§ 26.3     Prefiling Role of Chapter 13 Trustee
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 26.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Though the Bankruptcy Code does not prescribe a role for the Chapter 13 trustee in advance of filing, in many jurisdictions the Chapter 13 trustee is involved in counseling potential debtors and preparing documents necessary to commence a Chapter 13 case. In some jurisdictions, this practice has developed so far that debtor’s counsel refers the potential debtor to the Chapter 13 trustee, and the trustee then participates in the preparation of the petition, schedules and plan.

[2]

As a general rule, Chapter 13 trustees are pleased to consult with debtor’s counsel in advance of the filing of a difficult case. If eligibility is questionable or confirmation may be difficult, presenting the facts to the Chapter 13 trustee in advance of filing can quell opposition from the trustee or at least help counsel to find the debtor’s best position. The Chapter 13 trustee can be a powerful ally in a tight case, but the trustee is not permitted to give legal advice to the debtor.1

[3]

If the debtor is particularly concerned about the impact of an income deduction order on the debtor’s employment, the Chapter 13 trustee can be enlisted in advance of filing to discuss Chapter 13 with the debtor and the debtor’s employer.2 Many Chapter 13 trustees have booklets that explain Chapter 13 from the perspective of debtors, creditors and employers. These materials can be helpful at the prefiling stage to explain Chapter 13 and to facilitate the case.

[4]

The Chapter 13 trustee can be a wealth of information for debtor’s counsel concerning the limits on Chapter 13 practice in a district and the likelihood of success in a particular case.


 

1  11 U.S.C. § 1302(b)(4) provides that the trustee “shall . . . advise, other than on legal matters, and assist the debtor in performance under the plan.” See § 58.4 [ Advise and Assist Debtor ] § 53.5  Advise and Assist Debtor.

 

2  See § 25.2 [ Explaining Chapter 13 to an Employer ] § 27.2  Explaining Chapter 13 to an Employer.