Where Should You File For Bankruptcy In New York?
The bankruptcy court is part of the federal court system, which is divided into districts. There is at least one federal district court in each state. Some states are divided into multiple districts, such as New York, which has four federal court districts. Once an individual has decided to file for bankruptcy, he or she must file the bankruptcy petition in the proper district. Determining the proper district in which to file a bankruptcy case can be complex. Filing for bankruptcy in an improper district can result in significant delays in the case, and possibly dismissal.
It is important to contact an experienced bankruptcy attorney before filing for bankruptcy. At The Law Office of Andrew M. Doktofsky, P.C., I focus my practice on consumer bankruptcy law, and I possess the knowledge and experience necessary to guide you through a successful bankruptcy filing in Suffolk County, Nassau County, or Long Island.
The Factors To Be Considered
Venue is the legal term for the district in which a case may be filed. Venue in most bankruptcy cases is governed by 28 U.S.C. § 1408. This statute permits a case to be commenced in the district in which any of the following are located:
- Debtor’s domicile
- Debtor’s residence
- Debtor’s principal place of business in the United States
- Debtor’s principal assets in the United States
The debtor’s domicile, residence, principal place of business or principal assets must have been located in the district for the 180 days preceding the bankruptcy filing or for a longer portion of the 180 days than in any other district. This generally means that the debtor’s domicile, residence, principal place of business or principal assets must have been located in the district for at least 91 days for venue to be proper. The vast majority of Chapter 7 and Chapter 13 bankruptcy cases are filed in the district in which the debtor resides.
One additional basis for venue is if there is a pending bankruptcy case concerning the debtor’s affiliate, general partner or partnership in the district. This provision is rarely utilized.
While the statute provides several options regarding where venue is proper, there are many technicalities that could cause the transfer of your case to another district or even dismissal of the case. It is imperative to contact an experienced bankruptcy attorney to properly determine where venue is proper and to anticipate any possible objections to the venue selected.
What Are The Differences Between A Domicile And A Residence?
Domicile and residence are legal concepts that refer to a debtor’s physical presence; however, there are important distinctions between the two concepts. A debtor may have multiple residences or a different residence from his or her domicile. This can significantly complicate a case, and may result in significant delays if a creditor objects to the venue.
Domicile is considered to be a debtor’s permanent home. The critical determination of domicile is the individual’s intent to remain in a particular location indefinitely. If an individual remains in a place temporarily, even if it is for an extended period of time, the place is not the person’s domicile. A person can have only one domicile.
Residence refers to the debtor’s temporary habitation. An individual may reside at a particular residence for years, thus making the location appear to be the person’s domicile. However, if the individual intends to return elsewhere, the habitation would be considered the debtor’s residence.
Understanding the distinction between residence and domicile is crucial, because there may be multiple places where the bankruptcy case can be filed. This can lead to objections from creditors, especially when one particular district or forum is more “fair” or “convenient”. Only an experienced bankruptcy attorney can appropriately advise you on where to file for bankruptcy.
Do You Know Where Your Principal Place Of Business Is?
Determining where a debtor’s principal place of business is located can be complicated, especially when a debtor has multiple offices or locations of operation. Consistently, courts have determined the principal place of business to be in the district where the business’s “nerve center” is located. [Hertz Corp. v. Friend (2010) US, 130 S.Ct. 1181, 1192]
The Court in Hertz concluded a business’s “nerve center” is where the officers direct, control, or coordinate the corporation’s activities. As a result, it is possible that the debtor’s principal place of business is in a district other than the place of incorporation or organization.
Often, the determination of a business’s principal place of business is fact intensive. The court will consider many factors, including the business activities and location of managerial or executive employees. An experienced bankruptcy attorney will know how to properly determine where a business’s principal place of business is located. It is important to consult a bankruptcy attorney when making this determination.
Cases Are Sometimes Transferred To Another District
At times, a creditor may oppose or object to a case being filed in a particular district. A creditor may object to venue for a variety of reasons, including convenience and efficiency. Under bankruptcy law, a creditor may request that a bankruptcy case be transferred or dismissed under certain circumstances.
If a debtor filed a bankruptcy case in the proper venue, according to 28 U.S.C. § 1408, the court may transfer the case to another district court on two grounds – either it is in the interest of justice to transfer the case to another district, or it is more convenient for the parties. 28 U.S.C. § 1412. Because venue is proper, the court is not obligated to transfer the case. Generally, the court makes a case-by-case determination when asked to transfer a case that was filed in the proper district.
If venue is not supported by 28 U.S.C. § 1408, the court must either dismiss the case or transfer the case to another district if it is in the interest of justice to do so. 28 U.S.C. § 1406(a). Unlike § 1412, which governs transfer when venue is proper, § 1406(a) requires the court to either dismiss or transfer the case.
The List Of The Bankruptcy Courts In New York
The Bankruptcy Court for the Eastern District of New York – There are two court locations in the Eastern District of New York – the Central Islip Courthouse and Brooklyn Courthouse. All bankruptcy proceedings in the Eastern District of New York are filed with this court. The links for these courts can be found below.
- Central Islip Courthouse – Serving Nassau and Suffolk Counties
- Brooklyn Courthouse – Serving Kings, Queens, and Richmond Counties
The Bankruptcy Court for the Southern District of New York – There are three court locations in the Southern District of New York – the Manhattan Courthouse, Poughkeepsie Courthouse, and White Plains Courthouse. All bankruptcy proceedings in the Southern District of New York are filed with this court. The links for these courts can be found below.
- Manhattan Courthouse – Serving Bronx and New York Counties
- Poughkeepsie Courthouse – Serving Dutchess, Orange, Putnam, Sullivan, and Ulster Counties
- White Plains Courthouse – Serving Rockland and Westchester Counties
Talk To A Skilled Bankruptcy Attorney For Free
Contact The Law Office of Andrew M. Doktofsky, P.C., today for a free consultation about filing for bankruptcy in Suffolk County, Nassau County or Long Island. Call me at 631-812-7712 or reach out online.
This is a debt relief agency. I help people file for bankruptcy relief under the Bankruptcy Code.