Cite as: Keith M. Lundin, Lundin On Chapter 13, § 43.8, at ¶ ____, LundinOnChapter13.com (last visited __________).
The lender coalition that supported BAPCPA got everything they wanted with respect to representation and appearances at the meeting of creditors. As amended by BAPCPA, § 341(c) contains this new provision:
Notwithstanding any local court rule, provision of a State constitution, any otherwise applicable nonbankruptcy law, or any other requirement that representation at the meeting of creditors under subsection (a) be by an attorney, a creditor holding a consumer debt or any representative of the creditor (which may include an entity or an employee of an entity and may be a representative for more than 1 creditor) shall be permitted to appear at and participate in the meeting of creditors in a case under chapter 7 or 13, either alone or in conjunction with an attorney for the creditor. Nothing in this subsection shall be construed to require any creditor to be represented by an attorney at any meeting of creditors.1
Limited only to creditors holding “consumer debt,” new § 341(c) authorizes creditors to appear at and participate in meetings of creditors in Chapter 13 cases “alone” or “in conjunction with an attorney.” Any “representative of the creditor” can appear at and participate in a meeting of creditors in a Chapter 13 case either alone or in conjunction with an attorney and the representative of a creditor may include “an entity or an employee of an entity.” A representative for a creditor may represent more than one creditor, alone or in conjunction with an attorney. And these new rules apply notwithstanding any requirement of representation by an attorney in any local rule, state constitution, nonbankruptcy law or other requirement.
It’s hard to imagine a broader empowerment for creditors to appear and participate at meetings of creditors in whatever manner they choose. “Consumer debt” is a defined term that means “debt incurred by an individual primarily for personal, family or household purpose.”2 “Entity” is also defined to include “person, estate, trust, governmental unit, and United States trustee.”3 Putting aside that the U.S. trustee is authorized by new § 341(c) to appear at and participate in a meeting of creditors on behalf of a creditor holding a consumer debt, the new section clearly aimed to empower creditors to appear and participate at § 341 meetings through individuals, through employees and through entities such as corporations or partnerships.
Although it is not immediately obvious how it would be done, § 341(c) permits a non-corporeal creditor—a corporation, for example—holding a consumer debt to appear and participate at a § 341 meeting in a Chapter 13 case through a non-corporeal entity. In other words, in the zeal to authorize consumer creditors to appear and participate in meetings of creditors without attorneys, there is no requirement in § 341(c) that the representative of a creditor be an actual individual. This could be really interesting. In any case, it seems clear that § 341(c), as amended, overrules reported cases that required creditors to appear through counsel at the meeting of creditors.4