Cite as: Keith M. Lundin, Lundin On Chapter 13, § 56.4, at ¶ ____, LundinOnChapter13.com (last visited __________).
The controversy whether creditors could be represented at § 341 meetings of creditors by agents who were not lawyers1 is laid to rest by BAPCPA amendments to § 341(c):
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 [11 U.S.C. § 341(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.2
After BAPCPA, there is no doubt that creditors in any form—corporations, partnerships, governments, etc.—that hold consumer debts can appear and participate at a meeting of creditors in a Chapter 13 case through representatives with or without an attorney. “Consumer debt” is defined as debt “incurred by an individual primarily for a personal, family or household purpose.”3 “Representative” is partially defined by new § 341(c) to include “an entity or an employee of an entity.” The term “entity” is broadly defined to include “person,”4 and “person” includes individual, partnership and corporation.5
This chain of definitions has the result that the “representative” that can appear on behalf of a creditor with a consumer debt at a meeting of creditors is just about anyone or anything.6 It is not immediately obvious how a noncorporeal entity would be a representative, but the literal wording of § 341(c) allows exactly that. And new § 341(c) permits a representative to appear and participate on behalf of any number of creditors.
Attending the meeting of creditors—either in “person” or through a representative—may be somewhat more useful for creditors after the 2005 rewrite of Bankruptcy Rule 4002. Detailed elsewhere,7 Interim Rule 4002(b) requires every Chapter 13 debtor to bring financial information to the meeting of creditors—including evidence of current income and statements for bank accounts, brokerage accounts and the like. Together with tax returns BAPCPA requires the debtor to provide to the trustee and to timely requesting creditors,8 it is likely there will be more information floating around at the meeting of creditors than under prior practice. The Advisory Committee on Bankruptcy Rules has offered the view that materials provided to the trustee will not be made available to creditors at the meeting of creditors.9 Presumably, the trustee will be able to question the Chapter 13 debtor about tax returns and other financial information that only the trustee has actually reviewed. Creditors attending the meeting of creditors may benefit from more informed questioning by the trustee. Also, a particularly interested creditor can request access to tax returns and other documents in advance of the meeting of creditors that were not so easily gathered by creditors before BAPCPA.10
2 11 U.S.C. § 341(c), discussed in § 399.1 [ Representing Creditors at the Meeting of Creditors ] § 43.8 Representing Creditors at the Meeting of Creditors.
3 11 U.S.C. § 101(8).
4 11 U.S.C. § 101(15).
5 11 U.S.C. § 101(41).
6 See § 399.1 [ Representing Creditors at the Meeting of Creditors ] § 43.8 Representing Creditors at the Meeting of Creditors.
7 See § 400.1 [ New Debtor Duties at the Meeting of Creditors ] § 43.2 Debtor Duties at Meeting of Creditors after BAPCPA.
8 See 11 U.S.C. § 521(e) and (f) and Interim Bankr. R. 4002(b)(3), discussed in § 42.4 Tax Return Duties—In General, § 42.5 Tax Return Duties Seven Days before First Scheduled Meeting of Creditors, § 42.6 Tax Return Duties One Day before First Scheduled Meeting of Creditors, § 42.7 Tax Return Duties—On Request and § 42.8 Consequences of Failure to File or Provide Tax Returns.
9 Committee Note, Interim Bankr. R. 4002.
10 See §§ 392.1 [ Tax Return Duties—On Request ] § 42.7 Tax Return Duties—On Request and 424.1 [ New Rights to Documents and Information ] § 56.6 Rights to Documents and Information after BAPCPA for discussion of the new powers of creditors to request information from Chapter 13 debtors and from the court.