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Bankruptcy Records

Understanding Bankruptcy in South Dakota

Bankruptcy in South Dakota State is a legal proceeding controlled by federal rules and laws and filed in (presided over by) federal courts in the state. Bankruptcy involves insolvent parties seeking relief from debts and other financial obligations through liquidation of assets or reorganization plan, depending on the type of bankruptcy filed. As per the U.S. Bankruptcy Code, there are several bankruptcy options available to individuals, businesses, and municipalities with each type having unique eligibility requirements and procedures. However, the process is typically initiated by filing a bankruptcy petition at the U.S. Bankruptcy Courts in South Dakota. Once filed, debtors shall receive bankruptcy protection and, upon debt repayment, receive a discharge letter that releases the debtor from liability of certain dischargeable debts.

What are South Dakota Bankruptcy Records?

Bankruptcy records in South Dakota contain information about a local person, business or company that filed for bankruptcy and the case's proceedings. The South Dakota District U.S. Bankruptcy Court addresses bankruptcy petitions in the state. Pursuant to 11 U.S.C. § 107 of the federal code, bankruptcy records are regarded as public documents and, as such, attainable by interested persons.

In South Dakota, the bankruptcy court has two locations in Pierre and Sioux Falls. The responsibility of maintaining and disseminating open bankruptcy records in South Dakota rests with these courts. When an organization or individual files for bankruptcy, the judge will appoint a trustee to oversee the petitioner's assets for the case's duration. The creditors are divided into two classes: secured and unsecured creditors. The secured creditors are usually the first to get paid. For a petitioner to qualify for the order that pardons the debt (the debt discharge order), such a person will be asked to provide specific details entered into the bankruptcy record. These include income statements, expenditures, recent financial transactions, and so on.

What do South Dakota Bankruptcy Records Contain?

South Dakota bankruptcy records generally contain details on the financial status of the petitioner and the creditors. However, the contents may vary from one case to another depending on the type of bankruptcy being filed. The following details are contained in a South Dakota bankruptcy record:

  • The debtor's gross income and all sources of income
  • The debtor's total asset includes real properties, stocks, bank accounts, stock, investments, etc.
  • The names of the creditors, the amounts to be reimbursed, and their addresses
  • The personal details of the debtor and legal advisor (if applicable)
  • The type of bankruptcy filed (chapter 11, 12, 13, 15, 7, 9)
  • The status of the case
  • Information concerning the trustee
  • The date when the case was filed as well as closing and discharge dates
  • Name of the court and judge

Are Bankruptcy Records Public Information?

Yes, the South Dakota bankruptcy records are generally accessible to the public. This is pursuant to the Freedom of Information Act. As stated in the law, every resident of the state and interested persons are empowered to examine the document during the appropriate custodian's open hours. However, not all parts of a bankruptcy record are accessible to the public as sensitive details such as bank account numbers and names of minor children are redacted.

Also, the court may decide to seal a record if its holder petitions for it and convinces the judge to do so. All interested persons can order electronic or physical South Dakota bankruptcy records by sending a request to the authorized custodian.

Record seekers may also obtain bankruptcy records from third-party websites. These non-governmental data platforms often come with tools that help simplify the search for single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. Most third-party sites require some information to process a search. Record seekers may need to provide:

  • A bankruptcy case number (if known)
  • The name of the debtor on record

How to Get South Dakota Bankruptcy Records

Interested parties can obtain bankruptcy records in South Dakota online or in person.

In-Person

Generally, the U.S. bankruptcy court maintains an index accessible via a computer terminal located in its courthouses. This index comprises the names of all businesses and individuals who have filed for bankruptcy in the state. Individuals interested in viewing a bankruptcy record can contact the court clerk where the case was filed. The clerk will require such persons to complete an order form by providing information such as case number, docket number, document title, e.t.c. Below are the two locations of the South Dakota bankruptcy court and when they open for business:

U.S. Post Office and Federal Courthouse
225 South Pierre Street, Room 203
Pierre, SD 57501-2463
Phone: (605) 945-4460

Open on all business days except on federal holidays from 8:00 a.m. to 5:00 p.m.

U.S. Courthouse
400 South Phillips Avenue, Room 104
Sioux Falls, SD 57104-6851
Phone: (605) 357-2400

Open on all business days except on federal holidays from 8:00 a.m. to 5:00 p.m.

Requesters can print out South Dakota bankruptcy records from the terminals in the courthouse. The fee for this is $.10 per page, while printing copies of the document from the clerk's office costs $.50 per page. Fees are payable with money orders or checks.

Online

Interested persons can order South Dakota bankruptcy records online through Public Access to Court Electronic Records (PACER). This system enables requesters to access case information from the South Dakota bankruptcy courts. The interested individual will need to open an account before accessing documents with PACER. Obtaining bankruptcy case information will cost the requester $0.10 per page, and acquiring a 30-page record will cost the person $3.00. However, this estimation does not include name searches, non-case-specific files, or court transcripts.

Interested parties should, however, note that closed bankruptcy records (15 years and after) are not available through this medium. Usually, once a couple of years (15 years) have passed, the records are sent to the Federal Records Center (FRC) in Denver. When this happens, the archived records can only be retrieved from NARA (National Archives and Records Administration).

To obtain a closed South Dakota bankruptcy case file, interested parties can visit the NARA website. The fees for the record vary by the type of file being sought. The following is a breakdown of the document types and costs:

  • Docket Sheet (NATF 90B): This is a list of cases filed in a South Dakota bankruptcy case. It contains just an outline of the case. The fee for this is $35 (shipping and handling).
  • Entire Case File (NATF 90A): This includes all case documents from a bankruptcy case. The fee is $90 (shipping and handling)

Requesters must generally provide the following details to obtain records from NARA:

  • The state where the court resides
  • The city of the court
  • The debtor’s name(s)
  • The case number
  • Transfer number (F.R.C.)
  • Box number
  • Location number

In addition to the government-operated sites and platforms, third-party websites also provide search and retrieval tools to assist persons who want to obtain South Dakota bankruptcy case records.

How do I Find Out if My Bankruptcy Case is Closed in South Dakota?

Persons who filed for bankruptcy in South Dakota are generally notified when their case gets closed. Apart from this, an interested individual can also determine if the bankruptcy case is closed by contacting the appropriate clerk's office to inquire about the case’s status.

Can a Bankruptcy be Expunged in South Dakota?

No, a bankruptcy cannot be expunged in South Dakota. An expungement is a court order that erases a record like it was never compiled. Also, the South Dakota legislation does not make any provision for the expungement of bankruptcy as it is an issue for the federal courts. However, an individual may petition the bankruptcy court to seal a bankruptcy record. If such a person can prove the reasonableness of sealing the record, the court may order the document to be sealed. However, sealed South Dakota bankruptcy records may still be accessible to specific persons such as law enforcement officials and court-authorized individuals.

Although bankruptcy records cannot be expunged, confidential parts of the record are not accessible to the general public as they may be blacked out. Typically, bankruptcy records get destroyed after 15 years (44 U.S.C. Section 3303).

What Is the Downside of Filing for Bankruptcy in South Dakota?

Although filing bankruptcy helps insolvent entities settle most debts and provides an opportunity to start afresh, it does not mean that the debtor will get an entirely clean slate. This is due to non-dischargeable debts like student loans, domestic support obligations (spousal or child support), criminal fines and restitution, and certain recent taxes. Hence, a debtor also has to pay these debts despite receiving a discharge letter from the court.

Another downside of bankruptcy is that the entire process may be expensive depending on the debtor’s unique financial circumstances. The filer has to pay filing fees and additional costs like attorney fees, accountant fees (for financial audit), and other court fees. Moreover, the process may be complex and often takes years to settle, excluding Chapter 7 bankruptcy. Also, a debtor may face restrictions in qualifying to file a type of bankruptcy or receive an automatic stay.

Debtors should note that bankruptcy records are mainly public. Therefore, information related to the proceeding is available to anyone interested in the case, including potential landlords and employers. This may negatively influence an individual's chances to rent a property or get managerial job positions.

The public nature of these records also allows credit reporting agencies to gather bankruptcy information and disclose this on an individual’s credit report for up to 10 years. This may lead to further implications like loss of credit card, fall in credit score, inability to obtain credit options (loans, mortgage, and credit cards), or higher interest rates.

Furthermore, filing for bankruptcy may lead to loss of assets, loss of business control, or tight budget, depending on the bankruptcy chapter. In some cases, filing bankruptcy may also lead to seized tax refunds.

Note: Debtors are also at risk of felony charges if all assets and earnings are not disclosed.

What Is Chapter 11 Bankruptcy in South Dakota?

Chapter 11 bankruptcy in South Dakota is a federal-authorized debt relief process that involves reorganization. Celebrities, athletes, railroad debtors, small businesses, and corporations that file for bankruptcy under this chapter have to file a reorganization plan that restructures debts, presents business operations guidelines, and proposes a repayment method.

Depending on the debtor's circumstances, debtors can restructure debts by changing interest rates, adjusting mortgage balance, increasing amortization length, terminating leases, or letting go of non-profitable properties. Moreover, the plan must identify debts, classify creditors' claims into priority, unsecured, and secured debts, and specify which class shall be paid in full or in percentage. After creditors vote and the court approves the plan, the debtor shall implement the reorganization plan as a debtor-in-possession or through the court-appointed trustee.

Persons may choose to file Chapter 11 bankruptcy if they wish to keep non-exempt assets but do not qualify for relief under Chapter 13 of the Bankruptcy Code. However, the process is often complex, and debt repayment may take years. Records of Chapter 11 bankruptcy in South Dakota are available indefinitely unless removed from public access by the court.

What Is Chapter 7 Bankruptcy in South Dakota?

Chapter 7 bankruptcy is a straight debt relief option that involves the liquidation of a debtor's nonexempt properties to repay debts. Proceeds from the asset liquidation help repay priority, secured debts, and some unsecured debts, with the court discharging the remaining unsecured debts that are eligible for discharge. In no-asset cases where the debtor does not have nonexempt property, the court lets creditors collect the collateral property securing the debt, and the court discharges most unsecured debts.

Debtors have to pass a means test and complete a credit counseling course within 180 before filing the bankruptcy petition to qualify for Chapter 7 bankruptcy. The process may take four or five months from filing to discharge, and records will be publicly available until the court seals or expunges them.

What Is Chapter 13 Bankruptcy in South Dakota?

Chapter 13 bankruptcy is a reorganization bankruptcy available to wage earners with high enough disposable income who meet the following requirements:

  • Complete a credit counseling course at authorized agencies within 180 days before filing
  • Have secured debts not exceeding $419,275
  • Have unsecured debts not exceeding $1,257,850
  • Provide copies or transcripts of tax returns for the most recent tax years
  • Have no filing restrictions because of a recently dismissed bankruptcy petition

The Chapter 13 filing process is similar in some ways with both Chapter 7 and Chapter 11 bankruptcies. For instance, Chapter 13 involves reorganization and monthly payment like Chapter 11 bankruptcy, while the Chapter 13 filing process is close to that of Chapter 7 bankruptcy, excluding the means test and reorganization plan. Generally, Chapter 13 bankruptcy is more complicated than Chapter 7 bankruptcy but is less complex than Chapter 11 bankruptcy.

Once a debtor files a repayment plan and the court approves it, the debtor must make the first monthly payment within 30 days and shall continue until debt discharge or bankruptcy conversion. Records of this form of bankruptcy shall be public except exempted from disclosure by court order or ruling.

What Is the Difference Between Chapter 7 and Chapter 13 Bankruptcy in South Dakota?

Filing for bankruptcy under Chapter 7 or Chapter 13 of the U.S. Bankruptcy Code may involve different factors like eligibility, filing process, debt repayment approach, bankruptcy duration, and other unique advantages or disadvantages connected to each procedure. Firstly, Chapter 7 and Chapter 13 bankruptcy have different eligibility requirements, and persons who qualify for the latter do not often qualify for the former. Moreover, involuntary filing is possible under Chapter 7 bankruptcy, but that option is not available under Chapter 13 bankruptcy.

Additionally, Chapter 7 is a straight liquidation process that involves the collection and sale of nonexempt assets to settle debts. On the other hand, Chapter 13 bankruptcy deals essentially with reorganization and repaying debts with disposable income according to the repayment plan. Related to this, Chapter 7 and Chapter 13 bankruptcy have unique disadvantages. For instance, Chapter 7 bankruptcy may lead to loss of assets and business shut-down, while Chapter 13 does not provide speedy relief from debts.

Since Chapter 7 is a straightforward procedure, it is less complicated and takes four to five months to complete. However, Chapter 13 usually takes longer because of the creation, filing, and approval of the repayment plan. Furthermore, debtors have three to five years to repay debts. Dischargeable debts under each chapter may also differ in some ways.

Also, Chapter 13 bankruptcy shall reflect on an individual’s credit report for up to seven years but lasts up to 10 years for Chapter 7 bankruptcy.

What Is Bankruptcy Protection in South Dakota?

Bankruptcy protection in South Dakota is any legal provision that restricts creditors from taking certain actions against debtors once the court files the bankruptcy petition. In South Dakota, the principal bankruptcy protection available to debtors as per the U.S. Bankruptcy Code is the automatic stay.

The automatic stay is an automatic induction that becomes effective once the court files a debtor's bankruptcy petition and typically lasts until the bankruptcy proceedings are completed. This induction prevents collection activities like pending/ongoing foreclosures, repossessions, collection mails/calls, debt-related lawsuits, and other collection activities. Debtors can sue creditors who violate the stay order despite being aware of its status, repossess property collected while the stay was effective, as well as collect damages.

Another feature of an automatic stay is that creditors lose their collection rights. Hence, the debtor no longer deals directly with each creditor but with the bankruptcy estate, which gives all creditors the same chance of collecting debts.

However, an automatic stay does not all actions against the debtor, such as:

  • Tax audits, assessments, and demands for tax returns
  • Family court cases, domestic support proceedings, or collection of obligations
  • Criminal actions
  • Completed foreclosures
  • Suspension of professional, occupational, hunting, recreational, and driver’s licenses
  • Bank account garnishments
  • Certain eviction actions

Moreover, secured debtors may file a motion for relief from the automatic stay and continue collection activities once the court lifts the stay. Repeat bankruptcy filings may also lead to a limited stay period or no automatic stay at all. For instance, if a debtor has one bankruptcy petition dismissed within one year of filing another bankruptcy petition, the stay may only last for 30 days unless the court makes an exception. More repeated filings may lead to no automatic stay.

Other bankruptcy protections for creditors and debtors under the Bankruptcy Code include:

  • Adequate protection (Section 361): Protects creditor's rights and claims
  • Use, sale, or lease of property (Section 363): Debtor may use collateral with court authorization
  • Obtaining credit (Section 364): Provisions on getting authorized loans
  • Executory contracts and unexpired leases (Section 365): Trustee’s rejection or approval of a debtor’s unexpired lease or executory contract
  • Utility service (Section 366): Continued utility service with the assurance of payment
  • Post-petition effect of security interest (Section 552): Liens on properties obtained after the court files the bankruptcy petition

What Are South Dakota Bankruptcy Exemptions?

Bankruptcy exemptions in South Dakota are provisions of the state law that protect a debtor's assets - or certain amounts in value – from liquidation. Federal bankruptcy exemptions are not available in South Dakota, and residents may only claim the following:

Homestead exemption:

  • Real property or mobile property bigger than 240 square feet at its base and registered in state at least six months before filing
  • Home equity in town property less than one acre or 160 acres elsewhere
  • Less than $170,000 in sale proceeds for widows or widowers over the age of 70 who have not remarried – exempted for one year after the property sale

Personal property exemption:

  • Family pictures
  • Up to $200 in books
  • Clothing
  • Food and fuel supply to last one year
  • Thrift savings plan
  • Church pews, burial plots, and cemetery association property

Wildcard exemption:

  • Up to $7,000 claims in personal property for the head of a family
  • Up to $5,000 claims in personal property for non-head of family

Wage exemption:

  • Earned wages owed 60 days before filing bankruptcy
  • Work program wages of prisoners

Insurance exemption:

  • Up to $10,000 in life insurance proceeds for surviving child or spouse
  • Up to $20,000 cash value from life or health insurance proceeds
  • Health aids
  • Fraternal benefits

Pension and retirement exemption:

  • Public employees
  • Up to $1,362,800 in IRA, Roth IRA, and qualified employee retirement account (effective June 2021)
  • Up to $250 monthly in annuity contracts
  • Tax-exempt retirement accounts
  • City employees

Public benefit exemption:

  • Crime victims' compensation
  • Public assistance
  • Workers' compensation
  • Unemployment compensation

Miscellaneous exemption: Partnership property

Federal non-bankruptcy exemptions are applicable in South Dakota. Residents should note that there are conditions and limitations for exemptions as well as penalties for violations.

What Are the Other Types of Bankruptcy in South Dakota?

Apart from Chapter 7, 11, and 13 bankruptcies, entities may also file for bankruptcy under Chapter 9, 12, or 15 of the U.S. Bankruptcy Code. Chapter 9 bankruptcy is a form of bankruptcy strictly available to municipalities such as cities, counties, and towns. Filers cannot liquidate assets but may settle debts using reorganization. Hence, the municipality may renegotiate or adjust terms and create a repayment plan that may take years.

On the other hand, Chapter 12 bankruptcy is for family fishermen and farmers with regular annual income who meet the eligibility requirements. This involves long-term debt repayment with the debtor's income according to the filed and approved reorganization plan.

Lastly, Chapter 15 bankruptcy provides guidelines for ancillary and cross-border cases, such as jurisdiction, international cooperation, and measures to protect interests and efficiently settle debts.

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