Usually during the initial consultation, a Chapter 7 debtor will ask, with some trepidation, if he or she is required to appear in court. The answer is that most Chapter 7 debtors will never see the inside of a court room. However, every Chapter 7 debtor must attend a 341(a) meeting.
Section 341(a) of the Bankruptcy Code states that within a reasonable time after the filing of the bankruptcy petition, the United States Trustee shall convene and preside at a meeting of creditors. In New Jersey, the Office of the United States Trustee has established a panel of trustees to administer Chapter 7 cases. Almost all of the so-called "panel" trustee are attorneys or accountants who are familiar with bankruptcy. The United States Trustee assigns upwards of 70 cases to each panel trustee in a given month. It is the job of the panel trustee to conduct the 341(a) meetings for each debtor.
Los Angeles Bankruptcy Attorney, Free Bankruptcy, Filing For Bankruptcy,
7 days in advance of the 341(a) meeting, the debtor must make available to the trustee, a copy of the his or her federal income tax return for the most recent year before the filing. In addition, a creditor may request a copy of the tax return subject to procedures established by the Administrative Office of the Courts for safeguarding the confidentiality of the tax information.
At the meeting, the debtor must produce a photo ID (usually a driver's license) and a social security card. If the debtor does not bring these two items of identification, the 341(a) meeting is usually adjourned, and the debtor's attorney is required to send a written notice to all creditors of the adjourned date (for which the debtor usually will be charged an additional fee).
The debtor is required to bring his latest pay stub (called a payment advice), and may be required to bring documentation to prove his expenses if requested by the trustee. In addition, the debtor is required to produce his latest bank statement(s) and brokerage statement(s) if any. Although not required, a debtor who owns real estate should provide a copy of a comparative market analysis and a mortgage payout statement. This will allow the trustee to determine whether any equity exists. If the debtor does not speak English well, it is advisable to bring a translator and to notify the trustee in advance.
Although called a meeting of creditors, it is rare for a creditor to attend a meeting, and even more rare for a creditor to question the debtor. In the cases that I have seen a creditor attend and question a debtor, it is usually because an unsophisticated creditor believes that he is required to appear, or a creditor is trying to find out the location of collateral. If the creditor is not represented by an attorney, the exchange between the debtor and creditor can get a bit unpleasant because they tend to know each other. Therefore, the trustee usually limits questioning and advises the creditor to retain counsel.
For the most part, the trustee conducts the questioning of the debtor. In most cases, the questioning lasts for less than 5 minutes. In all cases, the trustee confirms that the debtor signed the petition and other required documents, and reviewed them for accuracy. He asks about assets, income, expenses, possible lawsuits, domestic support obligations, transfers of property, and why the debtor got into financial trouble. More time will be spent if the debtor sold real property within 3 years of the filing, or if the debtor had his own business.
I have been involved in many 341(a) meetings both as a trustee and as debtor's counsel. No matter what you say to a client, he is going to be nervous about the 341(a) meeting. The debtor is worried that he may freeze, that he may forget something important, that he will make a misstatement, that the trustee will say something that will embarrass him, that he will not get his discharge. Being questioned under oath by a trustee, who certainly is not your friend, is enough to make anyone nervous.
How is the best way to handle the matter as debtor's counsel? As an attorney, you want the questioning to be over as soon as possible, and you want no surprises. The best way to get this result is to make sure that you have properly vetted the petition, schedules and other filed documents to make sure they are accurate. You want to prepare your client for the hearing. Sample questions are available in the Chapter 7 Trustee's Manual which is available on the Internet. Go over the questions with the client and have them give answers to the questions. If the debtor sold a house, get the closing statement to ascertain what money the debtor received. Then find out what he did with the money. If the debtor lost his job shortly after selling his house, it is reasonable to assume that he used a good amount of the proceeds to survive until a new job. If the debtor owned a business, make sure that he has the records and can answer basic questions about the business and its finances. Preparation is the key.
I ask my clients to show up for the meeting early. As stated above, in today's economic environment, panel trustees may have upwards of 70 cases per month for which they must conduct 341(a) meetings. Trustees will usually schedule 30-40 meetings for a single day beginning at 9 AM and going until 3 or 4 PM. If your client gets to the hearing room early, he can listen to the questions that the trustee is asking the other debtors. They tend to be the same questions. He can also see that the rest of the debtors in the room look like him, sound like him and are in the same boat. This tends to calm down your client. Finally, I stress to the client that I am there to protect him- that's my job.
Most 341(a) meetings are closed by the trustee at the end of questioning. In some cases, the debtor may be required to provide some additional documentation. It is advisable to meet all reasonable requests of the trustee as soon as possible. The quicker the 341(a) meeting is closed, the quicker the debtor will receive his discharge- and that is the goal.
Is Bankruptcy Right For You? Talk to Bankruptcy Attorneys Free and Confidential. Licensed bankruptcy attorneys are available. Attorneys will call you to discuss your case for free. Find out if bankruptcy is right for your situation.
Rating of Atlanta Bankruptcy Attorney
Get Online Application at online Bankruptcy Lawyer.
0 comments:
Post a Comment