§ 43.4 — What to Do If Debtor Is Not Able to Attend in Person
Revised: August 10, 2009
The Code makes no exception to the mandate that the debtor “shall appear and submit to examination . . . at the meeting of creditors.”1 Debtor’s counsel will eventually face situations in which a debtor is unable to attend the § 341 meeting. There will be debtors who, by reason of age or infirmity, physically cannot attend the meeting. Other debtors—for example, a member of the armed services assigned to duty overseas or a debtor in prison—may eventually be able to attend a § 341 meeting, but the timing is problematic.
A timely motion and convincing affidavit are the best defense for a debtor unable to attend the § 341 meeting as scheduled. As mentioned above,2 although the Code is not clear, bankruptcy courts entertain motions to continue § 341 meetings notwithstanding that the U.S. trustee has statutory authority to schedule the meeting.3
When the issue is not timing—that is, the debtor needs an alternative to physical appearance, not just rescheduling—a motion in advance of the meeting of creditors is again the best approach. As explained by one bankruptcy court, there are circumstances when it doesn’t make sense that the mandatory language in § 343 would preclude access to Chapter 13 for a debtor not physically able to attend the meeting of creditors:
[I]t would be absurd to construe the mandatory language of § 343 to mean that the Court lacks any discretion to excuse appearance, because § 109 concerning eligibility and § 727 concerning denial of discharge include no requirement of appearance at the § 341 meeting, which suggests that Congress did not intend to “strip the bankruptcy court of all discretion to excuse an individual debtor’s appearance at a § 341 meeting, at least where such appearance would be impossible or utterly pointless.” . . . [T]he Bankruptcy Code and the FRBP are silent as to the manner in which such appearances must be made . . . . Where, as here, there may be no real reason why a telephone or video meeting should not suffice, under the particular facts of this case, the courts should not elevate the requirement that a debtor appear at a second § 341 meeting in a converted bankruptcy case into a moral issue.4
Clever counsel and receptive courts have engineered the conduct of § 341 meetings by telephone. Upon proper application and notice to creditors, meetings of creditors have been accomplished by written interrogatories. Some courts will waive the debtor’s personal appearance on appropriate affidavits by the debtor when no creditor objects to confirmation of the proposed plan.5
One reported decision suggests that Chapter 13 debtors face a substantial burden to prove an adequate excuse for missing the § 341 meeting. In In re Hall,6 the debtor failed to appear “because he needed to be out of town for work and couldn’t afford to miss several days of salary.” The bankruptcy court denied the debtor’s motion to reschedule the § 341 meeting, explaining that the debtor “failed to demonstrate exceptional circumstances which would excuse his attendance from the 341 meeting. . . . All debtors are required to be absent from work or other obligations to appear for the 341 meeting.”7
A recurrent problem is the husband-and-wife case in which only one spouse is able to appear at the § 341 meeting. Some courts allow both cases to proceed if the spouse able to attend satisfies all interested parties’ needs for information. Other courts confirm only the attending spouse’s case, though the effect on creditors may be the same as if both spouses attended and both cases were confirmed. Counsel might try an affidavit or declaration from the spouse unable to attend stating an agreement to be bound by the answers given by the attending spouse.
1 11 U.S.C. § 343.
2 See § 42.1 [ Timing and Procedure ] § 43.1 Timing and Procedure.
3 See United States Trustee v. Vance, 189 B.R. 386, 389–92 (W.D. Va. 1995) (“There is no question that the scheduling of creditor’s meetings is ordinarily the task of the U.S. trustee. . . . This allocation of duties does not, however, preclude the possibility that a bankruptcy judge may choose to exercise control in an area which was assigned by the Code to the U.S. Trustee. . . . [N]o provision of the Code expressly addresses a Bankruptcy Court’s authority to continue a Chapter 13 creditor’s meeting. . . . The court holds that the general grant of power to a Bankruptcy Court under § 105(a) includes the power to issue orders continuing creditor’s meetings.”).
4 In re Henson, 302 B.R. 884, 889–91 (Bankr. N.D. Cal. 2003).
5 See In re Perskin, 9 B.R. 626 (Bankr. N.D. Tex. 1981).
6 266 B.R. 659 (Bankr. W.D. Ky. 2001).
7 266 B.R. at 660.