What if I Cannot Attend My Meeting of Creditors?
When you file a bankruptcy case, probably the only time you'll come in contact with anything court-related will be your meeting of creditors (also called the Section 341 meeting). Thank goodness not many creditors actually appear, but the meeting does give the trustee an opportunity to question you about the information you provided in your schedules and statements.
The Meeting of Creditors is Required
The Meeting of Creditors is usually scheduled between 20 and 40 days after the case is filed. When the Notice of Commencement of Case is issued by the Bankruptcy Court, it will include information about the date, time and place for the meeting.
Unfortunately, you are not given a choice of times or dates. Section 341 requires that a meeting be held. Therefore, it is virtually impossible to obtain a discharge in a bankruptcy case without attending a meeting. But, sometimes, a debtor may find that she has a conflict. Although the meeting of creditors is a serious part of the bankruptcy process, timing conflicts are not all that unusual. Debtors may have to be out of town, have important work responsibilities that they can't postpone, have small children to watch, become ill.
I've even had debtors who were in the military stationed overseas or incarcerated at the time scheduled for their meeting with the trustee.
What to Do if a Conflict Arises
First: As a debtor, you must take this requirement seriously. If you ignore your meeting or even accidentally miss it, your case may be dismissed even if you had a good excuse. Your best chance of resolving the conflict is to be proactive.
Second: You must also understand that different jurisdictions, different districts, and even different trustees will treat your conflict or your absence from the meeting in different ways. Your attorney is your best guide on these matters.
Third: As soon as you realize that the meeting is scheduled for a time that won't work for you, contact your attorney. With enough lead time, the attorney may be able to consult with the trustee and move the meeting to a time or date that works better for you. This may require sending out an amended notice to creditors. If your conflict arises shortly before the meeting, for instance, you become ill, contact your attorney immediately. It is likely that the attorney will need to attend the scheduled meeting to explain your circumstances to the trustee and ask for a re-setting of the meeting.
Some conflicts are more easily excused than others. For instance, a trustee is likely to reschedule for a sudden illness. On the other hand, a trustee is not likely to be understanding if you claim a failure to find a babysitter or deadlines at work. Interestingly, trustees are often more understanding when the conflicts would cost you money. For instance, trustees seem to be more amenable to rescheduling if you have non-refundable plane tickets for a trip that was scheduled before your case was filed.
What to Do if You Have a Continuing Conflict
A continuing conflict would include those cases in which the debtor is physically not able to attend a meeting either because of chronic illness, absence from the jurisdiction, military service, incarceration, or death of the debtor or a family member. These issues are handled differently in different jurisdictions. In some cases, the trustee may agree to hold open the case for some period of time - even months - if the debtor's schedule is fixed and the trustee can be relatively certain that the debtor will be available on a certain date.
Trustees have allowed debtors to attend by proxy (like a wife standing in for her husband, especially if both spouses have filed a joint case) or by use of a power of attorney.
If the debtor is out of the jurisdiction, and it is not likely that he will be in town within a reasonable period of time, the trustee may agree to allow the meeting by telephone or over the Internet. Since the debtor must be sworn in before he can give any testimony in the case, it may be necessary that a notary or other personnel with authority to administer oaths attend at the remote location. Debtors out of the country have used the facilities of the US Embassy or consulate in their location.
In extreme circumstances, some trustees may agree to hold the meeting on interrogatories. These are a series of written questions for which you will provide written answers similar to interrogatories that are taken during the discovery phase of the civil lawsuit.
What Happens if You Don't Show up at the Meeting?
The worst thing you can do is just not show up at the meeting. If that happens with no prior explanation, the trustee is less likely to provide you any consideration in rescheduling.
Even if you've contacted the trustee early about your conflict and obtained a re-setting, the trustee is likely to file a motion with the court to dismiss your case. The reason for this is simple. Motions to dismiss are not usually granted immediately. The motion will be set for hearing before the judge on a future date. Having a motion on file will provide an incentive to ensure you attend the rescheduled meeting and will speed up the dismissal process if you don't. If you fulfill your obligation, the trustee will simply withdraw the motion to dismiss.
Learn What to Expect at y=Your Meeting of Creditors
In the article What You Need to Know About Your Meeting of Creditors, we talk about the requirement in the Bankruptcy Code that every debtor attend a meeting with the trustee. We have also discussed what to expect at the meeting and what questions you might be asked.