This post is the original content of the Colorado law firm of Wink & Wink, bankruptcy specialists. They maintain an excellent law blog with frequent updates on matters of bankruptcy that are as relevant here in Michigan as they are in Colorado. We hope you find this post as informative as we did!
For many bankruptcy filers, the prospect of the §341 Meeting of Creditors causes some stress and anxiety. It’s normal to be apprehensive about your 341 Meeting, but at the same time it’s nothing to be afraid of because most 341 hearings go quickly and smoothly. As with all other aspects of your bankruptcy case, preparation is the key. So what follows is an overview of the 341 process to ease your worried mind.
What Is A 341 Meeting?
The Meeting of Creditors is described in section 341 of the Bankruptcy Code, hence the name “341 Hearing”. It provides for a United States Trustee to convene and preside at a meeting of creditors and directs the Trustee to “orally examine the debtor” in a Chapter 7 case to make sure they are aware of 1) the consequences of filing for bankruptcy, 2) their ability to file a petition under another chapter, 3) the effect of any discharge of debts and 4) the effect of reaffirming any debt.
What happens in reality is that the bankruptcy trustee reads an advisement and then begins calling cases by debtor name. Once you hear your name called, you and your attorney walk up to the desk or podium and the panel trustee places you under oath, checks your identification and asks you questions on the record about your bankruptcy petition and your financial situation.
In Colorado, where I practice bankruptcy law, you will also hand a completed “Trustee Information Sheet” to the panel trustee along with a bank statement and pay stub that covers the date your case was filed. Additionally, the trustee must already have received a copy of your most recent tax return. As I will discuss below, these requirements alone are enough reason to make sure you are represented by an attorney at your 341 Hearing.
In fact, if you meet with an attorney who does not provide representation at the 341 Hearing as part of their services, you should keep looking. If there is ever a time to have the services of a bankruptcy lawyer, it is when you are answering questions about your case under oath.
Who Is the Bankruptcy Trustee?
In a Chapter 7 bankruptcy, private trustees—or panel trustees—are appointed to administer estates under the supervision of the United States Trustee for their judicial district. That means there is a U.S. Trustee’s office in each judicial district (part of the Department of Justice), and then each U.S. Trustee’s office has a panel of private trustees who do the day-to-day work of administering Chapter 7 cases, which includes presiding at the 341 Hearings.
These panel trustees are usually private bankruptcy attorneys who do the work on a part-time basis. They take a cut of any assets they find in the bankruptcy estate, along with a flat fee for each case they administer.
So, in a Chapter 7 case, you have two levels of trustee involvement: 1) the U.S. Trustee, who is reviewing your case to make sure you qualify for chapter 7 and that your case is not an ‘abusive filing’; and 2) the panel trustee who is looking for assets they can sell to make some money.
What Is the Trustee Looking For?
Because the panel trustee has a financial stake in every Chapter 7 case they see, the 341 Hearing really boils down to one thing: money. The panel trustee is looking to see if you have assets they can liquidate because that is how they get paid. (The panel trustee takes 25% of the first $5,000, 10% of the next $45,000, etc.) Therefore, the questions you are asked are tailored to determine if your estate has any non-exempt assets.
For example, if you own a car, the trustee will want to know how you came to the value the vehicle(s) you listed for the car in your bankruptcy petition. If the trustee thinks the value is too low, they may order an appraisal.
A bankruptcy attorney is invaluable in preparing you for the types of questions you may be asked at the 341 Hearing. This is because your attorney, in preparing your bankruptcy case, will know what property or interests you have that will be of interest to the trustee and can prepare you accordingly.
What About the Creditors?
Since the 341 is technically called the Meeting of Creditors, you may be wondering where the creditors are in the process. All of your creditors receive notice of your bankruptcy and also the date of your 341 Hearing. However, it is very rare for a creditor to appear at this meeting.
In fact, the only time you usually see creditors at the 341 Hearing is when the creditor is an ex: ex-wife, ex-husband or ex-business partner, someone with an opinion about your bankruptcy or who wants the trustee to know that they think you have some very fancy golf clubs in the garage that you didn’t list on your petition (another reason to have an attorney prepare your bankruptcy case!). In other words, you probably will never see Bank of America at the 341 meeting, they just aren’t emotionally involved and they don’t have the staff or money to send someone to every meeting of creditors when one of their customers files for bankruptcy.
The Role of the Attorney
The 341 Hearing is a perfect example of why having a lawyer prepare your bankruptcy AND represent you at the trustee meeting is essential. If you spend any time at all in the hearing room, listening to other cases as they go before the panel trustee, the benefits are obvious.
Last month, I saw an extreme example of what can happen when you aren’t prepared for or represented at the 341 Hearing. The trustee called the next case and the debtor approached the table, raised his right hand and took an oath. Once he sat down he was shaking and obviously nervous. The trustee asked him a few preliminary questions, checked his identification and then asked him if he had personal knowledge of the contents of his bankruptcy petition. This very basic question threw this guy for a loop. He asked to have the question repeated, and repeated again. And then he turned very, very pale and passed out. It was scary and sad because the poor guy was obviously nervous about his case and his petition and would have benefitted greatly from professional advice and representation. My client actually turned to me and said “Am I ever glad we have a good bankruptcy attorney!”
Fainting at the 341 Hearing is not at all common, but having your case dismissed for failure to provide your tax return to the trustee is, along with having to surrender property (like your tax refund) that you could have kept if you’d had legal advice.
Overall, the 341 Hearing is nothing to be scared of, as long as you are prepared and accompanied by an attorney who has prepped you for the meeting. Most 341’s go quickly and painlessly, especially when your case was properly prepared, you know what to except, and are ready for the specific questions that might come your way.
Labels: 341 meeting, Bankrupcty, creditors, debtor, discharge, trustee, Wink and Wink