Personal Bankruptcy

Chapter 7 Bankruptcy Blog By Olenicoff & Zinser, PC

U.S. Trustee Questions at the Meeting of Creditors

The following is a list of questions that many Trustees will ask you at the Chapter 7 Meeting of Creditors (also known as the 341). Not all of these questions are asked at every meeting but you should expect to at least answer questions 1 – 5, 8 and 10 at the Meeting of Creditors. Some Trustees will ask everyone if they owe child support – others will only ask if they think it is a possibility that you owe child support.

1. State your name and current address for the record.

2. Please provide your picture ID and Social Security card for review.

3. Did you sign the petition, schedules, statements, and related documents and is the signature your own? Did you read the petition, schedules, statements, and related documents before you signed them?

4. Are you personally familiar with the information contained in the petition, schedules, statements and related documents? To the best of your knowledge, is the information contained in the petition, schedules, statements, and related documents true and correct? Are there any errors or omissions to bring to my, or the court’s, attention at this time?

5. Are all of your assets identified on the schedules? Have you listed all of your creditors on the schedules?

6. Have you previously filed bankruptcy? (If so, the trustee must obtain the case number and the discharge information to determine the debtor(s)’ discharge eligibility.)

7. What is the address of your current employer?

8. Is the copy of the tax return you provided a true copy of the most recent tax return you filed?

9. Do you have a domestic support obligation? To whom? Please provide to me the claimant’s address and telephone number, but do not state it on the record.

10. Have you read the Bankruptcy Information Sheet provided by the United States Trustee?

11. Are you employed?

12. Is your employer’s address correct in the Schedules?

13. Have you transferred any property within the last 4 years over $20,000?
(This question varies from trustee to trustee in the amount of time and value.)

This is a sample of the questions most likely to be asked. The Trustee may ask additional
questions depending on the circumstances. Trustees may ask more questions about your
home (payments, back taxes, etc.) or business (if you own your own business). A common question about your home is “How did you arrive at the value of your home?”

Finally, the Meeting of Creditors is for creditors to ask you questions, however it is very rare that a creditor will come to a Meeting of Creditors. I have seen creditors come to the Meeting of Creditors when there was fraudulent activity on the part of the debtor and especially when the debtor is hiding significant assets.

I hope this de-mystifies the creditors meeting for you. For most debtors, the questioning at the Meeting of Creditors lasts 3 to 5 minutes. Although it can be an intimidating process, you can now see that it is something that you will be able to do with your attorney’s guidance and support.

Lenders Suing Borrowers for Deficiencies in California

I am finding that more and more lenders are suing borrowers for deficiencies on their second mortgages in California. Citimortgage was the first and most aggressive, it appears that Wells Fargo and National City have joined the bandwagon.

A deficiency is created when there is a short sale or a foreclosure and the lender is owed more than the lender receives from the sale of the home. Then the borrower is left with a deficiency on a loan but the borrower no longer has the home. In most foreclosures in California, the first lender cannot go after the borrower but oftentimes the second lender can. I see more and more people with lawsuits against them from lenders.

Bankruptcy is an alternative to lawsuits from lenders. In bankruptcy, you are released from personal liability on your mortgage. Your loan is still secured by a deed of trust on your home but after your discharge, you are no longer personally liable. If you are considering a short sale, a bankruptcy can be filed at any time during the short sale process and you will be able to continue with the short sale. You just need a good attorney to help you and your Realtor navigate those waters.

One final note of caution, to qualify for a Chapter 7 bankruptcy (a complete forgiveness of your debts), you must pass the means test. Most of my Orange County clients need to have a mortgage to help them qualify for the means test. So be careful, once you no longer own your home it may be close to impossible to file for Chapter 7 bankruptcy.

Bankruptcy Myths – Part 1

There are a lot of myths floating around out there about bankruptcy. One that we hear all the time is that in a Chapter 7 bankruptcy, the trustee or court will take everything you own and distribute it to creditors. In the vast majority of California Chapter 7 cases, the debtor is able to keep all of their property through the state exemptions. For instance, retirement accounts are generally protected, as are household goods and furniture. Determining which exemptions apply and how to use them can be tricky, so consult with a bankruptcy attorney before you determine that you have too many assets to file a Chapter 7 petition.

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