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The U. S. Trustee — the Behind-the-Scenes Bankruptcy Administrator and Hope-You-Never-Meet Enforcer

In most consumer bankruptcy cases you hardly hear about the United States Trustee (UST). But when you do, he or she can make a lot of noise. And carries a big stick. All the more reason to understand this most easily misunderstood player on the bankruptcy stage.

As my title suggests, the UST has two primary roles—case administrator and bankruptcy law enforcer. These are reflected in this agency’s stated mission: “to promote integrity and efficiency in the nation’s bankruptcy system by enforcing bankruptcy laws, providing oversight of private trustees, and maintaining operational excellence.”

As a bankruptcy case administrator, the Office of the UST appoints and supervises the Chapter 7 and Chapter 13 trustees. It monitors cases so that they are “administered promptly and efficiently.” It reviews and can raise objections to fees charged by attorneys and other professionals in the bankruptcy process.

But it’s the enforcement role we care about, which arises mostly in Chapter 7s. We hear from the UST mostly when there is a question about whether a person in a Chapter 7 case should instead be in Chapter 13. This is mostly a matter of income, and whether the case meets a complex set of rules called the “means test.” The UST may assert that the case is an “abuse” of Chapter 7 law and should either be “dismissed” (thrown out) or “converted” to Chapter 13.

The rest of the time we hear from the UST usually involves some kind of alleged misrepresentation by the person filing bankruptcy. This can arise in many ways, but usually involves apparent contradictory information between the bankruptcy documents and other evidence, or between documents and your oral statements at the “meeting of creditors.” The UST may even receive information from outside parties, such as an ex-spouse or ex-business partner, or from public sources, such as real estate or vehicle ownership records.

Lots of times when we do hear from the UST about any of these things, the matter can be resolved favorably. Assuming that you have been completely honest with us, often we can anticipate and address these issues effectively if and when the UST contacts us. But especially if the challenge comes unexpectedly, it’s crucial to address it quickly, honestly, thoroughly.

Our goal is to have your bankruptcy case go as smoothly as possible, but when for whatever reason it does not, we are in your corner to advise and protect you.

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The Chapter 13 Trustee — A Trustee of Many Hats

Your Chapter 13 trustee plays a huge role in the success or failure of your Chapter 13 case. Except he or she actually has at least a half-dozen different roles. Some of which are contradictory. Let me explain.

1) The trustee serves as the gatekeeper of your case, forcing us to play by the rules before allowing your Chapter 13 Plan to be approved by the bankruptcy judge.

2) As part of that role, the trustee’s job is to make you pay as much as possible to your creditors. Because each individual creditor often doesn’t have all that much to lose or gain compared to the cost of each of them hiring an attorney, the trustee is the creditors’ advocate in your case.

3) The trustee is your disbursal agent, taking in your money and paying it out exactly as your court-approved Plan specifies.

4) During the course of your case, the trustee is your Plan overseer, monitoring your Plan payments and your other obligations, and complaining to the court if you’re not in compliance.

5) The trustee is also your income monitor throughout the course of your case, mostly through annual tax returns that you must file on time and provide to his or her office, and sometimes through additional documentation. If your income rises significantly in a way not provided for in your Plan, the trustee can propose an “Amended Plan” to account for the increase.

6) Through all of this, believe it or not, the trustee is also legally required to be your helper through the Chapter 13 process. The Bankruptcy Code specifically says that the “trustee shall—advise, other than on legal matters, and assist the debtor under the plan.” Different trustees do this quite differently, taking on this helper role more or less seriously. At different points in your case, my staff and I may well suggest that you interact with the trustee’s office in certain specific ways. Always remember that they have a bunch of other roles besides helping you. But also note that on a personal level, the trustee genuinely wants you to have a successful Chapter 13 case, and can sometimes be a good resource to help get you there.

Here’s a good final word on this, from the website of one of the Chapter 13 trustees:

“The role of the chapter 13 trustee is unique. The trustee does not take into his or her possession or control property of the estate. The trustee does not operate the debtor’s business. Rather, the trustee receives payments from the debtor, and disburses those payments to the debtor’s creditors pursuant to the debtor’s plan. The chapter 13 trustee does, however, counsel with and advise the chapter 13 debtor on all matters relating to the plan other than legal matters. In short, the chapter 13 trustee is an amalgam of social worker and disbursing agent.”

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A Happy Chapter 7 Trustee Means a Happy Chapter 7 Case

My goal with our Chapter 7 clients is to provide a smooth path through bankruptcy to a fresh and clean start. The way to get there is to do what it takes to keep your Chapter 7 trustee happy. We keep the trustee happy by making it easy for him or her to do his or her job.

Think about the trustee being the green-yellow-red lights at two intersections in a row. The first intersection is about assets. The second one is about getting a “discharge,” a legal write-off of your debts. In most cases you’re going to get through both intersections—the trustee will claim none of your assets for distribution to your creditors and the trustee will raise no objections to your discharge. But you want to make sure you get through those intersections, and do so without any worry or delay. That’s our goal—two easy green lights.

The trustee can hit you with yellow caution lights or even prolonged red lights if you do not deal responsibly with your case. You may even lose assets that you did not expect to or, in unusual circumstances, lose your right to a discharge of your debts altogether. Here’s how to keep the trustee happy, and turning on those green lights:

1. Be completely honest and thorough with your attorney. If in doubt, tell me about it. Take the weight off your shoulders and tell me if you’re worried about something. I am on your side. That’s my job. I cannot do my job to protect you if I am blindsided by unexpected facts. And you can imagine how much the trustee is going to trust you if he or she sees that you’re not being honest with your own attorney.

2. When you review and sign the bankruptcy documents, don’t forget to take the “review” part of that very seriously. You are signing most of those documents under penalty of perjury. The trustee relies on their accuracy, and will be quite unhappy to later learn that they are incomplete or inaccurate in some material way. If in doubt about anything, ask me or my staff.

3. Provide information or documents we request from you as quickly as possible. Some of those go directly to the trustee. In most cases the trustee gets paid a measly $60 per case out of your filing fee. Helping to make the job easier for the trustee simply by getting the paperwork to him or her on time goes a long way towards having a happy trustee.

4. At the “meeting of creditors” (which is usually just a short hearing with the trustee), again be completely honest in answering the trustee’s questions. If you have any doubt, ask your attorney who will be with you there.

5. Finally, do what the trustee says. And do so by the deadline provided.

Let’s sail through your Chapter 7 case with two green lights!

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