§ 36.5     List of Creditors—DSOs and § 342 Considerations
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 36.5, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

The mandate in § 521(a)(1)(A) that the debtor file “a list of creditors”1 is not modified by BAPCPA, but the content of that list is changed by BAPCPA amendments to other sections of the Code.

[2]

Section 219 of S. 256—entitled “Collection of Child Support”—imposes new duties on Chapter 13 trustees to give special written notices to the holder of a domestic support obligation (DSO) and to the state child support collection agency.2 The new notices must include the name, address and telephone number of each holder of a DSO.3

[3]

The Chapter 13 trustee is responsible for giving these new notices but there is no source for the details such as the telephone number of a DSO holder unless that information is supplied by the debtor in the list of creditors or in the schedules. It is anticipated that the Judicial Conference Rules Committee will specify a place for debtors to supply this special information about DSOs somewhere in the Official Forms. Until that happens, debtors’ counsel should get in the habit of including on the list of creditors the name (other than a minor child), address and telephone number of the holder of any DSO.

[4]

Preparation of the list of creditors required by § 521(a)(1)(A) is complicated by the new statutory notice provisions in § 342. Detailed elsewhere,4 BAPCPA amended § 342 to define effective notice in some circumstances based on several special addresses: a correspondence address supplied by a creditor in two communications within the 90 days before filing bankruptcy;5 an address requested by a creditor in a filing that is also served on the debtor in a particular bankruptcy case;6 and an address request filed by an entity in any bankruptcy court that is for use in all bankruptcy courts or in particular bankruptcy courts as specified by the creditor.7 There is also the possibility that a creditor has designated a person or organizational subdivision to receive notice in bankruptcy cases under § 342(g)(1).8

[5]

The new notice provisions in § 342(g) sometimes apply to notices by the debtor, sometimes to notices by the court and sometimes to notices by both. All of the new notices described in § 342 are applicable sometimes in Chapter 13 cases. If the new notice provisions in § 342 are not respected, notice by the debtor or the bankruptcy court is “not effective” until “brought to the attention” of the creditor.9

[6]

As amended, § 342 puts a significant premium on gathering the correct names and addresses for use on the list of creditors and schedules filed in Chapter 13 cases. If, in the past, completing the list of creditors involved collecting debt payment information and the like from the debtor, now debtors’ counsel must dig more deeply into the papers debtors bring in to find the correspondence addresses that have been supplied to the debtor. Debtors’ counsel will have to accumulate information about specific creditor address requests that have been filed—not just in the home court but in any court in which a lender has designated an address for bankruptcy notices. The effectiveness of notices given by the debtor or the court will depend on finding and listing the names and addresses that work for § 342 purposes.

[7]

BAPCPA puts new importance on the last four digits of the debtor’s taxpayer identification number. Under § 342(c)(1) as amended, a notice that is “required to be given by the debtor to a creditor” must contain the name, address and last four digits of the taxpayer identification number of the debtor. When preparing the list of creditors and the schedules, debtors’ counsel wants to avoid errors in either direction—failing to list a taxpayer I.D. or listing too many digits. BAPCPA eliminated the enigmatic phrase in former § 342(c) that “the failure of such notice to contain such information [the social security number] shall not invalidate the legal effect of such notice.”10 The door is at least open to a creditor’s argument that omission (overstatement?) of the last four digits of the debtor’s social security number on a notice from the debtor renders the notice not effective.

[8]

Section 342 deals only with notice in bankruptcy cases. There is nothing in § 342 as amended by BAPCPA that changes the effect of Bankruptcy Rule 7004 with respect to service of a motion that commences a contested matter under Bankruptcy Rule 9014. As detailed elsewhere,11 Bankruptcy Rule 7004 requires more information in the address for service of a motion in a contested matter than is ordinarily available from the list of creditors. A list of creditors that is sufficient for purposes of giving effective notice under § 342 may not be sufficient, for example, to serve a corporation by mail under Bankruptcy Rule 7004(b)(3). When a creditor has designated a person or organizational subdivision for purposes of notice under new § 342(g)(1) but the person or organizational subdivision is not an officer, managing or general agent or other agent authorized to receive service of process,12 more or different information will be needed to serve the creditor than to give effective notice to the creditor.

[9]

Section 342, as amended by BAPCPA, says nothing about the method of delivery of notice. Electronic notice via ECF or notice by first-class mail remain the most common delivery methods in bankruptcy practice. These choices seem not to be affected by § 342 so long as the addresses used are consistent with the new statutory scheme. If the address designated by a creditor consistent with new § 342 is a postal address, it is not obvious that effective notice can be given via the ECF system. But there is nothing in new § 342 to preclude a creditor from designating an electronic address for notice in bankruptcy cases.

[10]

There remains the wrinkle that the 1994 Bankruptcy Amendments rewrote Bankruptcy Rule 7004 to require the use of certified mail and the address of an identified officer to effect service of process on a banking institution in a contested matter or adversary proceeding.13 In various aspects new § 342 defines effective notice with respect to a banking institution but probably tells us nothing about the proper address or the method of delivery necessary to accomplish service on a banking institution in a contested matter or adversary proceeding. Certified mail remains the surest bet, addressed to an identified officer of the institution, even if someone else has been designated for § 342 purposes.


 

1  See § 34.3 [ List of Creditors and Addresses ] § 36.4  List of Creditors and Addresses.

 

2  See 11 U.S.C. § 1302(b)(6) and (d)(1), discussed in § 417.1 [ New Noticing Responsibilities ] § 53.16  Noticing Responsibilities.

 

3  See 11 U.S.C. § 1302(d)(1)(B)(ii).

 

4  See § 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen.

 

5  See 11 U.S.C. § 342(c)(2)(A), discussed in § 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen.

 

6  See 11 U.S.C. § 342(e), discussed in § 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen.

 

7  See 11 U.S.C. § 342(f), discussed in § 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen.

 

8  See 11 U.S.C. § 342(g)(1), discussed in § 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen.

 

9  See 11 U.S.C. § 342(g)(1), discussed in § 365.1 [ Section 342: Notice in Chapter 13 Cases after BAPCPA ] § 4.3  Section 342: Notice What Didn’t Happen.

 

10  11 U.S.C. § 342(c) prior to amendment by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

 

11  See § 34.3 [ List of Creditors and Addresses ] § 36.4  List of Creditors and Addresses.

 

12  See Fed. r. Bankr. P. 7004(b)(3).

 

13  See Fed. R. Bankr. P. 7004(h), discussed in § 34.3 [ List of Creditors and Addresses ] § 36.4  List of Creditors and Addresses.