About Chapter 13

Chapter 13 is an opportunity for qualified debtors to restore balance to their financial life.

Unlike credit counseling debt repayment plans which are voluntary for all parties, an approved Chapter 13 plan, represented by the confirmation order, is binding on all parties, including those creditors who were notified about the Chapter 13 filing but chose not to participate.

One size plan does not fit all. YOUR Chapter 13 plan can be tailored to suit your needs--although it may NOT allow you to continue in a lifestyle as yet unaffordable.

For more details on Chapter 13, read an informal article by the Chapter 13 trustee for the Northern and Southern Districts of West Virginia or a view of Chapter 13 from the federal judiciary.

 

Thirteen Rules

Treat my staff with respect.

They know what they are doing. If they tell you that they can’t give you certain information over the phone, they are following office policy and procedures. You can probably find the information you are seeking at National Data Center or 13Network. Both are free to debtors’ counsel, 13 Network is free to creditor’s counsel as well, and NDC is free to debtors. We give each debtor a brochure with instructions on accessing NDC at the meeting of creditors.

Help yourself.

Throwing together something to get it filed doesn’t progress the case—whether it’s sloppy schedules, a plan that won’t work, an incomplete proof of claim, or an inaccurate motion for stay relief. You may have met a deadline, but you’ve created more work for yourself, in all likelihood, since sloppy work delays confirmation, generates objections and counter-pleadings, and hearings.

Investigate.

If you are debtor’s counsel, BAPCPA requires more personal knowledge. You can’t simply rely on what the debtor-client told you. Apply common-sense when you review schedules. Why does a couple with two children under 5 years of age have a cell phone bill In excess of $450.00? The Trustee’s inquiring mind will want to know. If you are creditor’s counsel and are forwarded information for a motion for stay relief, look at more than what your client sent you. Check out the plan, and if it provides that the trustee is to make the payments on that secured claim, check it out. Some creditors seem to have a difficult time applying payments. Better to deal with the condescension of the creditor’s employee than explain to the Judge in open court why you didn’t check out the trustee’s payments which are available to you online before you filed.

Review the documents you are required to provide/file.

Compare it to the information you put in the schedules, plan and Statement of Financial Affairs. The car value should be the same on the schedules and the plan. Tax returns frequently show greater income than the schedules or show omitted sources of income. We actually look at the returns. So should counsel.

Tax returns are due 7 days prior to the meeting of creditors.

This should not be a surprise. BAPCPA went into effect in 2006. It’s not “new law.”

Evaluate the case.

Not everyone, as much as it pains me to write this, can perform in a Chapter 13 case. Nor, sad to say, does everyone who qualifies for a Chapter 13 want to be there. As a trustee, I want to see more filings, but not more non-productive cases.

Enlist the aid of a calculator.

I use base 10 for our numerical calculations. Many plans appear to use another numerical system.

No shifting responsibilities.

Some things are part of the representation of the debtors. The trustee cannot represent the debtors. The trustee is required to assist the debtor in completing the plan—not replace counsel. What I try to do is give the debtors and their counsel tools to use, such as written recommendations in advance of the hearings, worksheets which show how I calculate what the plan will pay, and making that worksheet available online to counsel filing notices of plan payment changes as necessary and even motions to dismiss to show that the debtors are not keeping up with payments. The trustee is specifically prohibited from giving legal advice to any party, including creditors.

Read:

The plan as you fill it out;

The pleadings which are filed; (I personally think you should read the recommendation and review the workup which is filed prior to the confirmation hearing. I feel like a babysitter when I have to read these to counsel, whom I presume know how to read.)

The pleadings you file and the orders you write. The relief set forth in the order you draft should match what the Court granted in a hearing, or, if a default order, what was sought in the motion/objection.

Understand what can and can’t be done in your client’s case.

Filing plans/pleadings which seek to something that is prohibited by the Code make you appear to be gaming the system, playing “catch me if you can” with the trustee, opposing counsel, and the Court. You may slip a few past everyone; but if it appears to be a pattern, I and my staff attorney, at least, will scrutinize everything you file.

Law changes.

Rules of procedure change. Court policies change. Stay current.

Explain.

If you want to do something that is unorthodox, explain why you want/need to do it and give as much authority as you can muster. Disclosure goes a long way! A secured creditor who doesn’t want the collateral back may be willing to accept your proposal if it is fact specific enough that the creditor doesn’t run the risk of dealing with this issue in every case.

Say “The trustee is right.”

Say it often and on the record, if possible.

 

FAQs

Debtors'

I don’t have an attorney. Can I call your office for help?

My office cannot give legal advice. 

There is a misconception about the cost of legal services in a Chapter 13 case.  Since the attorney fees can be paid through the trustee, many attorneys will take a small retainer to take your case and then be paid the balance through the trustee.  The State Bar has a bankruptcy lawyer list which might be helpful to you.  Although some debtors have successfully completed a case without a lawyer, it is difficult

What do I bring to the meeting of creditors?

You need to bring a current photo identification document (driver’s license/passport), your Social Security card or other government-issued Social Security verification, bank statements and pay stubs since the filing of the case.  The most current tax returns were due to the trustee seven days in advance of the meeting of creditors.

I’ve moved. How do I change my address?

Contact your attorney with your new address.  Your attorney will file the change of address with the Court.  My office will not change any addresses in our system unless the change of address is filed with the Court.  If you are a pro se debtor, you will need to send a signed letter to the Clerk’s office with your change of address.

How can I find out how many more months I have in my plan?

At the meeting of creditors in your case, you received a brochure from National Data Center which gives you information on how to get online access to your case.  If you have lost that brochure, you can go here to get started: https://www.ndc.org/debtor-registration-instructions. In addition, you receive an annual report from my office, which tells you the balance left on your gross base.  This is an unaudited figure, but you can use divide the balance owed on the gross base by the amount of your monthly payment to give you a rough estimate of the number of payments left in your plan.  Please remember that if you have missed payments, accrued interest may mean that you will have to pay longer or increase your plan payments.

Did you receive my last payment?

You can check your case online at National Data Center here: https://www.ndc.org/

How many tax returns do I have to send you?

Seven days before the meeting of creditors, the most recent tax return due to the taxing authorities is to be provided to the trustee.  After that, each current year tax return is due.  For the meeting of creditors, we need only the federal returns.  Thereafter, we need both state and federal returns, particularly if you are going to claim an offset against any tax refund due to the estate for a payment due to the state.

How much of my tax refund is due to the estate?

Generally speaking, the tax refund less $1,500.00 and any tax credits.  For example, if a debtor has a tax refund of $5,000.00, the debtor is allowed to retain $1,500.00, so $3,500.00 would be due to the trustee.  If that debtor had child tax creditors of $2,000.00, only $1,500.00 would be paid to the trustee.  The cost of paying someone to do your taxes is NOT a deduction from the refund due to the trustee.

When is my first payment due?

Your first payment is due within 30 days of the filing of the case or conversion from Chapter 7.  This is true even if the plan is not filed with the petition.  We do motions to dismiss if two payments are missed, which include that first payment.

There’s a hearing coming up in my case. Do I need to attend?

You will need to check with your attorney.  

I’m behind in my payments. What can I do?

You need to contact your attorney.

I have a refund due. When will I get my refund?

There is a 10-business day hold on ALL payments.  We disburse once a month, generally the third to last business day of the month.  Thus, if a payment is received on the 15th of the month or later, it will be disbursed the following month.  

How do I make a payment?

Payments may be by wage withholding or direct payment.  Direct payments may be made by check, money order, cashier’s check or electronically.  We accept payments through your own bank’s online bill pay program or through SunTrust’s e-pay program.  Details of the SunTrust e-pay program can be found at http://www.13network.com/trustees/cwv/cwv_epay.asp. All payments must include the name and case number.  We give debtors a set of mailing labels and case number labels at the meeting of creditors.  If you have used all of yours or misplaced them, please contact my office for replacement labels.  Please do NOT cover the bank routing numbers at the bottom of the check with your label.

My payments are supposed to be made by wage withholding, but my employer didn’t withhold. What do I do?

You are responsible for making the payments.  If  the employer didn’t withhold, then you need to make the payment directly either by check or electronically. (See How do I make a payment?)  In addition, you may wish to contact your payroll department to make sure that the wage withholding order was received, and you should let your attorney know of the situation.

My attorney won’t return my calls or respond to my letters. What can I do?

You can send a letter to the U.S. Trustee’s office at:

Office of the U S Trustee
300 Virginia St E.
Charleston, WV 25301

The U.S. Trustee is charged with the duty of monitoring bankruptcy attorneys.   However, if you are represented, they will not talk to you on the phone with your initial complaint, so if you are going to complain about your attorney to the U.S. Trustee, you must put it in writing.

You can also file a complaint with the State Bar.  The address is:

The West Virginia State Bar
2000 Deitrick Boulevard
Charleston, WV  25311-1231

My office is unable to assist you in complaints about your attorney as my office administers Chapter 13 plans and does not have supervision of the attorneys.  

I have a lawsuit. What do I need to do?

You need to tell your bankruptcy attorney about the lawsuit.  There are papers which need to be filed in your case.   You also need to tell the attorney who is representing you in the lawsuit about the bankruptcy.  Many times debtors will fail to tell the attorney who is representing them in a lawsuit about the bankruptcy.  Most defendants ask about bankruptcy filings and can go online and discover your filing themselves.  There are consequences to failing to keep both your attorneys informed.

Debtors' Counsel

Does my client have to attend the hearing?

The Chapter 13 Trustee is unable to make that determination for the attorney.

Why didn’t the trustee recommend confirmation of the plan?

Because there are problems with the case.  You need to review both the workup and the written recommendation filed by the trustee or staff attorney.  You can’t rely on the Pacer notation “Not Recommended” and expect the case to make progress.  Some attorneys and/or paralegals call my office and want one of my staffers or my staff attorney to take the time to read the recommendation to them.  Reading the recommendation and reviewing the workup is part of your representation of your client.  I have suggested to my staff that we keep track of those attorneys who call with these requests so that we can advise the Court that perhaps there needs to be a reduction in attorney fees.

My client is behind in payments. What can we work out?

Know what your client can do before you contact my office.   If the case is unconfirmed, we can do a temporary order that resolves the default.  If the case is confirmed, we will need to do a workup before we can tell you whether your proposal will work, particularly if there are mortgage payments or other secured debt in the payments being made by the trustee.

When will my client get his/her refund?

There is a 10-business day hold on ALL payments.  We disburse once a month, generally the third to last business day of the month.  Thus, if a payment is received on the 15th of the month or later, it will be disbursed the following month.

How do I continue a meeting of creditors?

Contact Mike Christenson in my office.  He has the authority to continue a meeting of creditors one time and can tell you the date of the next hearing.  If  this is a Southern District case, you will be required to notice out the continued hearing.  Remember, meetings of creditors are the province of the U.S. Trustee, not the Court.  11 U.S.C. 341 even prohibits a bankruptcy judge from attending the 341 hearings.  The Court has NO authority to continue a meeting of creditors, so filing a motion to continue a meeting of creditors is a waste of time.

How do I continue a hearing on the Court’s docket?

You will need to file a motion to continue.  My office has no authority to continue a hearing set on the Court’s docket; however, you may need the agreement of myself or my staff attorney if you wait too close to the hearing date to request the continuance or if this is a second or subsequent continuance of the same hearing.

I’m doing extra work in this case. How do I get paid?

If you are doing work which was not contemplated by your written fee agreement, you will need to file a fee application for the extra work.  Just because the work is post-petition, doesn’t mean that you can charge the debtor directly.  Remember that Section 1306 makes ALL after-acquired income and assets property of the estate.

The debtor has a personal injury or consumer credit cause of action. Do I need to get approval to proceed?

Both Courts presently do not require employment applications if the same attorney is representing the debtor in the bankruptcy and the p.i. or consumer cause of action.  If the attorney who is representing the debtor is a third party attorney, approval is necessary—if the attorney wants to get paid.  Approval of all settlements, whether any money goes to the bankruptcy estate, is required.   The trustee will object to confidential settlement agreements.

My client wants to purchase a vehicle. What do I do?

Both courts have forms on their websites to expedite the process.

For Northern District, use this form: http://www.wvnb.uscourts.gov/sites/wvnb/files/forms/Stipulation%20Authorizing%20Post%20Petition%20Debt%20in%20Chapter%2013.pdf

For Southern District, use this form:

http://www.wvsb.uscourts.gov/sites/wvsb/files/forms/ch13motionincur.pdf

If you use the forms and take the time to fill them out correctly, the process is streamlined.  If not, there’s usually an objection from the trustee, which will necessitate a hearing, which will delay the purchase.

My client has finally gotten his/her loan modification on the mortgage. What do I do?

The Northern District has a form that will added to the official forms on the Court’s website. Use it and make this simple.  In Southern District, the form hasn’t been approved, but if you use it, it will speed things up.

When will I get paid my attorney fees?

Attorney fees in Chapter 13 cases are paid after the case is confirmed.  In Northern District cases, we try to pay as much of the fee as possible upon confirmation and pay any balance in full before paying the unsecured creditors.  In Southern District cases, we try to pay as much of any remaining balance of the retainer as possible upon confirmation and pay the balance—along with the 4% fee—with the secured claims.

Attorney fees in Chapter 13 cases can be paid electronically.  We have a simplified process which can have the money in your bank account within 2 days of processing.  Please contact my finance officer, Brandon Bignall, bkbignall@wvtrustee.org, to make the arrangements.

How can I get access to information about my cases?

Debtors’ counsel can access their cases through the National Data Center at https://www.ndc.org/—free of charge—or can go to 13 Network, http://www.13network.com/trustees/cwv/cwvhome.asp, also free of charge.  Please go to http://www.13network.com/trustees/cwv/cwvdocs/cwv_waa.htm to request a login.

The trustee has filed a motion to dismiss in one of my cases. It was filed as an emergency filing to stop a foreclosure. The motion to dismiss has a payment due even before I filed a plan in the case. Isn't this a mistake?

Plan payments are due within 30 days of the filing of a petition.  Very frequently a first payment is missed because the petition was an “Emergency Filing” because the debtors waited until immediately before the foreclosure sale to make an appointment to see counsel.  While I understand that  debtor’s counsel is not in a position at that moment to calculate the plan payment, it is important to give debtors a temporary plan payment.  To calculate the temporary plan payment, round the mortgage payment up to the nearest even number and add 10%.  If the debtor tells you that he/she can’t make that payment, this is a good indicator that this case is NOT going to succeed as a Chapter 13 case.  This is the absolute minimum that will be needed to fund the plan.  The debtor may be able to negotiate a lower payment at some point in the case, but it’s not going to be in the next 30 days.  The debtor may need to pay other secured claims through the plan and generally has unsecured claims—as well as your attorney fee.  In most cases, the plan payment, when you have all the details in front of you, is going to be higher; but getting that first payment started while the debtor is still grateful that you are helping him/her save the house moves the plan forward—and increases your likelihood of getting the plan confirmed first hearing after the bar date.

Creditors' Counsel

I need to change the address for the payments from the trustee. How do I do that?

My office will not change an address—for checks or notices—unless the change of address is filed with the Court.  My preference is for an amended proof of claim, which changes only the address you want changed.  My claims manager sends out change of address forms to creditors who request address changes by letter.  That form must be filed with the Court before we will change the address in our system.

If you are amending a proof of claim, do NOT subtract any money which was paid to the creditor by the trustee.  When we enter an amended proof of claim which puts the claim paid into an overpayment situation, we seek the overpayment.

The claim has been transferred to another entity. What do I need to do?

The transfer of claims form needs to be filed with the Court pursuant to Bankruptcy Rule 3001(e).  Yes, there is a fee; but my office will not make any transfers in our system until the document is filed with the Court.  

When will I get paid?

There is a 10-business day hold on ALL payments.  We disburse once a month, generally the third to last business day of the month.  Thus, if a payment is received on the 15th of the month or later, it will be disbursed the following month.

Creditors can be paid electronically. We have a simplified process which can have the money in your bank account within 2 days of processing.  Please contact my finance officer, Brandon Bignall, bkbignall@wvtrustee.org, to make the arrangements.

How can I get access to case information?

Creditors can obtain information through the National Data Center at https://www.ndc.org/ for a charge. Information is also available from 13Network at http://www.13network.com/trustees/cwv/cwvhome.asp at no charge for attorneys who represent a creditor in a specific case.  Please go to http://www.13network.com/trustees/cwv/cwvdocs/cwv_waa.htm to request a login.

Before filing a motion for stay relief,  if the claim is being paid by my office, please check 13Network or NDC to make sure that your client has transmitted to you accurate information.  Many creditors, particularly the large ones, appear unable to properly credit payments.  In more than one case, I have received attorney fees for having to respond to and appear at a hearing for stay relief when the debtor was current on plan payments and the payments to the creditor were up-to-date.  In one case, debtor’s counsel also responded and both that attorney and I were compensated.

How do I get paid in a Chapter 13 case?

You must file a proof of claim.  Some secured creditors have decided that since the Rules do not set a bar date for secured claims, they don’t need to file a proof of claim, particularly if  the plan provides for payment.  What my staff attorney and I have been doing recently is stating that without a proof of claim, the claim isn’t going to be paid.  We put that in the written recommendation which is filed with the Court and served on all parties who have requested notice in the case.  It is also in the confirmation order, which is res judicata to all parties to the case.

The proof of claim form changes periodically.  Make sure that you’re using the most recent version and complete it accurately and don’t forget to include required attachments.  Remember that it is signed under penalty of perjury.  I know that many local attorneys are filing these for clients on a flat-fee basis.  Dealing with an objection will reduce any profit in that fee.

The trustee/debtor filed an objection to my claim. I filed an amended claim, but an order got entered disallowing my claim. What do I need to do now?

If an objection is filed to a claim, please remember that simply amending the claim does not respond to the objection. The order which is entered with respect to the claim controls, not the amended claim.  If an order was entered after the amended claim was filed, contact the attorney who filed the objection and see if he/she is willing to submit an amended order.  The amended proof of claim may not have satisfied the objection.

Trustee's Perspective

A Snarky Voice of Reason

The Power of Zero

ON October 28, 2014

BY admin

Zero is simply amazing. Zero multiplied by any number remains ZERO. I point this out because many debtors and their attorneys appear to think a Chapter 13 plan can work with Zero as a plan payment. I frequently see debtors miss the first and second plan payments with excuses ranging from “I didn’t know when my payment was due” to “It’s wage withheld, and my employer didn’t withhold it.” Couns...

Read more

Why 10%

ON October 27, 2014

BY admin

The maximum fee for a Chapter 13 trustee is 10%. The Executive Office of the United States Trustee sets each Chapter 13 trustee’s percentage fee based on the estimated receipts in each office and the approved budget for each office. If receipts go up (or down due to declining filings) and/or there are changes in the trustee operations, the fee will be adjusted. In at least 13 of the 18 y...

Read more

Useful Links

 

Pages

Northern District Bankruptcy Court webpage:
http://www.wvnb.uscourts.gov/

Southern District Bankruptcy Court webpage
http://www.wvsb.uscourts.gov/

U.S. Trustee webpage
http://www.justice.gov/ust/

National Data Center
https://www.ndc.org/

13Network
http://www.13network.com/trustees/cwv/cwvhome.asp

NACTT Academy
http://considerchapter13.org/

Annual Credit Report
https://www.annualcreditreport.com/index.action

Forms

Northern District Bankruptcy Court Chapter 13 forms:
http://www.wvnb.uscourts.gov/forms/all-forms/chap_13

Southern District Bankruptcy Court Chapter 13 forms:
http://www.wvsb.uscourts.gov/forms/all-forms/chap_13

 

Contact

 

The office is open from 8:30 a.m. to 4:30 p.m. Monday through Friday. The office is closed for all federal holidays, the day after Thanksgiving, Christmas Eve, Christmas Day, and Boxing Day. The office may be closed due to circumstances beyond our control on other days.

The Office of the Chapter 13 Trustee cannot give legal advice to any party. Whether you are debtor or a creditor in a case, you must consult your attorney for legal advice. Prefacing a question with “I’m not asking for legal advice,” does not change the nature of your question.

Street Address

Office of the Chapter 13 Trustee
600 D Street, Ste 1
South Charleston, WV 25303
(304) 744-6730

Mailing address: Correspondence

P.O. Box 8535
South Charleston, WV 25303

Mailing address: Payments

P.O. Box 2207
Memphis, TN 38101-2207

Transmittal address for tax returns

taxreturns@wvtrustee.org