A: The trustee may request copies of the returns or transcripts and have the debtor testify under oath that the tax returns were filed with the appropriate taxing authority.

A: Section § 1308(a) requires only that a debtor file tax returns he/she was required to file “under applicable non-bankruptcy law.”

A: A trustee should object to a cram down if the case law requires such objections. The United States Trustee will not require the trustee to object to an attempted cram down unless, on its face, it violates the requirements of confirmation.

A: The question assumes that the chapter 13 trustee has standing to pursue an action against the debtor’s attorney. Unlike a chapter 7 trustee, the duties of a chapter 13 trustee do not include the requirement to collect and reduce to money the property of the estate for which such trustee serves. Moreover, property of the estate is vested in the debtor unless the confirmed plan provides otherwise. Accordingly, the chapter 13 trustee may not have standing to pursue an action against the prior attorney. Three lines of case law exist on the issue of whether a chapter 13 trustee has standing to sue. They are: (1) only the debtor has standing to sue, (2) the chapter 13 has concurrent jurisdiction with the debtor, and (3) the chapter 13 trustee has exclusive standing to sue. Assuming the trustee has standing, it is within the trustee’s discretion as to whether an action against the attorney is justified.

A: Unless requested, there may not be an order of dismissal issued in such a case, and it is the dismissal order that usually provides for the discharge of the trustee. Therefore, the trustee may want to request an order as provided by 11 U.S.C. § 521(i)(2).

A: The § 1328(f) bar to discharge is from filing date (the date the order of relief was entered) of the first case to the filing date of the second.

A: The chapter 7 trustee or the chapter 13 trustee must refer the matter to the United States Trustee who may file a motion to dismiss based on 11 U.S.C. § 109(h) and § 707(a).

A: The trustee should conduct and conclude the meeting, and refer the matter to the United States Trustee.

A: A credit counseling certificate must be issued by a provider that is approved for the district where the bankruptcy case is filed. The certificate is portable only if the provider is also approved in the district where the debtor files.

A: 11 U.S.C. § 1328(g) provides that a discharge is not to be entered if a debtor has not completed an instructional course concerning personal financial management.

A: No, the debtor must file the information using the appropriate Official Form.

A: Section 101(12A) defines a “debt relief agency” as “any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110.”  By definition, pro bono counsel do not receive, and do not expect to receive, payment of money from their clients in exchange for their services. The plain language of section 101(12A) states that a person must provide assistance “in return for the payment of money or other valuable consideration” in order to be considered a debt relief agency.  Therefore, the United States Trustee Program’s position is that attorneys who represent debtors pro bono do not qualify as debt relief agencies.  See, e.g., United States Trustee’s Response to Motion Pursuant to 11 U.S.C. §105 Finding that Debtor’s Attorney is not a Debt Relief Agency as that Term is Defined in 11 U.S.C. §101(12A) for Services Rendered in Connection with this Pro Bono Bankruptcy Case, In re Dow, Case no. 06-13460 (Bankr. N.D.N.Y. 2007) [PDF - 557 KB].

A: Although not specifically defined under the Bankruptcy Code, “valuable consideration” commonly involves a “pecuniarily beneficial interest.” Black’s Law Dictionary 326 (8th ed. 2004).  In addition, “consideration” is defined as “something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promisee” Black’s Law Dictionary 324 (8th ed. 2004).  A client that is represented pro bono does not have any control over the credit given by the state licensing authorities and such credit is not part of the agreement between the attorney and the client.  Similarly, the client has no control over whether the pro bono representation will result in recognition or good will within the community.  Therefore, the United States Trustee Program’s position is that such credit or recognition does not constitute “other valuable consideration” so as to qualify the attorney or the attorney’s law firm as a debt relief agency.  See, e.g., United States Trustee’s Response to Motion Pursuant to 11 U.S.C. §105 Finding that Debtor’s Attorney is not a Debt Relief Agency as that Term is Defined in 11 U.S.C. §101(12A) for Services Rendered in Connection with this Pro Bono Bankruptcy Case, In re Dow, Case no. 06-13460 (Bankr. N.D.N.Y. 2007) [PDF - 557 KB].
 

A: Pursuant to § 707(b)(4)(D), the signature of an attorney on a petition constitutes a certification that the attorney “has no knowledge after an inquiry that the information in the schedules filed with such petition is incorrect.” The section refers only to the schedules and not the Statement of Financial Affairs. However, the Statement of Financial Affairs may be considered as “any paper” filed with the court and could be subject to Rule 9011.

A: An “assisted person” is defined in 11 U.S.C. § 101(3) to mean “any person whose debts consist primarily of consumer debts and the value of whose nonexempt property is less than $150,000.” Under that definition, a person who owns a home valued at $200,000 and lives in a State with a $45,000 homestead exemption would not qualify as an “assisted person” since the value of the nonexempt property would be $155,000.

A: United States Trustees should not and will not pre-approve a debt relief agency’s advertising, contract, or disclosures.

A: The attorney certification included in 11 U.S.C. § 707(b)(4)(C) is substantially similar to the requirements of Fed. R. Bankr. P. 9011, which is substantially similar to Fed. R. Civ. P. 11. An attorney should look to those rules and the case law interpreting them for guidance.

A: Yes. For example, if a debtor files a case on March 1, 2006, and a 2005 return has been filed, the debtor will need to provide that return pursuant to § 521(e)(2). If, however, the 2005 return has not yet been filed, then the debtor will need to provide the 2004 return or the return of the next earlier year that was filed. If the most recently filed return is too dated to verify the debtor’s present income, then the trustee should request other documentation.

A: Chapter 13: If a chapter 13 debtor fails to file tax returns required under 11 U.S.C. § 1308, then, pursuant to § 1325(a)(9), the debtor’s plan cannot be confirmed. The chapter 13 trustee should monitor the filing of tax returns.

Chapter 7: Except for the most recently filed tax return which must be provided to the trustee under 11 U.S.C. § 521(e)(2), if a chapter 7 trustee does not specifically request copies of the unfiled pre-petition tax returns pursuant to § 521(f)(2), or seek them through discovery, the trustee has no obligation to take action regarding the filing of pre-petition tax returns.

With respect to post-petition tax returns, § 521(j) provides a taxing authority with the ability to request dismissal or conversion of the case for a debtor’s failure to file a tax return that becomes due after the commencement of the case. Though the trustee may also request the filing of post-petition tax returns under § 521(f), he/she is not required to do so. Nor is the trustee required to report the non-filing of post-petition tax returns to the United States Trustee.

A: A trustee is expected to require a debtor to provide tax returns as mandated by 11 U.S.C. § 521(e)(2), although a trustee does have discretion as to when to file a motion or take other action. A trustee should take action if the tax return is not produced before or at the § 341 meeting.

A: Whether a trustee continues the meeting of creditors or moves for dismissal for failure to provide the tax return as required by 11 U.S.C. § 521(e)(2) is within the discretion of the trustee. It is recommended that unless the debtor can show that the failure to comply is beyond his/her control, or unless a continuance is in the best interest of the estate, the trustee should move to dismiss or otherwise take effective action to obtain the return.

Pursuant to Fed. R. Bankr. P. 4004(a), a complaint objecting to discharge in a chapter 7 case must be filed no later than 60 days after the date first set for the § 341 meeting. If the trustee or United States Trustee believes that such a complaint is warranted, then a motion to extend the time to object to discharge should be filed.

A: To prevent automatic case dismissal when assets are available and it is in the best interest of creditors to go forward with a bankruptcy case, the trustee may move under 11 U.S.C. § 521(a)(1)(B) to have the court waive the filing of the mandatory documents.

A: No. The grounds for automatic dismissal set forth in 11 U.S.C. § 521(i) do not include failure of the debtor to attend the § 341 meeting.

A: Procedures for dismissal are determined locally. In many districts, dismissals will require no order, but in other districts an order will be entered. Some courts have indicated that a hearing will be noticed in each case. Regardless of the procedure employed in a district, the trustee should be aware of the action necessary to protect asset cases from being automatically dismissed.

A: No. 11 U.S.C. § 521(a)(1)(B)(iv) requires a debtor to file with the court copies of all payment advices received within 60 days of filing, and Interim Rule 4002(b)(2)(A) requires the debtor to bring “evidence of current income such as the most recent payment advice” to the § 341 meeting. A year-to-date payment advice that covers a six-month period is not sufficient.

A: Under the chapter 7 means test, charitable contributions are allowed to be continued as provided in § 707(b)(1), even though § 1325(b)(3) only refers to § 707(b)(2). Sections 707(b)(1) and 707(b)(2) are so entwined that it would be difficult to apply one of the sections without the other. Therefore, Form B22C at line 35 allows the deduction of “continued charitable contributions.” A trustee should allow charitable contributions to be deducted in determining disposable income in a chapter 13 case.

A: The administrative expense for administering a chapter 13 plan is determined by the United States Trustee Program. It differs by judicial district and the appropriate percentages are posted on the Program’s Internet site at www.usdoj.gov/ust/.

A: If a trustee or the United States Trustee does not believe that he/she can accurately confirm income from the information that the debtor is required to provide, then he/she should request appropriate additional information as deemed necessary, such as territory or commonwealth tax returns. Since the Code does not expressly require the production of these documents, the trustee or the United States Trustee may need to seek production through discovery.

A: If a DSO claimant’s address does not appear in the bankruptcy schedules and it is still unknown after the trustee’s inquiry at the § 341 meeting, the trustee does not have to send the notice to the DSO claimant. However, if the claimant’s State of residence is known, then the trustee should send the notice to the State agency.

A: 11 U.S.C. §§ 704(c)(1)(C) and 1302(d)(1)(C) provide that a DSO notice is to be sent “at such time as the debtor is granted a discharge.” Accordingly, the discharge notice must be given by the trustee after the discharge is granted. The trustee can determine from the docket the names of creditors asserting § 523(a)(2), (4), or (14A) claims or whose debt was reaffirmed under § 524(c). To the extent an applicable § 523 discharge action has not been resolved, the trustee should proceed to send the discharge notice and include the name of the creditor, with a notation that an action to determine the dischargeability of the creditor’s claim is pending.

A: The definition of domestic support obligations in 11 U.S.C. § 101(14A) includes obligations other than child support, so it is possible to have a DSO without a child support obligation. The obligation of a trustee under both § 704 and § 1302 is to provide notice to the holder of the claim advising “of such claim and of the right of such holder to use the services of the State child support enforcement agency established under sections 464 and 466 of the Social Security Act for the State in which such holder resides, for assistance in collecting child support.” Accordingly, the notice is required regardless of whether a child support obligation exists.

A: Notice to the State child support enforcement agency must be sent by United States mail consistent with Fed. R. Bankr. P. 2002(b),(f), and (h).

A: The chapter 13 trustee is responsible for monitoring DSO issues and for taking appropriate action when a debtor fails to meet DSO obligations.

A: No. The address and contact information of the State child support enforcement agency must appear on the notice.

A: Sample DSO notices have been provided to the U.S. Trustee Program’s field offices for dissemination to trustees. They are also posted on the Program’s Web site.

A: No. Two separate notices are required – an initial notice and a discharge notice.

A: Yes. A chapter 13 plan may provide for less than full payment of a DSO if the plan is for a term of five years, all of the debtor’s projected disposable income is applied to make payments under the plan, and the claim has been assigned to a governmental unit for collection.

A: Because of privacy concerns, a trustee should not file DSO notices or certifications of notice with the court. If the court requires filing of the notices or certifications, the trustee should redact all privacy sensitive data.

A: No. Since only certain creditors are to be listed, the trustee must review the docket, identify the applicable creditors, and specifically set forth their names in the discharge notice.

A: The discharge notice should be sent by U.S. mail within a reasonable period of time following the granting of the debtor’s discharge.

A: 11 U.S.C. § 704(c)(1)(C) and 1302(d)(1)(C) require a trustee to send the discharge notice to both the DSO claimant and the State child support enforcement agency “at such time as the debtor is granted a discharge.” If the case is closed without the granting of a discharge because of the debtor’s failure to comply with the debtor education requirement, but the debtor subsequently complies and files the appropriate motion to have the case reopened so that a discharge can be entered, any order reopening the case should direct the United States Trustee to appoint a chapter 7 trustee so the proper DSO notice can be given.

A: The Bankruptcy Code provides that notices go only the to the “State child support enforcement agency” where the holder of the domestic support obligation resides. Tribal nations are not included in the definition of “State” in the Bankruptcy Code. See 11 U.S.C. § 101(52).

A: The term “health care business” is defined in 11 U.S.C. § 101(27)(A) as a public or private entity primarily engaged in offering to the general public services for the diagnosis or treatment of injury, deformity, or disease, and includes any general or specialized hospital; ancillary ambulatory, emergency, or surgical treatment facility; hospice; home health agency; and other similar health institutions. Although dispensing drugs might be considered the “treatment of injury, deformity, or disease,” a pharmacy is not a health institution similar to the ones listed in the statute.

A: The term “patient records” is defined in 11 U.S.C. § 101(40B) and means “any written document relating to a patient or a record recorded in magnetic, optical, or other form of electronic medium.” Given this broad definition, the term would include billing records.

A: If the health care facility is in the process of closing at the time the chapter 7 case is filed, then pursuant to 11 U.S.C. § 704(a)(12) the trustee, in both asset and no-asset cases, must “use all reasonable and best efforts” to transfer patients to another health care business in the vicinity that provides patients with similar services and a reasonable quality of care. Trustees are encouraged to work with the State agency with regulatory authority over the facility to assist with patient transfer. The trustee must obtain an operating order before any patient transfer is accomplished.

Patient records must either be stored by the trustee or, if insufficient estate funds are available, disposed of by following the requirements set forth in § 351. Section 351 procedures requires the trustee to: (i) publish notice that if the patient records are not claimed within 365 days from the date of the notice they will be destroyed; (ii) attempt to notify patients and insurance carriers directly concerning the patient records; and (iii) to the extent the records are not claimed within the 365-day period, mail by certified mail a written request to each appropriate Federal agency seeking permission to deposit the patient records with that agency, which the Federal agency is not required to accept. Any unclaimed patient records that have not been deposited with a Federal agency can then be destroyed in accordance with § 351(3).

A: A trustee should rely on the most current clerk’s mailing matrix for the addresses of creditors.

A: Privacy protected information, such as Social Security numbers, should be redacted from documents used at an evidentiary hearing, unless the debtor agrees in writing to the use of the unredacted document or the privacy information is a necessary part of the proof.

A: The language of § 541(b)(7)(A) clearly refers to only those amounts withheld from an employee’s wages; however, § 541(b)(7)(B) refers to those amounts “received by an employer from employees for payment of contributions.” Subsection (B) appears to address the “direct pay” situation. Accordingly, those contributions paid to an employer (and not simply withheld) do not constitute property of the estate. In addition, they should not be included in disposable income for purposes of 11 U.S.C. § 1325(b)(2).

A: Both patient care and consumer privacy ombudsmen must be disinterested persons, who are not the United States Trustee. If the debtor is a long-term health care facility, the United States Trustee may appoint the State Long-Term Care Ombudsman appointed under the Older Americans Act of 1965.

Ombudsmen are paid like any other professional. Pursuant to 11 U.S.C. § 330, ombudsmen can be paid reasonable compensation for actual, necessary services rendered and reimbursed for actual, necessary expenses.

A: Whenever there is a sale of “personally identifiable information” under § 363(b)(1)(B) the court must direct the United States Trustee to appoint a consumer privacy ombudsman if the sale is not consistent with the debtor’s pre-bankruptcy privacy policy. The appointment must be made not later than five days before the commencement of the hearing on the sale.

A: If qualified, a panel trustee may serve as an ombudsman.

A: Before the BAPCPA, some chapter 7 trustees recovered balance transfers or large lump sum payments on credit card debt because, although such payments might be common in the industry, they were not common between the particular debtor and the creditor. As a result, the “ordinary course” exception did not apply. With the change in § 547(c)(2), the ability to recover these payments may be limited.

A: 11 U.S.C. § 330(a)(7) provides that the trustee fee is to be “treated as a commission.” Absent extraordinary factors, the United States Trustee will not object to a trustee receiving full commission on all “moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor, but including holders of secured claims.” Extraordinary factors are expected to arise only in rare and unusual circumstances and include situations such as where the trustee’s case administration falls below acceptable standards, or where it appears a trustee has delegated a substantial portion of his duties to an attorney or other professional.

A: Payment of the $60 per case statutory fee is a matter over which the Program has no authority. The Administrative Office of the United States Courts has issued a memorandum that trustees will not be paid the $60 fee in in forma pauperis cases.

A: United States Trustees will not require a trustee to provide time records to support trustee compensation with regard to cases filed after October 17, 2005. It may, however, be prudent for a trustee to keep time records to address objections raised by other parties or to satisfy requirements of the court.

A: The Code has not changed with respect to a chapter 7 trustee’s right to compensation when a case converts to chapter 13. However, case law is split on this issue. When a chapter 7 trustee is entitled to compensation for a conversion or dismissal of the debtor’s prior case pursuant to 11 U.S.C. § 707(b), and some portion of that compensation has not been paid, the chapter 7 trustee is entitled to payment (as set forth in § 1326(b)(3)(B)) under the plan. Pursuant to § 1326(d), such compensation is payable even if the debt was discharged in a prior case.