“They ain’t pretty, nobody wants ‘em but, you gotta have ‘em”. This is actually a line from a commercial for a local tire shop but, it seems apropos for how many debtors and creditors feel about 341 meetings of creditors (“341s”). I have conducted thousands of 341s and while I cannot say I have seen it all, I have seen plenty. Most of the 341s I have conducted were done in-person. Since COVID, all of our district’s 341s have been conducted telephonically and now, via Zoom. Over the course of the last twelve years, our office has come up with specific practices and procedures that have helped us and hopefully, will help anyone reading this.
The first practice we implemented should work for any office regardless of whether 341s are conducted in-person or virtually. We found that providing debtors with instructions and the general questions that will be asked at the 341 prior to the actual meeting has helped reduce confusion and general chaos. (Although it has not completely eliminated the general chaos.) When we were in-person, we provided the instructions and questions at the Financial Management Course (a/k/a “Debtor Education). We held our Debtor Education classes in the morning and conducted 341s in the afternoon. Even though the debtors only received them a few hours beforehand, they had enough time to go over the instructions and questions and even had time to ask questions of their attorneys prior to the 341. This also helped speed up 341s as the debtors knew what questions were going to be asked, other than case-specific questions.
Since the pandemic when we started conducting 341s telephonically and now via Zoom, we no longer had the opportunity to give out the instructions and questions at the Debtor Education class. We noticed pretty early on that it made the telephonic 341s much less time-efficient, and we were regularly staying late in order to finish.
The most common problems we faced with telephonic meetings were that when debtors called in they had no clue how to mute their phone, would interrupt other 341s, they could not hear, or there was a delay due to cell phone reception (sometimes on our end, sometimes theirs, and worse, sometimes both). After about a year of this, we came up with a list of instructions for telephonic hearings and our office started mailing these as well as the general 341 questions to the debtors approximately one month before the 341. Our instructions include the following:
- Explaining how to mute/unmute their phone (landlines that did not have a mute button or the debtor simply could not find it, we instruct them to press *6 to mute/unmute).
- Ensuring debtors understand they will be testifying under oath and the 341s are recorded. We also remind them not to give their full Social Security number on the record as well as not asking any questions of their attorney on the record.
- Explaining that they could not be in/on a moving vehicle even if THEY were not driving. If they are in a moving vehicle, they or the driver will need to pull over to a quiet location (i.e., not the side of the road). Otherwise, we would have to continue the 341.
- Giving them procedures if their call “dropped” during their 341. We basically let them know we would stop the recording, give them a few minutes to get back on the line, and resume recording once they were back on the line.
- Instructing them that once their 341 was finished to make sure they properly “hung up” thus ending the call. We had a few cases where the debtors did not hang up and could not hear us asking them to hang up so everyone else had to hang up and call back.
We also read these instructions before each session in case the debtors did not receive or did not read the instructions. Once we started mailing these instructions ahead of time, we noticed that 341s went a lot faster and smoother. If we ever do go back to in-person 341s, we will continue this practice. Since we have started Zoom meetings, we have tailored our instructions for Zoom and even added visuals for the mute and video functions. We also print them on bright orange paper so they are hard to miss.
The next procedure we started using pretty quickly after we went telephonic – having hourly sessions for 341s. The hourly sessions are organized by debtor’s counsel and cuts down on the amount of people trying to call in/log into Zoom at the same time. We have one-hour sessions from 10 through 4 p.m. (minus the noon hour for lunch). We try to schedule only five per hour and if any individual attorney/firm has more than five we generally schedule two one-hour sessions for them. For those counsel who may only have one or two cases, we combine their session with another attorney(s) who only has one or two cases. Setting hourly sessions is a practice we will continue to use indefinitely whether virtually or in-person.
Another practice we started since COVID and will continue implementing is having debtor’s counsel send copies of the identification cards and Social Security cards prior to the 341. This helps us spot any issues beforehand such as different name spellings, expired identification cards, etc. We’ve had many instances where there were issues with the identification/Social Security cards and we had to continue the 341. Now, we can spot issues ahead of time, let the attorney know and, generally, they can be addressed before the 341.
The chief obstacle we have had since starting Zoom revolves around the lack of high-speed internet in our division. Our division is comprised almost entirely of rural areas and there are debtors who still only have access to satellite internet, which is neither reliable nor high-speed.Factor in the piney woods where many of our debtors live and it makes it nearly impossible for them to use Zoom at home. We encourage debtor’s counsel to have their clients come to their offices for 341s as most of their offices have high-speed internet hardwired and, obviously, hardwired internet has worked better with less hiccups.
Something else many debtor’s counsel have done is having their clients download the Zoom app before leaving their office upon their initial consultation. I believe that we are not unique in our experience with Zoom in saying that the app tends to work better than using the website.
Another problem we encounter is when the debtors call in during Zoom. When that happens, we walk them through the Zoom website or app (if they have it) and give them the ID and password if they do not have it in front of them. These are printed on the actual Notice of 341 which we always print beforehand and have ready. Although we are a paperless office, we always have a 341 binder that our paralegals prepare for us. The binder has the Notice of 341, the 341 questions, and copies of the plan and Schedules I and J. This was common practice for in-person 341s and it is something that we continually use in our office. Sometimes ECF/PACER or our software is down or running slowly so it helps to have these printed out for a quick reference if we need them.
An issue that has been pervasive throughout telephonic and now Zoom is background noise. In-person 341s were held at the courthouse so we did not have outside noise, or even regular office noise, to contend with. Even our own office has had some issues with noise. We make sure to remind everyone in the office we are about to start 341s in our conference room so try and minimize any noise (no vacuuming!).
Sometimes there are outside factors that cannot be controlled (construction, lawn care, etc.). The only thing one can do is mute after asking each question to reduce noise others on the call/Zoom hear. If there is any work that needs to be done on our building we ask for as much notice as possible or we request accommodations from the contractors, builders, etc. to make sure they can reduce or eliminate the noise on our 341 days.
As for the debtors’ background noise, the most common noise issues involve the debtors’ menageries of pets. When we were telephonic, I would ask the debtors to either get their pets outside or go outside themselves if it would be quieter. I never had to continue a meeting because they could not get to a quiet location but, I did have to suggest it a few times.
The best guidance I can give to anyone conducting 341s is to make sure the debtors, debtors’ counsel,and creditors are well-prepared prior to the 341. Make sure you are also well-prepared and most importantly, always remember to be patient. “Patience and perseverance have a magical effect before which difficulties disappear and obstacles vanish.” (John Quincy Adams)