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.
I
got notice of the debtor's discharge and my claim has not been paid.
The
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; claims are
reviewed; fees determined, and the creditors paid if 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 paid.
My 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) is a priority
for payment. Distribution on priority claims may not take place until the
case is over, however. File a claim, check the box claiming a priority
claim, provide your social security number on the claim form, 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!
I
only heard about the bankruptcy case but did not get a notice from the court.
If 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, how ever 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.
How 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.
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.
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?
Creditors
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 $10,000 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?
What 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 be
discharged? 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.
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.
