FAQ2020-08-07T17:54:37+00:00

ASK & WE ANSWER

FREQUENTLY ASKED QUESTIONS

Frequently Asked Questions

Why you should choose Chapter 13 over Chapter 7?2020-02-27T15:48:31+00:00

For debtors who qualify to file a Chapter 13 plan, Chapter 13 provides them with the tools to help level the playing field with their creditors.

Chapter 7 (liquidation) allows debtors to discharge certain of their obligations, but not all obligations.  Chapter 7 debtors are not required to make monthly payments to a trustee.
Chapter 13 debtors are required to commit all their disposable income to the trustee for a determined period of time ( 3 to 5 years), but receive a broader discharge than the one a debtor receives in Chapter 7.   While the plan form in each jurisdiction is the same in each Chapter 13 case, each case is different based on the needs and obligations of the debtors.
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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?2019-09-10T12:34:05+00:00

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.

How can I get access to information about my cases?2019-09-10T12:33:34+00:00

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.

When will I get paid my attorney fees?2019-09-10T12:33:02+00:00

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.

My client has finally gotten his/her loan modification on the mortgage. What do I do?2019-09-10T12:32:35+00:00

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.

My client wants to purchase a vehicle. What do I do?2019-09-10T12:32:05+00:00

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.

The debtor has a personal injury or consumer credit cause of action. Do I need to get approval to proceed?2019-09-10T12:31:34+00:00

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.

I’m doing extra work in this case. How do I get paid?2019-09-10T12:30:43+00:00

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.

How do I continue a hearing on the Court’s docket?2019-09-10T12:29:33+00:00

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.

How do I continue a meeting of creditors?2019-09-10T12:29:00+00:00

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.

When will my client get his/her refund?2019-09-10T12:28:30+00:00

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.

My client is behind in payments. What can we work out?2019-09-10T12:28:03+00:00

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.

Why didn’t the trustee recommend confirmation of the plan?2019-09-10T12:27:30+00:00

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.

Does my client have to attend the hearing?2019-09-10T12:26:56+00:00

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

I have a lawsuit. What do I need to do?2019-09-10T12:26:24+00:00

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.

My attorney won’t return my calls or respond to my letters. What can I do?2019-09-10T12:25:53+00:00

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.

My payments are supposed to be made by wage withholding, but my employer didn’t withhold. What do I do?2019-09-10T12:25:21+00:00

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.

How do I make a payment?2019-09-10T12:24:51+00:00

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.

I have a refund due. When will I get my refund?2019-09-10T12:24:21+00:00

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.

I’m behind in my payments. What can I do?2019-09-10T12:23:51+00:00

You need to contact your attorney.

There’s a hearing coming up in my case. Do I need to attend?2019-09-10T12:23:22+00:00

You will need to check with your attorney.

When is my first payment due?2019-09-10T12:22:47+00:00

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.

How much of my tax refund is due to the estate?2019-09-10T12:22:13+00:00

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.

How many tax returns do I have to send you?2019-09-10T12:21:38+00:00

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.

Did you receive my last payment?2019-09-10T12:21:07+00:00

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

How can I find out how many more months I have in my plan?2019-09-10T12:20:31+00:00

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.

I’ve moved. How do I change my address?2019-09-10T12:19:53+00:00

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.

What do I bring to the meeting of creditors?2019-09-10T12:19:21+00:00

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 don’t have an attorney. Can I call your office for help?2019-09-10T12:18:20+00:00

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

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?2019-09-10T12:17:23+00:00

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.

How do I get paid in a Chapter 13 case?2019-09-10T12:16:41+00:00

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.

How can I get access to case information?2019-09-10T12:16:07+00:00

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.

When will I get paid?2019-09-10T12:15:19+00:00

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.

The claim has been transferred to another entity. What do I need to do?2019-09-10T12:14:38+00:00

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.

I need to change the address for the payments from the trustee. How do I do that?2019-09-10T12:11:37+00:00

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.

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