By Helen M. Morris, Chapter 13 Trustee for the Northern and Southern Districts of West Virginia
Treat the trustee’s staff with respect. They know what they are doing. If they tell you that they can’t give you certain information over the phone, they are following office policy and procedures. You may be able to find the information you are seeking at National Data Center (NDC) or the website provided by the trustee.
Help yourself. Throwing together something just to get it filed doesn’t progress the case—whether it’s sloppy schedules, a plan that won’t work, an incomplete proof of claim, or an inaccurate motion for stay relief. You may have met a deadline, but you’ve created more work for yourself since sloppy work delays confirmation, generates objections and counter-pleadings, and hearings.
Investigate. As debtor’s counsel, BAPCPA requires more knowledge by you of the personal circumstances of your clients. You can’t simply rely on what the debtor/client told you. A couple with two children under 5 years of age, shouldn’t have a cell phone bill in excess of $450.00. Apply common-sense when you review schedules. If you are creditor’s counsel and are forwarded information for a motion for stay relief, look at more than what your client sent you. Both debtor and creditor counsel should check out the plan. If it provides that the trustee is to make the payments on a secured claim, check it out via NDC or the trustee’s site to see if payments have been made. Some creditors seem to have a difficult time applying payments. Better to deal with the condescension of the creditor’s employee than explain to the Judge in open court why you didn’t check out the trustee’s payments.
Review the documents you are required to provide/file. Compare it to the information you put in the schedules, plan and Statement of Financial Affairs. The car value should be the same on the schedules and the plan. Tax returns frequently show greater income or show omitted sources of income than what is listed on the schedules. Trustees actually look at the returns. So should you.
Tax returns are due 7 days prior to the meeting of creditors. This should not be a surprise. BAPCPA went into effect in 2006. It’s not “new law.”
Evaluate the case. Not everyone, as much as it pains me to write this, can perform in a Chapter 13 case. Nor, sad to say, does everyone who qualifies for a Chapter 13 want to be there. As a trustee, I want to see more filings, but not more non-productive cases.
Enlist the aid of a calculator. Trustees use base 10 for our numerical calculations. Many plans appear to use another numerical system.
No shifting responsibilities. Some things are part of the representation of the debtors. The trustee cannot represent the debtors. The trustee is required to assist the debtor in completing the plan—not replace counsel. The trustee is specifically prohibited from giving legal advice to any party, including creditors.
- The plan as you fill it out;
- The pleadings which are filed;
- The pleadings you file and the orders you write. The relief set forth in the order you draft should match what the Court granted in a hearing, or, if a default order, what was sought in the motion/objection.
Understand what can and can’t be done in your client’s case. Filing plans/pleadings which seek to accomplish something that is prohibited by the Code makes you appear to be gaming the system, playing “catch me if you can” with the trustee, opposing counsel, and the Court. You may slip a few past everyone, but if it appears to be a pattern, the trustee, at least, will scrutinize everything you file.
Law changes. Rules of procedure change. Court policies change. Stay current.
Explain. If you want to do something unorthodox, explain why you want/need to do it and give as much authority as you can muster. Disclosure goes a long way! A secured creditor who doesn’t want the collateral back may be willing to accept your proposal if it is fact specific enough that it doesn’t run the risk of dealing with this issue in every case.
Say “The trustee is right.” Say it often and on the record, if possible.
Helen M. Morris has been the Chapter 13 trustee for the Northern and Southern Districts of West Virginia since October 1, 1996. Prior to her appointment, she was in private practice in Huntington, WV, where she served as a Chapter 7 panel trustee in addition to representing both debtors and creditors in bankruptcy matters; but not in the same case. She has a Bachelor’s degree from Marshall University in Huntington, WV, and her law degree from Vanderbilt University School of Law in Nashville, TN.