Crucial Question: If I File Bankruptcy Do I Have to Appear in Court?

Wasson and ThornhillBankruptcy Procedure

Almost never. You do need to attend a 5-to-10-minute meeting, accompanied by your attorney, which is usually straightforward.

 

The Bankruptcy Court

Your bankruptcy case is filed in and administered by the U.S. Bankruptcy Court. That’s because the U.S. Constitution gave the federal government the right and responsibility to create bankruptcy laws. But you will likely never see the inside of the Bankruptcy Court, nor will you likely ever meet the bankruptcy judge assigned to your case.

Chapter 7 “Straight Bankruptcy”

Most Chapter 7 cases involve 1) the filing of the bankruptcy petition and a bunch of related papers; 2) the so-called “Meeting of Creditors” about a month later, primarily to determine if your have any unprotected assets for the trustee to take on behalf of the creditors; and 3) the discharge of your debts two months later.

The “Meeting of Creditors” is actually most often nothing more than a meeting between you, your attorney, and the Chapter 7 trustee. In most cases, everything you own is “exempt,” protected, and the “Meeting” is to verify that fact to the trustee’s satisfaction. It is not an exaggeration that some trustees manage to do that in the most straightforward cases in less than five minutes. The “Meeting” seldom takes longer than ten minutes.

But although the “Meeting” is not a court hearing, it MUST be taken seriously. You have to attend, or your case will be dismissed—thrown out. You will be put under oath. You should be prepared (by your attorney) so that you know the kind of questions that will be asked.

Do Creditors Attend the “Meeting of Creditors”?

Especially under Chapter 7, creditors seldom attend. They can show up, and occasionally one does. Very seldom more than one. Don’t be worried about you in a room full of your creditors!

And if one does attend, it is often there in part for your convenience, for example, a vehicle loan creditor attending to negotiate and complete the “reaffirmation agreement” so that you can keep your vehicle.

Non-Dischargeability Challenges

Creditors can also attend to ask questions at the “Meeting of Creditors” related to your ability to discharge (write-off) the debt. A creditor is usually permitted only a few minutes of questioning. However, it can ask for another opportunity to question you further about the debt and your circumstances in taking out the debt. They are doing this to help determine if the facts would support a challenge to your intent to discharge your debt to the creditor.

Such challenges are uncommon, but it’s one of the reasons you have an attorney to prepare your documents accurately and in the best light, and to defend you if necessary.

If a creditor does formally such a challenge to your ability to discharge its debt, it does through what is in effect a specialized lawsuit within bankruptcy court raising that legal issue.  Those lawsuits are almost always settled, and often without any court hearings. But in rare cases such challenges can go all the way to a bankruptcy court trial. In those situations, you would likely have to go to the Bankruptcy Court for the trial and possibly for other hearings.  But truly, that would be highly unusual.

We emphasize again, in most cases no creditors show up at the Meeting of Creditors to ask questions. And if one does, that still very seldom turns into a situation requiring you to go to court.

Chapter 13 “Adjustment of Debts”

Straightforward Chapter 13 cases involve 1) the filing of the bankruptcy petition and related papers, including the “plan,” your proposal about who will be paid, how much, and when; 2) the so-called “Meeting of Creditors” about a month later, primarily to determine if the provisions of the proposed “plan” are appropriate according to the trustee and the creditors; 3) the “confirmation hearing,” in which the bankruptcy judge “confirms,” or approves, the “plan,” which may have been amended in the meantime to meet any concerns of the trustee and creditors; 4) three to five years of payments the debtor makes to the trustee for distribution of the creditors under the provisions of the “plan”; and 5) the discharge of any remaining debts at the completion of the case.

Among these steps only the “confirmation hearing” is a court hearing. But that is attended by your attorney on your behalf, almost always without you needing to attend.

The discussion about the “Meeting of Creditors” above in the context of Chapter 7 mostly also apply to Chapter 13 cases, except that the “meeting” is generally a little longer, and it’s somewhat more likely that a creditor or two will attend. The provisions of the Chapter 13 “plan” give more material to discuss with the trustee and more reasons for creditors to attend. But it’s still not a court hearing.

Other Court Events under Chapter 13

Because a Chapter 13 case lasts for years, things can come up during the course of the case requiring Bankruptcy Court involvement. If your circumstances change and you need to amend the terms of your “plan,” that “amended plan” will need court approval. If you do not make your payments on time on debts with collateral (your home, vehicle, etc.), the creditor can ask the Bankruptcy Court for permission to foreclose on or repossess the collateral.

Some of these kinds of procedures involve court hearings, some do not. Most which do, usually don’t require your presence there.

The Bottom Line

Under both Chapter 7 and 13 you need to attend a “Meeting of Creditors,” a formal but relatively relaxed meeting with your bankruptcy trustee lasting only a few minutes. Under both types of case you will not likely need to attend any court hearing, although under Chapter 13 there is a “confirmation hearing” and perhaps other ones, but you will not likely need to attend any of them.