the December bankruptcy petition.27
Without regard to local rules, to minimize swearing matches with (former) clients cautious counsel will refuse to electronically file a Chapter 13 petition unless and until the debtor personally signs a petition. In an ECF district with a wet signature requirement like that described in Wenk, it is not clear that a Chapter 13 petition can be electronically signed and filed based on any form of authority other than an original petition signed by the debtor. Would a power of attorney authorizing counsel to sign the debtor’s name satisfy the requirement that the debtor “physically signed” a petition before it is electronically filed? The answer should be yes, but do you really want to risk the answer in your district?
The number of copies of a petition that must be filed was controlled by Bankruptcy Rule 1002(b) until the 1986 amendments deleted that rule. The number of copies that must be filed is now fixed by local rule or local practice. Of course, in an ECF district the number of copies is a nonissue.
Since March of 1995, the official form for the petition includes special signature and disclosure requirements for “bankruptcy petition preparers.”28
1 See 11 U.S.C. § 301; Fed. R. Bankr. P. 1002.
2 See 11 U.S.C. § 521(a), discussed in §§ 33.2 [ 11 U.S.C. § 521(a): Duty to File Schedules and Statements ] § 35.2 11 U.S.C. § 521(a): Duty to File Schedules and Statements, 41.2 [ Duty to File Statements and Schedules ] § 41.1 Duty to File Statements and Schedules and 387.1 [ New Filing Requirements and Other Duties: A List ] § 42.1 Filing Requirements and Other Duties: A List. See also §§ 34.1 [ Commercial Forms ] § 36.1 Commercial Forms–36.17 [ Local Documents ] § 36.37 Local Documents and 372.1 [ In General ] § 34.2 In General—Effects of BAPCPA–385.1 [ Filing Fees, Installments and Waiver ] § 37.6 Filing Fees, Installments and Waiver after BAPCPA.
5 Fed. R. Bankr. P. 1007(f).
6 See § 34.4 [ Statement of Social Security Number ] § 36.6 Statement of Social Security Number.
7 See § 349.1 [ Claims Not Provided for by the Plan or Disallowed under § 502 ] § 158.5 Claims Not Provided for by the Plan or Disallowed under § 502. See, e.g., Ellett v. Stanislaus (In re Ellett), 506 F.3d 774, 781 (9th Cir. 2007) (Alarcón, Thompson, Tallman) (“[D]ue to Mr. Ellett’s negligence in listing an erroneous SSN on his bankruptcy petition and § 341(a) notice, proper notice was not provided to the FTB. Consequently, Mr. Ellett’s Chapter 13 plan did not ‘provide for’ the FTB taxes.”).
8 See § 302 of Pub. L. No. 98-353, 98 Stat. 352 (clerk’s notice of available chapters, codified at 11 U.S.C. § 342(b)); § 322 of Pub. L. No. 98-353, 98 Stat. 357 (attorney’s certificate—“Exhibit B” to (former) Official Bankruptcy Form 1).
9 The Chapter 13 debtor is obviously aware of the alternatives to Chapter 7, thus the congressional intent of requiring the notice is satisfied. One court has concluded that the debtor’s failure to file the clerk’s notice does not affect the commencement of the case or imposition of the automatic stay. See In re Bryant, 51 B.R. 729 (Bankr. N.D. Miss. 1985).
10 11 U.S.C. § 342(b), discussed in § 375.1 [ Certificate of § 342(b) Notice ] § 36.33 Certificate of § 342(b) Notice after BAPCPA.
11 See § 34.1 [ Commercial Forms ] § 36.1 Commercial Forms.
12 See below in this section.
13 Bankruptcy Rule 1008 provides, “[A]ll petitions, lists, schedules, statements and amendments thereto shall be verified or contain an unsworn declaration as provided in 28 U.S.C. § 1746.”
14 See § 7.9 [ Eligibility of an Incompetent and Petitions on Behalf of Others ] § 10.9 Petitions on Behalf of Others: Incompetents, Next Friends, Powers of Attorney and the Like for eligibility of an incompetent debtor in a Chapter 13 case commenced by a “next friend” petition.
15 See below in this section.
16 297 B.R. 662 (Bankr. S.D. Fla. 2003).
17 297 B.R. at 663.
18 297 B.R. at 664.
19 290 B.R. 299 (Bankr. E.D. Mich. 2003).
20 290 B.R. at 300–02.
21 290 B.R. at 301.
22 290 B.R. at 302.
23 See § 7.9 [ Eligibility of an Incompetent and Petitions on Behalf of Others ] § 10.9 Petitions on Behalf of Others: Incompetents, Next Friends, Powers of Attorney and the Like.
24 296 B.R. 719 (Bankr. E.D. Va. 2002).
25 296 B.R. at 725–28.
26 433 F.3d 1068 (8th Cir. 2006).
27 433 F.3d at 1071.
28 See 11 U.S.C. § 110, as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 308, 108 Stat. 4106 (1994), and as further amended in 2005 by BAPCPA, discussed in § 4.2 Bankruptcy Petition Preparers, § 26.2 Use of Paralegals and Representatives, and § 69.2 Pro Se Debtors.>