Cite as: Keith M. Lundin, Lundin On Chapter 13, § 56.2, at ¶ ____, LundinOnChapter13.com (last visited __________).
The Chapter 13 trustee can be an invaluable source of aid and comfort or an incredible obstacle to creditors. The creditor’s best hope for success in dealing with the trustee is through cooperation and understanding of the trustee’s operating procedures. The Chapter 13 trustee does not represent the interests of the general creditors in the same way as a Chapter 7 trustee would,1 but the Chapter 13 trustee is a fiduciary, and creditors should expect the highest performance and cooperation from the trustee.
Creditors are rewarded in the long run by knowing the trustee’s procedures and working within those procedures to the extent consistent with reasonable protection of their rights. This includes picking fights carefully—the creditor that flails away with motions and objections in every Chapter 13 case will quickly be classified for special handling by the trustee and the trustee’s staff. Most Chapter 13 cases are routine, and the outcome for creditors is easily predicted. Saber rattling by a creditor in every case will not produce better outcomes. More likely, it will disincline the Chapter 13 trustee to be helpful in the unusual cases that benefit from special attention.
The Chapter 13 trustee has an affirmative duty to be accountable to creditors and responsive to creditors.2 In some jurisdictions, physical access to the trustee’s staff and the trustee’s records is limited by time of day, by form of inquiry or by the requirement of a fee to cover the costs of a record search. Creditors must learn and use the trustee’s procedures. An obstreperous creditor or counsel will have to deal with the same trustee and the same employees of the trustee in case after case. Respect for the trustee’s office procedures and staff is most likely to get a creditor the information and assistance needed.
Enlisting the Chapter 13 trustee in a preconfirmation attack on eligibility or a preconfirmation request for conversion or dismissal can save the creditor much expense and enhance the strength of the attack. Before filing a preconfirmation motion for conversion or dismissal or an attack on eligibility, creditor’s counsel should consult with the Chapter 13 trustee and seek the trustee’s participation. Often the Chapter 13 trustee has direct access to the information necessary to prove cause for preconfirmation conversion or dismissal or to demonstrate ineligibility.3
1 See, e.g., the trustee’s duty to advise and assist the debtor, discussed in § 58.4 [ Advise and Assist Debtor ] § 53.5 Advise and Assist Debtor.
2 See 11 U.S.C. § 1302.
3 For example, that the debtor has failed to commence making timely payments as required by 11 U.S.C. § 1326 would be most directly determined from the Chapter 13 trustee. See § 43.4 [ Consequences of Failure to Commence Payments ] § 44.4 Consequences of Failure to Commence Payments.