Posted on May 6th, 2011 in Bankruptcy Basics, Bankruptcy Planning, Chapter 13, Chapter 7, Procedure | No Comments »
There are times when debtors need to discharge debts owed to their local utilities. However, often the debtor has to come back to the same utility after discharging the debt owed to it in either Chapter 7 Bankruptcy or Chapter 13 Bankruptcy. The utility has to provide services to the debtor, provided that the debtor complies with applicable provisions of the Bankruptcy Code. The following will describe applicable law and practices common in Rochester, New York, area.
In general, the Bankruptcy Code requires utilities to continue to provide service after a bankruptcy filing, since debtors need electricity and heat as much as anyone else. The Bankruptcy Code authorizes utilities to charge a security deposit in exchange for providing their services.
In Rochester, Rochester Gas & Electric (RG& E) is the largest utility company. When RG&E receives a notice that they have been listed as a creditor on a bankruptcy, RG&E will close the existing account and open a new account (with a new account number) for the debtor. RG&E will calculate what is owed on the account as of the date the bankruptcy petition was filed. If RG&E is listed as a creditor in a bankruptcy case, they will request that a debtor provide them with a security deposit. They calculate the amount of the deposit at two months of average utility bills, with the deposit being due within 30 days of after RG&E sends out the security deposit request. The deadline for the deposit cannot be changed. After the debtor has made timely payments for a year, his deposit will be returned.
The above guidelines were discussed in a decision by the Bankruptcy Court Judge, John C. Ninfo II, which addressed these issues in In re Spencer. Judge Ninfo decided that:
1) Absent extraordinary circumstances, public utilities, pursuant to Bankruptcy Code Section 366(b) may require a Ch. 7, 11 or 13 residential customer to pay a security deposit equal to the highest two months, without late charges, of the previous twelve months.
2) While a case is still open, if a post-petition utility payment is more than 10 days late, the utility may apply to the court (on two business days notice to debtor and attorney) for an order authorizing termination of service should the debtor fail to pay any two consecutive monthly statements by the due date. The attorney for the debtor can set up a telephone conference and oppose the application if circumstances warrant it.
3) Should a residential customer who has made a two month security deposit be late in paying any statement, the utility may commence “whatever procedures are available to it under applicable state law and regulations to terminate service, so that it will be in a position to terminate service at the earliest permissible time before or after the debtor’s case is closed.
My concern as attorney representing debtors is that it may be difficult for my clients to come up with a substantial deposit. At the same time, I recognize that my clients have to pay for the service they receive, and that they already benefited from discharging their prior utility bills in bankruptcy.
If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with aRochester, NY, bankruptcy lawyer.