By Robert S. Thomas, II,1 Chapter 13 Standing Trustee for the District of Maryland (Baltimore)
All stakeholders strive to make the Chapter 13 program efficient and beneficial to all parties. The Chapter 13 program has evolved over the years to better serve debtors and creditors. This is due in part because of the remarkable actions taken daily by our Bankruptcy Judges, Clerk of Courts, Chapter 13 Trustees, the United States Trustee office, attorneys representing debtors and creditors and the individuals seeking relief under Chapter 13.
We rarely read or hear about the positive impact the Chapter 13 trustee program has on individual debtors and creditors. Is it because there is no numerical computation that will substantiate these efforts or is it because we do such a great job that outsiders are blind to the impact the Chapter 13 trustee program has in our bankruptcy system? Do they just assume we just disburse money?
The Chapter 13 program is undervalued as the many beneficial services and the significant contributions that are provided to our entire bankruptcy system is overshadowed by statistics, state to state difference in exemptions and non-bankruptcy governmental policies having adverse effects on individuals.2 The Chapter 13 program provides, efficient oversight and proven case administration that benefits debtors, creditors, and the Bankruptcy Court. Mary Ida Townson, former NACTT president, provides an excellent perspective on the responsibilities of Chapter 13 Trustees as bearing, “immense obligations to everyone in the bankruptcy community, including but not limited to the debtors, the creditors, the Bankruptcy Judges, the Bankruptcy Clerks, as well as to the Executive Office of the United States Trustee.”3
Chapter 13 has evolved to help individuals and families compassionately navigate through these tough financial times. During the pandemic, the Chapter 13 Trustees have continued to operate and evolve to provide efficient protocols, hearing management and the highest level of service to all stakeholders. In accordance with our statutory duties, Chapter 13 offices stayed open and took the lead with the bankruptcy courts in communication, sharing information and assisted in the smooth transmission to remote hearings. The work was insurmountable (60+hr, work weeks) but we all did it and case administration continued that benefited the courts, debtors and creditors.
A. STATUTORY DUTIES OF A STANDING TRUSTEE
The Bankruptcy Reform Act of 1978 removed the bankruptcy judge from the responsibilities for day-to-day administration of cases. Under the direction of the United States Trustees Office Chapter 13 Trustees have a fiduciary responsibility to the bankruptcy estate. The trust operation and duties are all encompassing and significant to ensure transparency and accurate receipts and disbursement of estate property. Our primary statutory duties are set forth in 11 U.S.C. § 1302, which incorporates by reference some of the duties of Chapter 7 trustees found in 11 U.S.C. § 704. These duties include, but are not limited to, the following:
Be accountable for all property received [§ 704(a)(2)]; 2. Investigate the financial affairs of the debtor [§ 704(a)(4)]; 3. If a purpose would be served, examine proofs of claims and object to the allowance of any claim that is improper [§ 704(a)(5)]; 4. If advisable, oppose the discharge of the debtor [§ 704(a)(6)]; 5. Unless the court orders otherwise, furnish such information concerning the estate and the estate’s administration as is requested by a party in interest [§ 704(a)(7)]; 6. Make a final report and file a final account of the administration of the estate with the United States Trustee and the court [§ 704(a)(9)]; 7. Appear and be heard at any hearing that concerns: a. the value of property subject to a lien [§ 1302(b)(2)(A)]; b. confirmation of a plan [§ 1302(b)(2)(B)]; or c. modification of the plan after confirmation [§ 1302(b)(2)(C)]; 8. Advise, other than on legal matters, and assist the debtor in performance under the plan [§ 1302(b)(4)]; 9. Ensure that the debtor commences making timely payments under § 1326 of this title [§ 1302(b)(5)]; 10. If there is a claim for domestic support obligation (DSO), provide the applicable notice to the holder of the claim and appropriate State child support enforcement agency, as set forth in § 1302(d) [§ 1302(b)(6)];4 and,
If the debtor is engaged in business: a. investigates the acts, conduct, assets, liabilities, and financial condition of the debtor, the operation of the debtor’s business and the desirability of the continuance of such business, and any other matter relevant to the case or to the formulation of a plan [§ 1106(a)(3)]; and b. once the investigation is completed, file a statement of the investigation [§ 1106(a)(4)(A), § 1302(c)].5
Our statutory duties are defined by the United States Trustees Office in the Handbook for Chapter 13 Trustees. The Handbook sets forth and requires the administration of Chapter 13 cases. This segment of our duties involves the initial case review of each case that this filed. This is accomplished by reviewing the bankruptcy schedules, exemptions, eligibility, prior filings, a review of attorney and bankruptcy petition preparer fees and disclosure statements and the chapter 13 plan and required 11 U.S.C. section 521 documentation. Trustees prepare for and conduct the meeting creditors. Our review of the Chapter 13 plan requires running a liquidation analysis, the disposable income test, and a feasibility test. All claims are reviewed for validity and treatment in the proposed Chapter 13 plan. Prior to the confirmation hearing, we will have made our review and reported the same to counsel for the Debtor and any objecting creditor. We provide docket information for all parties and we appear at the confirmation hearing. Chapter 13 Trustees will provide their review of the plan and will provide to the Bankruptcy Court their recommendation as to the confirmation of the individuals Chapter 13 plan. In some cases, we are required to review a debtor’s business which requires a report on a business case and periodic monitoring of the business. We also review possible avoidance actions and prosecute them if the case so requires. Our duties also require that we review and submit criminal and civil referrals to the United States Trustee office. As the case nears completion, we perform a case audit, a case closing process, which entails preparing a “notice of final cure”, “notice of plan completion” and a final report.
But that’s not all, our statutory duties require a review and preparation of monthly receipts and disbursements. Trustees disburse payments to claimants every month out of the trust operation. Our offices of dedicated staff assist in the trust operation by reviewing claims, running monthly reports, preparing cases for hearings, preparing dockets, pleadings and required notices and reporting requirements to the United States Trustee’s office. As Trustees we are required to prepare and submit an annual budget to the United States Trustee office and monthly reports of the trust operation.
Our statutory duties provide significant operations, security and reporting that enlist the trust of all stakeholders. The operation is quite remarkable and highlights the high level of public service we provide to the bankruptcy community. Service that is proven, trusted and relied upon by the Bankruptcy Court, debtors and creditors. Chapter 13 Trustees appropriately ensure that all debtors and creditors receive fair and unbiased treatment in the administration of cases. We are fair, reasonable, and we understand that “life” happens. This oversight function should not be dismissed or disparaged because of the intermediate role we play in assisting debtors and creditors in the administration of cases. We are often times the glue that makes a case move forward, get confirmed and completed.
Chapter 13 Trustees play an invaluable role in the confirmation process. First, we provide a review of the plan to make sure it is in compliance with the applicable code provisions (we provide this information to attorneys and debtors in advance of the scheduled confirmation hearing). Second, we provide case analysis as to funding, feasibility and chapter 7 value. Third, we provide an independent review and recommendations to debtors, creditors and the Bankruptcy Court. Fourth, we provide fiduciary responsibilities that debtors and creditors will rely on in case administration, which provides a level of assurance and confidence to all parties.
These functions are critical in a reorganization process because the role we play provides assurance and accountability that the Bankruptcy Court, debtors and creditors rely upon. Nobody sees the internal operation behind the scenes in moving a case to confirmation. We provide guidance to parties under our statutory fiduciary duties, claim reviews, claim treatment review, hearing management, Chapter 13 plan analysis, the necessary pleadings and orders for the parties, and our sound independent case recommendation.
Imagine under a new system, with no Chapter 13 Trustee oversight, a pro-se debtor trying to confirm a plan over a secured creditor objection with the backdrop of a poor pre-petition pay history. How good do you think that confirmation hearing is going to go? Who is going to independently guide this individual and the parties to work out a solution or an amended plan that will lead to successful reorganization? Imagine the delay, the long dockets with cases stalling, the extended time at confirmation hearings and further delays and circulation times waiting for a proper amended plan to be filed.
CLEARLY, this will not be an efficient process. You can imagine the train wreck in the implementation –clearly everyone would agree that the $25.006 dollar allocated trustee fee per month is a bargain given all statutory and undocumented services Chapter 13 Trustees provide.7
A. SUCCESS RATES IN CHAPTER 13
There is a basic misconception about the success rate of Chapter 13 cases. Every article we read or headline states “only 1/3 or 33 percent of cases complete to discharge.”8 (That is not 100% accurate, see below). Defining success in Chapter 13 requires much more analysis and debate than it has heretofore received. It goes without saying that our Bankruptcy Judges care about ensuring that every individual and entity that comes before the Court is treated with the highest levels of compassion, respect, and fair treatment. It correlates to the many individuals who are given the opportunity (some more than a few times) to make their Chapter 13 plans successful. Even if a case may unfortunately get dismissed or a plan denied confirmation the efforts by our Judges, Trustees, and attorneys to ensure every possible consideration or resolution was attempted. It has an unmeasurable positive impact felt by many who come before our Court. We cannot define “success” in a vacuum for every Chapter 13 case as each case was filed for a particular reason, affect or purpose. Some have seen that as a negative, when in reality, not every individual needs a discharge and case law supports that position. One must wonder that if you moved the discharge to confirmation, then plan completion is no longer significant?
Judge Brian Lynch, writing for the NACTT Academy in 2016, suggested “the best measure of success in chapter 13 is the rate of cases that complete to discharge. But the measure should not be the overall completion rate for all cases filed, but the rate of completion of cases which have a confirmed plan of reorganization.”9 By limiting the discharge measurement to only the cases with a confirmed plan of reorganization, the success rates of Chapter 13 are not unjustly reduced by unscrupulous filers, filers with the inability to fund plans, and those cases that are converted prior to confirmation. As we all know, many cases get filed but do not even make it to a 341 meeting. As far as I know – no filing is rejected or turned away. This is common by pro-se debtors as they get bad advice. To count these cases for statistical purposes to evaluate “success” serves no valid purpose. Further, debtors have a voluntary right (subject to interpretation) to move to dismiss their case at any time.10 So, the “1/3 or 33%” number we see in articles or headlines is really a “rigged number.” In the end it serves no purpose to compare Chapter 7 proceedings to Chapter 13 proceedings as they are specific and separate insolvency proceedings.
The NACTT Data Analytics Committee surveyed Chapter 13 trustees and analyzed completion data provided for cases filed between January 1, 2013 and December 31, 2013. Based on the information provided by those that responded and a sample size of 124,576 cases, the case completion rate for confirmed Chapter 13 plans averaged 70%. The overall completion rate, including those cases without confirmed plans, reached 58%.11
As a local example, since I started on October 1, 2016, our office has increased confirmations covering the past 5 years: 2015/16 -671, 2016/17 – 900, 2017/18 – 960, 2018/19 – 1133 and 2019/20 – 1090 (during the pandemic not final). Because of the efforts by all stakeholders, we have successfully increased confirmation rates each year. For those keeping track our plan completion rate is 59%. Our customer service and satisfaction rating are 100% from attorneys, creditors and debtors.12
Success can also be substantiated by what Trustees distribute out on an annual basis through our trust operation and fiduciary duties that all stakeholders expect and rely on for payment receipts, reporting, transparency, and disbursements. This is done in an efficient, transparent manner at a very reasonable average percentage fee of 7.2 percent, which is well below the statutory 10 percent fee. For Fiscal Year 2019, nationally Chapter 13 trustees returned $1,443,824,011.00 to non-mortgage secured creditors.13 Additionally, trustees enabled Debtors to cure $495,452,049. in mortgage arrears.14 Further, trustees provided returns of $315,328,644.00 to unsecured priority creditors, while unsecured non-priority creditors enjoyed returns of $1,141,615,266.15 Further still, Chapter 13 trustees disbursed another $593,243,563.00 nationally in fees to debtors’ counsel.16 Individual debtor and creditors rely on our trust operation system for receipts and disbursements each month.
For a bankruptcy system to be balanced and fair, creditors must know that they have a voice, and their concerns are addressed. Creditors understand and rely on the Chapter 13 claim process and disbursements from Chapter 13 Trustees. They are acclimated to the system, and they appreciate the access to reports and communication with our offices.
Former NACTT president, Mary Ida Townson highlighted the fact that while debtors certainly benefit from the Chapter 13 system, they are not the lone recipients of bankruptcy’s largess:
We are helping [debtors] pay back taxes, pay back child support, pay their student loans, and pay their hospital bills, just to name a few categories. On the other side of the equation, we are enabling the recipients of these payments to continue to prosper in their businesses, continue to feed and clothe their children in the case of child support payments, and to make our economy work better.17
B. THE BENEFITS OF CHAPTER 13
The Chapter 13 program provides fiduciary oversight, transparency, and accountability in the administration of Chapter 13 cases. Debtors and creditors can access the National Data Center, an integral service partner to the Chapter 13 Program. Debtors and creditors are provided simple navigation tools to monitor receipts and disbursements and plan treatment, at no charge. Twice a year we send out detailed informational reports to debtors and attorneys. We also send out reports when they are requested by debtors or creditors in a timely manner. We provide phone or email information to the over 50(+) calls and hundreds of emails we receive per day.
Chapter 13 Trustees are fiduciaries and our trust operation employs dedicated staff which help us perform vital functions at the highest level of performance. The benefits go unnoticed by outsiders. That is an unfortunate and uniformed mistake. The many vital and beneficial services the Chapter 13 trustee program provides to consumers and creditors are provided through a transparent, proven and at a very reasonable fee, (well below the statutory or market fee). It should not be ignored or marginalized. Chapter 13 Trustees and our trust operation provide a public service at a high level that directly benefits individuals, creditors, and the Bankruptcy Court.
We never hear about the many positive and beneficial programs developed by Bankruptcy Judges and Courts with the Trustees participation to make them successful. There is not a 1-800 number for debtors, attorneys, or creditors to call to provide fiduciary responsibilities, guidance, support, creative ideas, mediation, reports, case review, docket management or even just a real person to talk with about their situation. WE provide that fiduciary service. MYSELF & MY OFFICE STAFF provides that service 24/7, (we do not shut down at 5, close for the summer, take a week off). That is but one example of the public service we provide. Chapter 13 Trustees across the country provide this unmatched service and dedication. There are amazing Chapter 13 Trustees and Bankruptcy Judges doing extraordinary and innovative programs or procedures within our bankruptcy system everyday – what does it take to get a positive article or headline of the positive impact they are making within and outside of our bankruptcy system?
Debtors are provided many beneficial options to make their plan payments: payments can be made electronically, in person (no cash), via mail, or via a wage order.18 All of the Chapter 13 Trustees’ provide contact information and a secure portal to upload documents. Trustees send out case reports to all debtors twice a year and to their attorneys. Most importantly the Chapter 13 Trustees’ provide oversight and accounting in the administration of cases. As fiduciaries the Trustee’s maintain a high-level accounting practices for payment receipts and disbursement to creditors. Don’t be fooled – it’s not easy upholding our statutory fiduciary duties. Every day the trust operation performs all of our statutory and fiduciary duties. Cases can have hundreds of claims, complex plan provisions, amended or modified plans, sales of property, property losses, deaths, employment transfers, claims amendments, transfer of claims, daily reporting, auditing, phone calls, emails, mail – just to name few and it never stops. We provide the oversight if a debtor has problems with payments, needs to amend or modify a plan or if the creditor moves, sends payments back or if a check goes stale.
In the scope of our fiduciary responsibilities, we are bonded and insured and have a 3rd party audit every year. We attend and provide yearly seminars to enhance our knowledge and provide information to attorneys, creditors, and the Bankruptcy Courts. Chapter 13 Trustees routinely assists debtors and creditors in the formulation of plans by recommending plan provisions or solutions that can help a case successfully get to confirmation and plan completion.19 Chapter 13 Trustees’ routinely object to claims if a purpose would be served and monitor claims and claims amendments notifying parties of the claim and plan treatment. We also provide a “Notice of Final Cure” to secured parties who were paid arrearages inside of the plan, providing debtors and secured creditors notice that the debtors have successfully paid the arrearages inside the plan. We review responses to this notice and monitor payment changes and notices of additional fees filed by secured lenders.
Chapter 13 is also evolving and taking on new programs and initiatives as recommended by the American Bankruptcy Institute’s Consumer Commission. The Consumer Commission spent over two years formulating recommendations and improvements to our current bankruptcy system. The Commission was made up of a diverse group of bankruptcy professionals across a broad spectrum of the stakeholders who are actively involved in insolvency proceedings. The final report is a properly vetted, report of sound recommendations and improvements to our current bankruptcy system. One in particular that can benefit individuals is “Savings Plans” in which debtors would be able to have a set savings amount held by the Chapter 13 Trustee to handle emergencies and unexpected expenses to help improve plan completion.20 Nationally some jurisdictions have implemented beneficial mortgage modification mediation programs and student loan mediation programs. Many may not know but Chapter 13 Trustees provide additional services, for example: they provide Debtor Education Programs; they are actively involved in committees or working groups within the courts, they provide informational pamphlets or folders, they provide helpful information on websites; community outreach; and internship programs to students.
Cases get filed, they get confirmed and they complete. From start to finish it all happens because of the fiduciary responsibilities of each Chapter 13 Trustee, their dedicated staff, and our Bankruptcy Courts. Chapter 13 of Bankruptcy Code has worked successfully for many years, it has a proven track record, documented and transparent fiduciary procedures and it will continue to be a workable and successful insolvency proceeding.
I do not need statistics or accolades, I am happy to know that every day, our offices provide the highest-level fiduciary services to all stakeholders. I used to represent clients in all insolvency proceedings and I was a 7 Trustee. I pursued a chapter 13 position because I recognized the vital and important role Chapter 13 Trustees play in our bankruptcy system. A public service role that provides fiduciary oversight and proven case administration that allows individual debtors and creditors to achieve success in our Bankruptcy Courts. We provide that 1-800 number to the bankruptcy community. Chapter 13 Trustees and our staff return the phone calls, respond to the emails, provide updates on cases to parties, account for receipts and disburse funds every month, send out reports, manage dockets with over 100 cases, help resolve/mediate disputes between parties, and make informed and sound recommendations to the Bankruptcy Court.
Many outstanding Chapter 13 Trustees and Bankruptcy Judges have laid the foundation of our current Chapter 13 system, there have been amendments to the Bankruptcy Code, changes to the United States Trustees Office, Chapter 13 program. The names may have changed but the mission and purpose to assist individual debtors and creditors in a consumer reorganization has evolved to further enhance and benefit all stakeholders under the fiduciary oversight of Chapter 13 Trustees.
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[1] The statements and opinions expressed in the article do not represent an official statement, or statement in an official capacity as a Chapter 13 Trustee, and they do not represent any official NACTT statement or the United States Trustees Office. Nothing should be construed, interpreted, as a statement in any official capacity.
[2] See 11 USC Section 523 (a) (7): Many articles or headlines attribute Chapter 13 or attorneys for a higher rate of African Americans, filing Chapter 13 in certain parts of the country. Many articles or headlines don not seem to address the underlying non-bankruptcy policies and the non-dischargeability under section 523(a)(7) in chapter 7. We should be focusing on looking at the demographics, state collection and exemption laws, non-bankruptcy policies that adversely affect African Americans and how Chapter 13 has been used to fix these problems. See Edward R. Morrison, Belisa Pang, & Antoine Uettwiller, Race and Bankruptcy: Explaining Racial Disparities in Consumer Bankruptcy (Columbia Law & Econ. Working Paper), https://ssrn.com/abstract=3137112. From the Abstract: Prior scholarship blames racial discrimination by bankruptcy attorneys. We present an alternative explanation: Chapter 13 offers benefits, including retention of assets such as cars and driver’s licenses, that are more valuable to African American debtors because they have relatively long commutes. We take advantage of a 2011 policy in Chicago, which suspended driver’s licenses of consumers with large traffic related debts. The policy produced a large increase in Chapter 13 filings, especially by African Americans. Two mechanisms explain the disparate racial impact: African Americans were more likely to have traffic-related debts and they incurred greater costs from license suspension due to their relatively long commutes. See Edward R. Morrison, Antoine Uettwiller, Consumer Bankruptcy Pathologies (Columbia Law & Econ. Working Paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2845497. This paper questions several longstanding descriptions of consumer bankruptcy in the United States. We focus on Chapter 13, which discharges debts after consumers pay disposable income to creditors for up to five years. Many studies document pathologies, including high failure rates, racial disparities, low creditor recoveries, and attorney biases. We observe the same patterns in new data drawn from Cook County, Illinois, but show that these pathologies are central tendencies that ignore substantial heterogeneity across consumers. Several are driven by subsets of consumers; some disappear once we account for account for consumer heterogeneity. We present new evidence that some pathologies reflect biases in non-bankruptcy law, not in the bankruptcy process itself.
[3] Mary Ida Townson, President’s Message, 28 NACTT Q. 4, July/Aug./Sept. 2016, at 4.
[4] 11 U.S.C. § 704, 1302.
[5] Id.
[6] This is just an example of an average allocated trustee fee spread out over all confirmed cases.
[7] This example is based on the proposed legislation -the “Consumer Bankruptcy Reform Act of 2020” Based on current experience; you can expect no difference in the process even if the debtor had counsel.
[8] Note there are too many articles to list because most just cut and paste from a prior article.
[9] Brian D. Lynch, Measuring Success in Chapter 13, CONSIDER CHAPTER 13 (June 5, 2016), https://considerchapter13.org/2016/06/05/measuring-success-in-chapter-13/.
[10] 11 U.S.C §1307.
[11] NACTT Data Analytics, survey result
[12] Robert S. Thomas, II Chapter 13 Trustee independent random survey of debtors, creditors and attorneys.
[13] U.S. TR. PROGRAM, U.S. DEP’T JUST., CHAPTER 13 STANDING TRUSTEE FY19 AUDITED ANNUAL REPORTS (2020) https://www.justice.gov/ust/file/ch13ar18-aarpt.xlsx/download.
[14] Id.
[15] Id.
[16] Id.
[17] Mary Ida Townson, President’s Message, 28 NACTT Q. 4, July/Aug./Sept. 2016, at 4.
[18] I have always known, but for those that do not, the pandemic has revealed not everyone in the United States is ready for bankruptcy via an APP or Cell phone or has internet access. Not everyone has a smart phone or Zoom, a bank account or the means to make electronic payments. Filing bankruptcy is a serious financial decision that requires full disclosure of assets, liabilities, income & expenses, and financial history. Documentation and verification are required to substantiate the information available on the bankruptcy schedules and statement of financial affairs. There are serious consequences that can occur in case, including but not limited to, a case being dismissed, a discharge denied or revoked, denial and revocation of plan, and criminal and civil enforcement for nondisclosure of information material to the bankruptcy filing. The integrity of our bankruptcy system requires that the process of preparing the case for filing and the process should not be eroded or side-stepped to achieve a simpler and easier process.
[19] We do not provide legal advice; however, we can suggest clear, concise, and transparent language, examples of plans with similar situations or suggestions to amend the plan to be in compliance with 11 U.S.C. § 1325.
[20] The U.S. Bankruptcy Court for the Southern District of Texas has implemented a savings program, available at www.txs.uscourts.gov/bankruptcy/bankruptcy -forms-filing-fees. See also David R. Jones, “Savings: The Missing Element in Chapter 13 Bankruptcy Cases,” Duke University Law School (March 201). This is an excellent article.
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Robert S. Thomas, II currently serves as a Chapter 12 and Chapter 13 Bankruptcy Trustee in Baltimore, Maryland. His term began on October 1, 2016. Mr. Thomas currently is an adjunct professor at The American University, Washington College Law, teaching a course in Consumer Bankruptcy and Secured Transactions. He was previously the Managing Partner of Thomas, Trattner, & Malone, LLC in Akron, Ohio – specializing in bankruptcy and commercial law. Mr. Thomas served as a Panel Chapter 7 Trustee in Akron, Ohio from 2003-16. In addition to his work as a Chapter 7 Trustee, Mr. Thomas represented clients in Chapter 7, Chapter 13, and Chapter 11 bankruptcy proceedings. Mr. Thomas has served as an adjunct professor at The University of Akron School of Law from 2006 to 2016, teaching the Bankruptcy and Creditors’ Rights course.
He received his B.A. Degree (Cum Laude and with Distinction) from George Mason University, Fairfax, Virginia in 1992, and his J.D. Degree in 1996 from The American University, Washington College of Law, Washington, D.C. Attorney Thomas is admitted to the Ohio Bar, Federal District Court and the United States Court of Appeals Sixth Circuit.
Mr. Thomas is frequent lecturer and presenter at many local and national seminars.
