BANKRUPTCY, DOCUMENTATION, AND THE DEBTOR’S DUTY TO COOPERATE
“Why do I have to give you all of these documents?” is one of the most common questions that consumer bankruptcy attorneys hear from their clients.
In a Chapter 7 or Chapter 13 bankruptcy case in Michigan, you are required to provide to your bankruptcy attorney more documentation concerning your financial life than you have likely ever before amassed at one time, unless you have been audited by the IRS.
Your bankruptcy attorney requires this documentation, obviously, to draft for you the bankruptcy petition which, when filed with the US Bankruptcy Court, initiates your Chapter 7 or Chapter 13 bankruptcy case.
The Chapter 7 or Chapter 13 bankruptcy petition is, essentially, a 60-80-page list of your assets, the “exemptions” you hope will protect them from liquidation in a Chapter 7 or plan payment increase in a Chapter 13, your monthly average income, your monthly average expenses, leases and contracts to which you are party, your co-debtors, and, of course—your debts.
Additionally, the bankruptcy petition requires that you provide detail regarding your identity, corporations you have an interest in, and approximately 20 pages’ worth of information regarding various financial transactions you may or may not have engaged in over as many as 10 years prior to the filing of the Chapter or Chapter 13 case.
In other words: a lot of information.
Yes, it’s a pain in the caboose (bankruptcy lawyers don’t love it, either), but it is important to remember that, when you file for Chapter 7 or Chapter 13 bankruptcy, you are asking the Federal government for an enormous benefit: the discharge of debt owed to private parties—your creditors—from whom you have (usually) voluntarily borrowed money.
For the Federal government to allow you to freely walk away from your obligations arising under private contracts with private parties is actually a very big deal, legally speaking. For the most part, that is not how our government works.
In bankruptcy, it does. And the Congressional Record for the enactment of the US Bankruptcy Code (the Federal law governing the bankruptcy process) and voluminous case-law make it clear that the purpose of bankruptcy is provide relief from debt for “the honest but deserving debtor.”
Is that you? Yes or no?
The Bankruptcy Code provides for the appointment of individuals known as Chapter 7 and Chapter 13 Trustees whose job it is to make sure that you are.
This is the second reason that your bankruptcy attorney is asking you to provide so much stuff: we have to turn certain documentation relating to your finances over to your Chapter 7 Trustee or Chapter 13 Trustee after you file your case.
That said, what must be turned over and how much of it?
How many years’ worth of documentation must be turned over to a Trustee?
What if you don’t actually have it?
What if the Trustee is insisting it be turned over and threatening dire consequences for your bankruptcy case—or you—if it isn’t?
Bankruptcy Trustees—especially Chapter 7 Trustees, who are financially incentivized to dig through your couch cushions for loose change—can overreach in their demands. They have been known to be overly aggressive and to make unreasonable demands.
They have been known to engage in fishing expeditions at the cost of your time, your expense, and your nervous condition.
What is the limit of a Chapter 7 or Chapter 13 bankruptcy debtor’s legal duty to cooperate with Trustee demands?
THE BANKRUPTCY CODE AND THE DUTY TO COOPERATE WITH TRUSTEES
The Bankruptcy Code requires that a Chapter 7 or Chapter 13 debtor:
- File a “statement” disclosing any reasonably anticipated increase in income or expenditures over the 12-month period following the date of bankruptcy filing (this is handled in the bankruptcy petition “schedules”);
- Cooperate with the Trustee “as necessary to enable” the Trustee to perform his or her duties under the Code;
- Surrender all property of the (bankruptcy) estate (created with the filing of the bankruptcy petition) and “… any recorded information, including books, documents, records, and papers, relating to the property of the estate.”
The statutory duty to cooperate with a Trustee is thus both wide in scope—but also limited. To be required to cooperate “as necessary” to enable a Trustee to perform his or her “duties under the Code” is to be subject to variety of demands, at first glance limited only by the Trustee’s imagination. However, the Trustee’s demands must be in furtherance of professional duties described by the Bankruptcy Code.
A Trustee cannot demand, therefore, copies of your boudoir photos just for the sake of stealing a glance at them.
Unless, that is, you are selling copies on the internet—and then the Trustee can certainly demand sales records and proceeds and, yes, inventory if not exempted or otherwise sheltered.
The Bankruptcy Code empowers a Chapter 7 Trustee to seize and liquidate property of the Debtor’s bankruptcy estate for distribution to creditors. You would be obligated to comply with such a documentation turnover demand.
But what if the Trustee, in a garden-variety consumer Chapter 7 case, demanded 20 years’ worth of such records?
That would likely be an over-broad request to which compliance would arguably be unduly costly and burdensome to the debtor and without sufficient connection to the present assets of the bankruptcy estate.
THE IMPROPER RESPONSE TO IMPROPER TRUSTEE DOCUMENTATION REQUESTS
Do you, then, simply ignore a Chapter 7 or Chapter 13 Trustee documentation request which you view as overly broad or otherwise improper?
When you ignore or simply fail to comply with a Trustee documentation demand, the Trustee has multiple options for forcing your compliance.
Although the Eastern District of Michigan Bankruptcy Court has ruled that there is no provision in the Bankruptcy Code that expressly provides a private cause of action for, say, money damages against a debtor for breaching his or her duties to cooperate with a Trustee, there are other remedies available.
A Chapter 7 or Chapter 13 Trustee can file a motion for sanctions, a motion to dismiss the bankruptcy case or a proceeding to deny the debtor’s discharge.
Even after a bankruptcy case is closed, should new information come to the Trustee’s attention that the Debtor, during the bankruptcy case, did not comply with his or her disclosure duty, the Trustee can move to reopen the bankruptcy case in order to have the debtor’s discharge revoked.
A Trustee can object to a motion by a Debtor seeking to convert to or from Chapter 7 or Chapter 13 on bad faith grounds.
A Trustee can file a motion asking the Court to compel the debtor’s compliance.
Should the Trustee succeed in obtaining that sort of order and should the debtor continue to fail to comply, that is where “money damages” can re-enter the picture, in the form of sanctions ordered by the Court for the debtor’s contempt of its order in failing to comply.
Ignoring a Trustee’s demand for documentation or information or your testimony is not a viable option, even if the Trustee is, in your opinion, acting in an outrageous manner.
If a Trustee is knocking at your door, you need to speak with your Michigan bankruptcy attorney.
THE PROPER RESPONSE TO IMPROPER TRUSTEE DOCUMENTATION REQUESTS
The first step of a proper response to an improper Trustee documentation demand is to have a bankruptcy lawyer working for you.
If you filed your Chapter 7 or Chapter 13 bankruptcy case without an attorney to save a few bucks, this is one of the many situations where that decision may cost you.
It isn’t too late to speak with a bankruptcy attorney about representing you, even at this post-filing stage, although many lawyers are reluctant to step into a case filed by a debtor pro se.
Presuming that you do have a bankruptcy attorney working for you, your attorney will advise you as to the proper response.
Generally, that advice will be to comply. When a bankruptcy attorney litigates for you after the filing of a case, he or she is nearly always doing so at an hourly rate, in addition to whatever “flat fee” you may have paid for the initial filing of the case.
The duty to turn over information enabling a Trustee to do his or her job as defined by the Bankruptcy Code is, again, a broad scope. Hauling a Trustee in front of a judge needs to be worth your while, in terms of the odds of success.
That said, when a Trustee does make an improper or impossible demand (such as requiring that you produce something that you don’t have or that doesn’t actually exist), your bankruptcy attorney will attempt to negotiate with the Trustee first and foremost.
If that doesn’t produce results, your attorney will file a motion of one sort or another to get the Trustee and his or her demand in front of the Bankruptcy Court judge assigned to your case. If the Trustee files a motion for contempt or sanctions or “show cause,” your attorney will file a response, and the matter will end up before the judge in the same manner.
At the end of the day, it is worth remembering that a Bankruptcy Trustee is not a judge. Chapter 7 Trustees, especially, are prone to threatening the most dire doom and gloom possible upon a debtor in order to scare them into compliance.
Resisting Trustee demands not supported by the Bankruptcy Code or Local Court Rule is what bankruptcy attorneys do.
THE BANKRUPTCY DEBTOR’S DUTY TO COOPERATE WITH A TRUSTEE: THE BOTTOM LINE
The bottom line is that an argument with a Chapter 7 or Chapter 13 Trustee regarding documentation or information turnover is going to work out better for you with an experienced Michigan bankruptcy attorney in your corner.
Attorney Walter Metzen is a Board Certified Bankruptcy expert and has successfully defended hundreds of clients against Chapter 7 and Chapter 13 Trustee overreach.
The Law Offices of Walter A. Metzen & Associates offers free consultations for those interested in the bankruptcy process and is experienced in determining and advising as to the best course of action when filing Chapter 7 or Chapter 13.