Bankruptcy in Brief
a service of the Moran Law Group
Creditors ask bankruptcy questions:
How do I
find out who is the trustee?
In a Chapter 7, the trustee is named on
the notice of the first meeting of creditors which is sent to every listed
creditor. That information is also available in
the case file at the bankruptcy court, and over the phone in some districts. In most
Chapter 11's, there is no trustee; the debtor assumes the duties of a trustee.
The United States Trustee is different from the case trustee: UST's are
employees of the Department of Justice and have oversight, but not day to day operating
responsibilities, in bankruptcy cases.
More about the selection and role of trustees
notice of the debtor's discharge and my claim has not been paid.
timetable on which the debtor gets a determination of his right to a discharge is not related to the administration of the
case by the trustee. The trustee continues administering the
assets of the case until the job is done; assets sold; claims are reviewed; fees determined, and the
creditors paid to the extent there are assets according to the priority
of the claim.
The debtor's discharge doesn't necessarily end the case nor keep the
trustee from pursuing assets for the benefit of creditors. Remember however, that
the vast majority of individual Chapter 7's have no assets from which creditors can be
employer filed bankruptcy owing me money
Employee claims for wages
earned in the 90 days prior to the bankruptcy filing (or the debtor ceasing operations,
whichever comes first) are a priority for
payment. Distribution on priority claims may not take place until the case is over,
File a claim, check the box on the claim form claiming a priority claim, provide your
social security number, and wait. The claim form is frequently
printed on the back of the notice of the first meeting of creditors. You can also
get forms from the court clerk or get claims forms online. Keep the
court informed if your address changes; otherwise, they can't find you
to mail the check! Get the proof
of claim form
only heard about the bankruptcy case but did not get a notice from the court.
you know about the bankruptcy case, even informally, you must act to preserve your rights.
Most courts hold that if you have actual knowledge of the case, however obtained,
you are bound by the filing deadlines for objections to dischargeability and for filing
claims. The court can search its records for the case number of a debtor (sometimes
you can get the information over the phone, and in other courts you must go to the court).
File a request to be added to the Master Address List in the case. Keep the
court informed if your address changes.
Denial of discharge
do I get my W-2 from a bankrupt employer?
Contact the trustee in
the case immediately. It is a task the trustee is supposed to accomplish.
The trustee has control of, or the right to control, the debtor's books and records
which may be necessary to get the W-2's generated. Don't wait til next year's tax
time to work this issue. By that time, the trustee may have closed his file
and disposed of the records.
Do I have to go to the 341
meeting to have my claim paid?
No. The first meeting of
creditors is a fact gathering event. Allowance and payment of your claim is not tied
to being at the 341 meeting. However, claims must be filed by the
time established by the court, and usually set out in the notice of the 341
meeting, to be paid.
As a creditor,
do I need a bankruptcy lawyer?
Not usually. In order to be paid in a bankruptcy proceeding, the
creditor usually has to file a proof of claim form. It summarizes the
claim and its priority. You don't need a lawyer to fill out the
form. Attach to the form a copy of the invoice or contract in question,
or a summary of the elements that make up the claim. Claims are freely
amendable if you make a mistake or omit something. If you didn't get a
proof of claim form, get
one on online.
Can I collect
my claim from the corporate officers or shareholders?
That depends on
whether there are facts making the officers or shareholders liable for the debt:
just being a shareholder, even the only shareholder, doesn't make one liable for the
corporation's debts. Those individuals could be liable if they guaranteed the debt
or if they ignored the corporation's separate legal standing to the extent that creditors
can pierce the corporate veil.
What can I
do if my account debtor is fraudulently disposing of assets?
can file an involuntary bankruptcy against a debtor who is not generally paying his
undisputed debts as they come due. 11 U.S.C. 303. The petitioning creditors
must hold at least $11,625 in undisputed, unsecured
claims. If the court finds that
the petitioning creditors have met their burden of proof, an order for relief in bankruptcy
is entered, and a bankruptcy case is commenced.
I have a
co signor or guarantor for my claim against the debtor: what now?
a creditor can do in this circumstance depends on what chapter the debtor filed.
Only if the debtor filed a Chapter 13 bankruptcy is a creditor prevented from collecting
from other obligors. In Chapter 13, the co-debtor stay protects co obligors and
guarantors on consumer debts. To proceed against them, a creditor must get relief from stay.
In any other chapter or if the debt is not a "consumer debt", creditors
are free to pursue guarantors or co signors,
the bankruptcy of the principal notwithstanding.
Can my judgment
The discharge of any debt depends on the kind of claim
which underlies the judgment and the chapter of bankruptcy involved. Just because
your debt is reduced to judgment does not necessarily insulate it from discharge. If
the judgment is for a contract debt, such as a promissory note or trade account, it is
likely dischargeable. If the judgment is one for fraud, it cannot be discharged in
Chapter 7, if you file a non dischargeability action, but can be discharged in Chapter 13.
See Contesting Discharge.
Remember, though, that if the judgment is secured
by a perfected
judgment lien which attaches to value owned by the debtor, you are a
secured creditor, an exalted being in the bankruptcy realm!
Liens generally survive
the bankruptcy as a charge on the property of the debtor.
The lien may be avoided if it impairs an exemption
or stripped down to the present value of the collateral in a Chapter
13. More on avoiding liens.
My tenant filed
bankruptcy: what can I do?
If the agreement by which the debtor occupied the property has been
breached, before the filing, you can seek relief from
the automatic stay to begin or continue eviction. When the leased
property is not the debtor's residence, the trustee or debtor in possession
must assume the lease within 60 days of the filing, or it is deemed
rejected. If the lease is rejected, the trustee cannot attempt to assign
the lease to a third party.
Even though the lease is rejected, the
trustee may have a continued right to occupy the property if assets of the
estate are located there until they can be sold or relocated. Know,
however, that post petition rent is an administrative claim, which has equal
status for payment with the trustee's commission from the assets of the