Attorney Frequently Asked Questions (FAQ's)
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- I need MORE TIME to file the schedules or plan. What should I do?
- Section 1221 requires that a chapter 12 plan be filed within 90 days of the petition. Rule 3015 requires that a chapter 13 plan be filed within 15 days of the petition. Both may be extended for cause and on notice as the court may direct. If this is necessary, you will need to file for an extension with the court. This extension must be filed before the above time runs out (90 or 15 days). We cannot advise you on this or approve of it.
Please be aware that in a chapter 13, section 1326 requires the first payment(s) be made not later than 30 days after the earlier of the order for relief (petition) or plan filing. If you receive an extension for the plan and or schedules you do not automatically receive an extension for the payment.
Schedules or plans filed within five (5) days of the 341 meeting will typically require that the 341 hearing be adjourned until a later date. Creditors (and the Trustee) have a right to analyze and review the material you submit. If schedules or plans are submitted at the last minute, this review is not possible. In the event this material is filed within five days of the 341 hearing, the hearing will be adjourned until the next available date. You will still be required to attend the original hearing and provide advance notice to creditors who might attend that the original meeting will be adjourned.
- What will my client need at the 341 MEETING?
- They will need two forms of identification. One should be a governmental issued picture id and another should be proof of social security number.
- How long does a 341 Meeting last?
- Typically from 5-15 minutes. Your clients should be prepared to answer questions about their schedules and their current affairs. The Standing Trustee (or representative) will preside at the meeting. Creditors may appear and be heard.
- I cannot make a 341 meeting what should I do?
- You have at least three options:
1) If you know well in advance, contact the Court immediately. Often the meeting can be rescheduled to an earlier or later date. You will likely need to re-notice all creditors in this event.
2) If you know a knowledgeable attorney that you can familiarize with the case they may appear for you. In that event, the hearing may proceed as scheduled. You will need to file an amended Form 2030 to divulge whatever fee agreement you made with that attorney. See our 341 page for a list of upcoming 341 meetings and attorneys appearing on other cases near the time of your hearing. You may be able to utilize one of these attorneys to assist you.
3) You can arrange with another attorney to appear and request an adjournment. Often this is done as a favor but if there is a fee agreement you will need to amend Form 2030. See our 341 page for a list of upcoming 341 meetings and attorneys appearing on other cases near the time of your hearing. In this event, the debtors need not appear. We will call the meeting but reschedule it to a later date (usually the next regular 341 meeting date for that location). Any creditors that appear will receive notice at the meeting of the rescheduling. Creditors who do not appear need not be re-noticed. If you are aware that creditors are likely to appear, we ask that you notify them of the intended adjourment.
Regardless of which choice you make, please contact our office ahead of time (especially to pre-arrange an adjourment date). Failure to make one of the above three options will likely result in dismissal of the case or reduction of your fees.
If possible, as part of pre-bankruptcy planning, consider the date you file the case on. The 341 Meeting date is scheduled based on date filed. Moving the date you file the case by as little as a week will alter the 341 Hearing date. If your are unfamiliar with the scheduling timeframes, contact the Court.
- I cannot make a HEARING what should I do?
- If you know a knowledgeable attorney that is familiar with the case they may appear for you. Otherwise, contact the court immediately. Often the hearing can be rescheduled.
- Can I appear by phone?
- Typically this is not permitted for a 341 meeting. Please see above question. If you wish to appear by phone for a court hearing please contact the court directly. The Court home page has contact information for setting this up.
- Can my client appear by phone?
- Typically this is not permitted for a 341 meeting. On rare exceptions, the US Trustee will allow this. You will need to contact them directly for authorization and then inform us. Press Here for UST contact information.
- My client is hearing impaired or needs a TRANSLATOR. What should I do?
- Contact the US Trustee to set something up. You will need to contact them directly and then inform us. Press Here for UST contact information.
- My client runs a Business or is Self-Employed. Do I need to do anything different?
- We will need addtional information for someone in business or self employed. We will need:
- Tax returns as required under Sec 1308 for both personal and business if separate.
- Where the business is included in the personal return, we need to see all supporting tax forms and not just the first two pages.
- For a debtor owned business that has its own EIN and files a separate return we want to see those returns in addition to the personal return.
- Business Budget
- A forward looking budget for at least the upcoming year. The budget should take the form of a standard accounting income statement and include all expected income and expenses. The net should correspond to what is shown on their Schedule I.
- An explanation of cash flow issues or seasonality the business is expected to experience.
- Any planned changes/known events.
- Business questionnaire- (see our forms page or click here to be taken to it)
- Trade debt - if incurred, additonal questions will be asked at the 341 Meeting.
- Whether there are employees, sub-contractors or similar.
- Are they current on payroll or sub-contractor obligations
- Have W-2 or 1099’s been filed
- Are they current on withholding, retirement payments etc.,
- Whether any licenses, permits, etc., are required and status.
- Whether insurance is maintained on assets, business liability, worker’s comp or other as needed.
Normal loan and lien documentation is required but in the business case, we will be looking more strictly at whether a loan is business or personal. It will still be case specific but, in general, higher attorney fees may be appropriate for in a business case.
Post confirmation we will look for the debtor/business to provide future tax returns, notice of significant changes in operations, and any loans needed for assets or operations that were not previously divulged.
- My client needs a CAR and or a LOAN. What do I do?
- Please see our forms page or click here to be taken to it.
- How can I get a copy of Local Rules?
- Press HERE to link to Western District of Wisconsin Bankruptcy Court Local Rules.
- Will a CLAIM be PAID AS FILED or as detailed in the PLAN?
- The rules and plan form effective December 1, 2017 indicate that for non-governmental secured creditors the plan directs not only how funds are paid but also the amount paid. If a non-governmental secured claim is for more than the plan contemplates and the creditor does not object to the plan, the plan amount becomes binding and will control over the claim amount. Governmental secured debts will continue to be based on the claim filed. Amounts for priority and unsecured claims likewise are not set in the plan and will be set based on the claim filed. Press Here for a link to case law where confirmation was overturned because of claims filed.
- How does my client make plan payments?
- In this district plan payments are made via a court ordered wage deduction through your client's employer. In rare circumstances the court may allow a direct payment via money order or cashier's check. Payment coupons are avialable on this web site if this has been allowed for your client. That coupon will have our correct mailing address, payee information, and information to ensure payments get applied to your client's case by our bank. If your client is paying by this means (or for initial payments) they may also use TFSBillPay as an alternative way to make payments on line. TFS has an Attorney Portal whereby you can monitor and assit your clients in making their plan payments.
- When must plan payments start?
- Section 1326 spells this out. Typically it is 30 days from the date of the petition or conversion (if previously a Chapter 7). Note that applying for additional time to file schedules or other items required within 15 days of filing does not alter this requirement. In the event schedules and plan are delayed, you should instruct your client to pay directly until the employer wage order takes effect. They can do this directly via money or cashiers check or via TFSBillPay (see above question). TFS has an Attorney Portal whereby you can monitor and assit your clients in making their plan payments.
- Can my debtor pay off the plan early?
- The Bankruptcy Code requires Chapter 13 Plans to last for 36-60 months. Recent case law suggests this is a time commitment, rather than a payment commitment. Therefore, unless this is a 100% Plan, we require below median debtors to remain in the Plan for 36 months, and above median debtors for 60 months, starting from the first Plan payment date.
- What is the Standing Trustee's percentage rate for calculating plans?
- We recommend you use 10% but will accept cases calculated at 7%. The actual rate varies each year. We do not directly control it. The United States Trustee sets the rate based on caseload and expenses. Some years it changes during the year. Typically it is around 4 or 5% but has been as low as 0.1% and as high as 10%. The rate can never exceed 10% by law. If you were to propose a plan at our current rate you would have to seek a plan modification each time the rate changed during the life of the plan. Recently for a three year plan you would have had to have done this seven times for each of the plans you filed. Because this is not practible, we will not recommend confirmation on any plan doesn't allow the rate to float as set by the United States Trustee or that proposes a rate less than 7%.
- When does interest start being charged on a claim?
- Absent a directive in the plan or other document, in a Chapter 13 interest will start to accrue from the date the petition is filed. In a Chapter 13 converted from Chapter 7, the conversion date would be used. In a Chapter 12 interest will start to accrue from the effective date the plan is confirmed by the court.
- My debtor has Mortgage Arrears. What can I do?
- If the debtor is financially able, mortgage arrears can be paid thru the plan. Arrears are typically not paid interest. Starting in July 2013, the Chapter 13 Mortgage Modification Mediation Program in the Western District (MMMWD or MMMP) started. The MMMP is a program to help qualified debtors negotiate with their lenders to keep their home. Click Here for more information.
- How can I get client tax returns and other information from the IRS?
- Tax returns the most recent year must be filed with the trustee's office in a PDF format. The IRS now has an E-Service whereby you can download a copy of your client's returns to file with the trustee. First you must register with the IRS and obtain clearance and a password. Then for each of your clients you provide proof of power of attorney or release to access their tax records. Once this is done, downloading the forms is a simple click. This could be much more efficient for you than scanning client forms or asking them multiple times for information. Click here to download a PDF handout prepared by Roy Block of the Milwaukee IRS office summarizing the steps for registering and using the service.
- Can I get the stub of my check sorted differently?
- Yes, you can have the individuals on your check stub sorted by your Account number, Case number, or Last name. The default is last name. Please contact us if you would like to change it.
- What local rules or practice pointers are there for this district?
- This district has minimal local rules. Please click hereto go to the local rules on the court web site. Click here for a list of practice pointers that generally apply to cases in this district. Click here for a list of plan tips pertaining to the local plan for this district.
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