Rules and Procedures to Follow When a Debtor is Not  Available to Attend 341 Meeting in Person


PROCEDURE:

Non-Attendance

The debtor or, in the case of a partnership or corporation, a designated representative of the partnership or corporation, must attend the meeting of creditors in person, with very limited exceptions as discussed below. This is true even if no creditors attend. Neither the trustee nor the United States Trustee may waive the requirement for the appearance of the debtor at the meeting. When spouses have filed jointly, the Bankruptcy Code requires both debtors to attend the meeting.

11 U.S.C. Section 341, Fed.R.Bankr.P. 2003(b).

There may be local rules or United States Trustee procedures which provide alternatives in extenuating circumstances for the debtor’s personal appearance at the meeting. The circumstances may include military service, terminal illness, disability, or incarceration. The trustee must comply with these procedures and requirements.

28 U.S.C. Section 586, Soldiers and Sailors Relief Act.

Depending on local rules and United States Trustee requirements, alternatives to the debtor’s attendance at the meeting in person include a telephonic meeting or video conference under oath. Written interrogatories may be used only in extreme circumstance where telephone and video alternatives are not possible.

When the debtor cannot personally appear before the trustee, arrangements must be made for an independent third party authorized to administer oaths to be present at the alternate location to administer the oath and to verify the debtor’s identity and social security number. Examples of individuals who may serve in this capacity include: employees of the United States Trustee or bankruptcy trustees situated in the debtor’s locale; court reporters; notaries; or others authorized by law to administer oaths in the jurisdiction where the debtor will appear.

A “Declaration Regarding Administration of Oath and Confirmation of Identity and Social Security Number” shall be completed by the individual performing this function. A sample declaration is provided in the Supplementary Materials [this is in the trustee handbook]. The “declarant” shall indicate on the form the type of original documents used for proof.

When a debtor fails to appear under circumstances not excused by local rule or United States Trustee requirements, the trustee must take appropriate action, which includes:

a. Continuing the meeting to another calendar date and notifying the United States Trustee, if requested, of the new date;

b. Filing a motion to dismiss or convert the case; or

c. Following other appropriate procedures as required by the United States Trustee or local rules.

11 U.S.C. Section 341, 28 U.S.C. ? 586, Fed. R. Bankr. P. 2003(b).


LOCAL PROCEDURE

Notes from Office of the US Trustee Austin, Texas

"...if the process below [above] is followed, our office can facilitate scheduling a telephonic appearance for a meeting in another UST office, but the debtor is responsible for providing the information, not the trustee and not the UST. If needing the UST’s assistance in setting up this telephonic appearance, debtor needs to provide all the necessary scheduling information. The declaration if the trustee wants one would be helpful in case that turns into a scheduling issue for the remote location. And I’d still like to know why the debtor can’t appear where the meeting is scheduled. "

"...our current office procedure is set and that is, once debtor and trustee have complied with the requirements below [above] and determined that the UST’s office needs to be involved, you should contact [email protected]. Please copy me [email protected] at the same time and I will comment if the UST has any issue, or is aware of any other party in interest has an issue, with an alternative appearance. "