Cite as: Keith M. Lundin, Lundin On Chapter 13, § 30.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
Counsel must ask the debtor for all married names, maiden names, surnames, nicknames, trade names, “doing business as” names, and all abbreviated forms of any of the above that the debtor may have used during the eight years prior to the date of the petition. This information must be included in the caption of the petition,1 and omission of any name used by the debtor may affect discharge.2
If a debtor becomes aware that the statement of social security number submitted under Rule 1007(f) is incorrect, the debtor shall promptly submit an amended verified statement setting forth the correct social security number. The debtor shall give notice of the amendment to all of the entities required to be included on the list filed under Rule 1007(a)(1) or (a)(2).6
Some debtors have had more than one social security number. Counsel will need social security numbers for the debtor and the debtor’s spouse even if the spouse is not also a debtor. The nonfiling spouse’s social security number does not appear on the petition or on Official Form 21, but counsel will need that number if the spouse’s income is used for funding the Chapter 13 plan7 and to ensure that joint debts are accurately scheduled and noticed to creditors.
The Chapter 13 trustee needs social security numbers to send income deduction orders to employers8 and to ensure that proofs of claim are filed against the correct debtor and that notices to creditors identify the correct debtor.
Creditors need social security numbers to maximize the probability that they have identified the correct debtor.
The importance of accurate names and social security numbers was emphasized by Congress in a backhanded way in the Bankruptcy Reform Act of 1994. Section 225 of the 1994 Act added a new subsection (c) to § 342 of the Bankruptcy Code, which read as follows:
If notice is required to be given by the debtor to a creditor under this title, any rule, any applicable law, or any order of the court, such notice shall contain the name, address, and taxpayer identification number of the debtor, but the failure of such notice to contain such information shall not invalidate the legal effect of such notice.9
The legislative history to this 1994 amendment indicates that “taxpayer identification number” includes the social security number for an individual debtor.10 The last phrase of the 1994 amendment—that the failure to include the debtor’s name, address and social security number on a notice does not invalidate the legal effect of the notice—was curious. The 1994 wording could have been (mis)interpreted to bestow “legal effect” on incomplete or inaccurate notices.
In March of 1995, the Judicial Conference of the United States promulgated new official forms to incorporate the 1994 amendments to the Code. Several official forms were modified to reflect the debtor’s address and social security number in the caption, consistent with § 225 of the 1994 Act.
If notice is required to be given by the debtor to a creditor under this title, any rule, any applicable law, or any order of the court, such notice shall contain the name, address, and last four digits of the taxpayer identification number of the debtor. If the notice concerns an amendment that adds a creditor to the schedules of assets and liabilities, the debtor shall include the full taxpayer identification number in the notice sent to that creditor, but the debtor shall include only the last 4 digits of the taxpayer identification number in the copy of the notice filed with the court.14
The notice of the filing of a Chapter 13 case together with the notice of the § 341 meeting of creditors (Official Bankruptcy Form 9) continue to include the debtor’s full social security number.15 Apparently, the clerk, the Chapter 13 trustee or debtor’s counsel—whoever is responsible for preparing the notice—must use the full social security number from new Bankruptcy Form 21 for the limited purpose of noticing the filing of bankruptcy case, and only the last four digits of the debtor’s social security number for all other purposes.
1 See Official Form 1, discussed in §§ 34.2 [ Petition, Signed by the Debtor ] § 36.2 Petition, Signed by Debtor—“Wet” Signature Issues and 372.2 [ New Caption for Petition ] § 36.3 Caption for Petition.
2 See § 349.1 [ Claims Not Provided for by the Plan or Disallowed under § 502 ] § 158.5 Claims Not Provided for by the Plan or Disallowed under § 502.
3 See, e.g., In re Ellett, 328 B.R. 205, 207 (E.D. Cal. 2005) (When schedules included improper social security number, and plan did not “provide for” California Franchise Tax Board, tax debt was not discharged. “A Chapter 13 discharge is limited to debts ‘provided for by the plan.’ . . . ‘[T]he phrase “provided for” . . . simply requires that for a claim to become dischargeable the plan must “make a provision for it”, i.e., deal with it or refer to it.’ Lawrence Tractor Company v. Gregory, 705 F.2d 1118, 1122 (9th Cir. 1983) . . . . [H]owever, simply making a provision for the debt alone is insufficient; a claim is not ‘provided for’ unless the creditor is notified in a timely manner of the bankruptcy proceeding.”), aff’d, No. 05-16677, 2007 WL 3132404, at *1–*2, *6 (9th Cir. Oct. 29, 2007) (“[D]ue to Mr. Ellett’s negligence in listing an erroneous SSN on his bankruptcy petition and § 341(a) notice, proper notice was not provided to the FTB. Consequently, Mr. Ellett’s Chapter 13 plan did not ‘provide for’ the FTB taxes.” Incongruously, the Ninth Circuit states, “The FTB received the § 341(a) notice regarding the commencement of Mr. Ellett’s bankruptcy action,” and “the FTB did not learn of Mr. Ellett’s bankruptcy proceedings until after the claims bar date had passed.” The FTB had a procedure to determine whether a debtor owed taxes when the name and the SSN on a bankruptcy notice did not match up, but this procedure “was used infrequently, if at all, due to resource limitations when Mr. Ellett filed for bankruptcy.”).
4 Fed. R. Bankr. P. 1007(f). See § 34.4 [ Statement of Social Security Number ] § 36.6 Statement of Social Security Number.
5 See § 34.4 [ Statement of Social Security Number ] § 36.6 Statement of Social Security Number.
6 Fed. R. Bankr. P. 1009(c).
7 Official Form B22C, the Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income, requires both spouses’ income even when only one is filing. See §§ 379.1 [ Form B22C: Statement of Current Monthly Income ] § 36.19 Form 122C-1: Statement of Current Monthly Income–380.1 [ Form B22C: Disposable Income Calculation ] § 36.21 Form 122C-2: Disposable Income Calculation and 473.1 [ Accounting for Spouses ] § 94.3 Accounting for Spouses.
9 11 U.S.C. § 342(c), as amended by Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 225, 108 Stat. 4106 (1994).
10 See 140 Cong. Rec. H10,769 (daily ed. Oct. 4, 1994) (section-by-section analysis by Congressman Brooks) (“This section amends § 342 of the Bankruptcy Code to require that notices to creditors set forth the debtor’s name, address, and taxpayer identification (or social security) number.”).
11 See above in this section, and see §§ 34.2 [ Petition, Signed by the Debtor ] § 36.2 Petition, Signed by Debtor—“Wet” Signature Issues and 34.4 [ Statement of Social Security Number ] § 36.6 Statement of Social Security Number.
12 See Fed. R. Bankr. P. 1007(f); Official Bankr. Form 21.
13 Pub. L. No. 109-8, 119 Stat. 23 (2005).
14 11 U.S.C. § 342(c), as amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (2005).
15 See Fed. R. Bankr. P. 2002(a)(1).