By Ryan C. Wood
I really do not know the utility of this article given I know this set of circumstances rarely will ever come up. I have literally had a hand in four or five thousands cases over the years and this issue has not come up so far. I also administered countless Chapter 13 cases as the staff attorney for David Burchard, the Chapter 13 Trustee for the San Francisco and Santa Rosa Divisions of the United States Bankruptcy Court for the Northern District of California. The set of circumstances that this could be an issue are very narrow. The bankruptcy filer would at some point injured or damaged a minor somehow or the person with a claim against the bankruptcy filer became incompetent over time. Also, if the person with a claim is an adult, how would the bankruptcy filer or their Bankruptcy Attorney ever know the person is incompetent? They probably would not.
Nonetheless if this issue does come here you go. It is rare for an adult, someone over the age of 18, to be indebted to or someone under the age of 18 has a “claim” against an adult. It is also rare for someone to owe an incompetent person money. If someone is incompetent they cannot enter into a contract legally. It is possible that the debt or claim arose prior to the person becoming incompetent. So there are a some reasonable hypothetical facts to help discuss this issue. In the real world you will probably look long and hard to find this was every an issue in a bankruptcy case.
The issue is how can you provide notice of a bankruptcy filing to an infant or someone who is incompetent? An infant is defined as a person who has not attained legal majority; or under-age or under 18 or 21 years of age depending upon state law. A person that is under the age of minority cannot be served legally even if they are a creditor of the person who is filing for bankruptcy protection. Also, a person that is incompetent cannot be or accept service given they are incompetent. Incompetency is generally defined as an adult who can no longer take care of their own financial and personal affairs because of mental problems or potentially a physical problem too.
The most important parts of filing for bankruptcy protection is giving all creditors notice of the bankruptcy case. Once the bankruptcy attorney files the bankruptcy petition any and all collection activity must stop and the Bankruptcy Court is the sole place to seek remedy. So if all creditors do not receive notice or do not understand the notice that is a problem. Every bankruptcy filer wants their creditors to receive notice and stop the phone calls or harassing letters. You will also want the creditor to get the order of discharge in the mail so that they know once and for all the debt is no longer legally enforceable by federal court order.
How Do You Serve An Infant Or Incompetent Person?
First look to Federal Rule of Bankruptcy Procedure 1007(m). In 2001 FRBP was amended to add section “m.” FRBP 1007(m) provides: If the bankruptcy filer knows that a person on the list of creditors or schedules is an infant or incompetent person, the bankruptcy filer also shall include the name, address, and legal relationship of any person upon whom process would be served in an adversary proceeding against the infant or incompetent person in accordance with Rule 7004(b)(2). The point is to serve someone that knows the infant or incompetent person that can accept service on their behalf. Federal Rule of Bankruptcy Procedure 7004(b)(2) provides: (b) Service by First Class Mail. Except as provided in subdivision (h), in addition to the methods of service authorized by Rule 4(e)–(j) F.R.Civ.P., service may be made within the United States by first class mail postage prepaid as follows: (2) Upon an infant or an incompetent person, by mailing a copy of the summons and complaint to the person upon whom process is prescribed to be served by the law of the state in which service is made when an action is brought against such a defendant in the courts of general jurisdiction of that state. The summons and complaint in that case shall be addressed to the person required to be served at that person’s dwelling house or usual place of abode or at the place where the person regularly conducts a business or profession.
Basically for an infant you need to also include the name and address of the infant’s parents or legal guardian. The same is true for an incompetent person. Someone has to be taking care of or appointed as a conservator or guardian of the incompetent person. Whoever is taking care of them is the person upon whom process is prescribed to be served by the law of the state in which service is made when an action is brought against a defendant in the courts of general jurisdiction of that state.
By Ryan C. Wood
It is called the 341 hearing or meeting of the creditors. Section 341 of the Bankruptcy Code provides what is to take place at the meeting of the creditors, but Section 343 of the Bankruptcy Code is actually the section that is entitled “Examination of the Debtor” and provides the bankruptcy filer must appear for examination and provide testimony under oath.
At least a week before the meeting of the creditors your bankruptcy lawyer should provide the trustee’s office with at least your federal tax return. Some trustees require additional information depending upon the circumstances. Most trustees will also inform your bankruptcy attorney of the issues that need to be resolved before the trustee and recommend approval/confirmation of your Chapter 13 plan.
The meeting of the creditors is administered by the Chapter 13 trustee’s office. Either the actual Chapter 13 Trustee or his/her attorney will conduct the meeting. You will need valid identification and proof of your social security number for the meeting. The trustee must verify you are the person listed in the bankruptcy petition. For identification a valid driver’s license or passport will work and your social security card, an original W-2 or government document with your social security number on it will work to prove your social security number.
Once your identity is verified you will be sworn in and placed under penalty of perjury. Most of the time the standard questions are as follows: Do you review and sign the petition before it was filed? Did you list all of your assets? Did you list all of your debts? Did you list all of your income? Has there been any changes to your income since the case was filed? Is this your only source of income? How many consecutive years have you lived in California? Do you own any vehicles? If so, are your vehicles insured? Do you own any real property? If so, are the mortgage payments current or have you made your mortgage payments since the bankruptcy case was filed? Are the property taxes current? Is the real property insured? Have you stopped using all of your credit cards? Have you made a payment of $1,000 or more to any single entity in the last six months outside the normal course of business? Are there any changes to the petition that need to be made that you are aware of?
There are usually a few questions directly related to your circumstances too. By the time the meeting of the creditors you will have had to make at least one Chapter 13 Plan payment. They will then verify you either made the payment or not and let you know when the next payment is due. If everything is in order the trustee can let you know if they are recommending confirmation/approval of your Chapter 13 Plan. If there are any creditor objections to confirmation filed there may be a brief discussion about what needs to take place to resolve the objections. If there are no creditors that wish to be heard in the matter the meeting will be concluded. Creditors have the right to attend the meeting and ask you questions about the bankruptcy petition, your income, assets or ability to pay your debts. It is usually not worth the time and money for a creditor to pay an attorney to show up at the meeting of creditors and ask questions.
By Kitty J. Lin, Attorney at Law
One of the most frequently asked questions from our clients deal with the “meeting of creditors.” Most clients want to know what it is and what to expect from this meeting. Every person or business that files for bankruptcy relief is required to attend a meeting of creditors. The meeting of creditors is sometimes called the “341” meeting because it is required under Section 341 of the Bankruptcy Code. This meeting is presided over by the bankruptcy trustee assigned to administer the bankruptcy estate. In a Chapter 7 bankruptcy case in the Bay Area the meeting of the creditors will usually be scheduled 30-45 days after the petition for bankruptcy protection is filed by your bankruptcy lawyer with the Court. In a Chapter 13 bankruptcy it depends upon which jurisdiction the case is filed in, but the meeting of creditors is usually scheduled around 45-60 days after the case is filed.
The meeting of the creditors is the first opportunity for a creditor and the trustee to ask questions of the bankruptcy filer under oath and penalty of perjury. Contrary to its name, creditors rarely attend the meeting of the creditors to ask questions. In most bankruptcy cases there are no issues for creditors to investigate, so why take the time and expense to pay a bankruptcy lawyer to ask questions? Creditors or their attorneys usually only show up at the meeting of creditors if they believe there are grounds to object to the discharge of the money they are owed. There are various grounds under which a creditor can object to the discharge of their debt, but most involve some sort of fraud or improper conduct by the bankruptcy filer prior to filing their petition for bankruptcy protection. A creditor is limited in the time they have to ask questions. The trustee will usually give a creditor around ten minutes to ask questions.
The meeting of the creditors is not held in a courtroom or before the Bankruptcy Judge assigned to the case. The meeting of creditors is administered by the trustee assigned to the case. In a Chapter 7 bankruptcy case there is a Bankruptcy Information Sheet that each bankruptcy filer must read and understand prior to the meeting. It is recommended that you arrive early so that your attorney can discuss your case with you and basically touch on many of the items discussed in this article.
The trustee will call out the case number and the name of the bankruptcy filer. It is now time to step forward and complete the meeting of the creditors. The trustee will ask for your valid identification and proof of your social security number. If you do not have your social security card, a W-2 or 1099 will be acceptable. If you do not have these two things with you, the trustee will continue your meeting to another date until and give you another chance to have both forms of identification.
Most people are nervous prior to the meeting of creditors, but there usually is no need to be. YOU ALREADY KNOW ALL OF THE ANSWERS. Just tell the truth. Also, the only people in the room are other bankruptcy filers and their attorneys doing exactly the same thing you are doing. After you show your identification to the trustee, the trustee will then ask you 2 to 5 minutes worth of “yes” or “no” questions with some specific questions about your case. Some of the more general questions they ask are, “Did you review the petition before signing it? Did you personally sign the petition? Is everything true and correct? Did you list all of your assets and all of your debts? Are there any errors or omissions on the petition? Are you aware that if you receive an inheritance within 180 days of filing your bankruptcy petition, you are obligated to tell your attorney? Have you ever filed bankruptcy before?” After the trustee finishes asking questions, the trustee will then ask if there are any creditors present, if not, the meeting is concluded and you are done.