If I File Bankruptcy Do I Really Need to Attend the Meeting of the Creditors?
By Win Holbrook
The United States Bankruptcy Code (11 U.S.C. Sec. 101 et seq.) in Section 341 (a) provides that, within a reasonable time of the filing of a bankruptcy case, the United States Trustee [a component of the Department of Justice responsible for overseeing the administration of bankruptcy] “shall convene and preside at a meeting of creditors.” The purpose of the meeting of creditors is to permit the trustee [the individual appointed by the United States Trustee who administers the bankruptcy case] assigned to the case, creditors and other parties in interest to question the debtors under oath about their financial affairs. The meeting of creditors is normally scheduled and conducted in a particular place. In the Western District of Oklahoma, depending on the debtor’s place of residence, the meetings of creditors are conducted in Oklahoma City, Enid or Lawton.
Section 343 provides that “[t]he debtor shall appear and submit to examination under oath at the meeting of creditors….” The statute provides the debtor shall appear. It is not optional. However sometimes there may be exceptional circumstances preventing the debtor from appearing.
A recent case issued in the United States Bankruptcy Court for the Western District of Oklahoma, In re Mitchell Higgins, Case # 17-10762 (unpublished), sets forth the “’three-part exceptional circumstances test’ which permits a debtor’s mandatory in-person appearance at the first meeting of creditors to be waived only under rare circumstances.” The requirements are:
(1) the debtor cannot personally appear at the meeting of creditor at the place where the meetings are regularly conducted, because of serious health reasons or other reasons beyond the debtor’s control; (2) the inability of the debtor to personally appear is not a temporary impairment; and (3) the debtor has demonstrated a present and substantial need for bankruptcy relief[.]”
[In re Sochia, 231 B.R. 158 (Bankr, W.D.N.Y. 1999)]
In Higgins the debtor voluntarily relocated out of state after filing bankruptcy but before the meeting of creditors and did not meet the requirements above so he was required to attend the meeting of creditors.
In another unpublished case in the Western District of Oklahoma the debtor was not excused from attending the meeting of creditors because she was incarcerated. [In re Neider, Case #15-10681, (Bankr. W.D.Okla.)].
Other courts have found that illness, disability, or service in the armed forces may be grounds to conduct the meeting of creditors by some other means such as telephonically, video conference, use of interrogatories, or conducting the meeting of creditors as some other place more convenient to the debtor (i.e. if the debtor is incarcerated it may be able to be conducted in the prison).
The bottom line is that persons filing bankruptcy need to be prepared to personally attend the meeting of creditors.
May 2017 - Atendance at 341 meeting.pdf
Posted on Mon, May 22, 2017
by Andrews Davis