the 341 meeting in an individual’s chapter 7 Case: preparation, attendance and follow up
Lori Lapin Jones
Lori Lapin Jones PLLC The author gratefully acknowledges the assistance of Rachel Blumenfeld, Esq. and Rachel Corcoran, Esq. in the preparation of this article.
INTRODUCTION Section 341(a) of the Bankruptcy Code provides that “the United States Trustee shall convene and preside at a meeting of creditors.” In Chapter 7 cases, the United States Trustee appoints a Chapter 7 Trustee (usually from the panel of trustees) to preside over and conduct the meeting of creditors. This meeting is commonly referred to as the “341 Meeting.”
Section 343 of the Bankruptcy Code provides that “[t]he debtor shall appear and submit to examination under oath at the meeting of creditors under section 341(a) of this title.” There is no provision in the Bankruptcy Code that permits a waiver of the requirement of a debtor to be examined at a 341 Meeting. Although multiple 341 Meetings are scheduled in a single hour, necessitating routines and standard procedures, the 341 Meeting should not be treated by the Chapter 7 debtor or the debtor’s attorney as perfunctory. The 341 Meeting serves as a gateway to the granting of the debtor’s discharge. Conversely, a 341 Meeting could lead the Chapter 7 Trustee to request further documents which may lead to a more in depth investigation.
This article examines: (a) practices and procedures relating to the 341 Meeting; (b) how a debtor’s attorney can prepare for a smooth 341 Meeting; (c) conducting the 341 Meeting; and (d) post-341 Meeting follow up. The article will conclude with an appendix of relevant case law and pertinent statutes.
PRACTICES AND PROCEDURES FOR THE 341 MEETING
The 341 Meeting is scheduled no fewer than 21 days and no more than 40 days
after a voluntary Chapter 7 petition is filed. (See Bankruptcy Rule 2003).
The debtor, debtor’s attorney and all scheduled creditors receive a notice from the
Bankruptcy Court that contains the date, time and place for the 341 Meeting and
Although Chapter 7 Trustees have the discretion to adjourn the 341 Meeting, requests
for adjournments of an initial 341 Meeting should only be made in limited
circumstances. If the adjournment is for longer than a few weeks, the debtor should
expect that the Chapter 7 Trustee will request an extension of the Trustee’s time to
object to the debtor’s discharge since the discharge objection deadline runs from the
first date set for the 341 Meeting regardless of whether the debtor is actually examined
at that time. (See Bankruptcy Rule 4004 (a)).
D. Translators/Hearing Impaired
The 341 Meeting is conducted in English. Recently, the Office of the United States
Trustee has made available to Chapter 7 Trustees a telephone translation service (free
of charge to the Chapter 7 Trustee and the debtor) which allows the Chapter 7 Trustee
to obtain by telephone immediate translation services in numerous languages. In the event
this service is not available and the debtor requires translation, the debtor or debtor’s attorney
must bring a translator to the 341 Meeting. The translator does not have to be certified, but
must be able to speak fluently in both English and the language translated.1 The translator is
sworn in and will be required to translate precisely the questions posed and answers given.
The United States Trustee will arrange for a sign language interpreter for a debtor that
is hearing impaired. The debtor’s attorney should promptly inform the United States
Trustee or the Chapter 7 Trustee in advance of the 341 Meeting if a sign language
interpreter is needed.
E. Debtor’s Unavailability For The 341 Meeting: Medical Condition; Service In Military;
Death Of Debtor Every debtor must be examined at a 341 Meeting and that requirement may not be
waived. With certain limited exceptions, the debtor must appear in person at the 341
Meeting. In the event a debtor is unable to appear in person because of a documented
medical condition, the Chapter 7 Trustee may arrange for a telephonic 341 Meeting. In
that case, a declaration regarding the administration of oath and confirmation of
identity and social security number must be submitted to the Chapter 7 Trustee. This
declaration provides information as to personal identification and the social security
number of the debtor. The form of declaration is supplied by the Chapter 7 Trustee.
Telephonic meetings may also be scheduled for debtors unable to attend the 341 Meeting in
appears at the 341 Meeting, the Chapter 7 case may still continue. (See Bankruptcy
Rule 1016). In that instance, an individual with knowledge of the debtor’s assets,
liabilities and financial affairs should be available to testify at the 341 Meeting.
PREPARATION FOR THE 341 MEETING A. Submissions Prior To 341 Meeting
As soon as practicable after the Chapter 7 petition is filed, the debtor or debtor’s
attorney should submit to the Chapter 7 Trustee the following:
A signed copy of the Chapter 7 petition (complete with all schedules and the statement of financial affairs). The petition should not reflect the debtor’s signature as /s/.
Copies of all payment advices/pay stubs or other evidence of payment(s) received by the debtor within 60 days before the date of the filing of the petition from any
employer of the debtor. (See Bankruptcy Code § 521 (a)(1)(B)(iv)). If such payment
advices/pay stubs are not available, then the debtor should provide the Chapter 7
Trustee, and file with the Bankruptcy Court, a notarized affidavit of the debtor
explaining the circumstances.
A copy of the Federal income tax return (or a transcript of such return) for the most
recent filed tax year ending immediately before the commencement of the case.
The tax return must be provided to the Chapter 7 Trustee no later than 7 days
before the meeting of creditors. (See Bankruptcy Code § 521 (e)(2)(A)(i)). The
tax return or transcript should not be filed with the Bankruptcy Court.
Note: These requirements do not supersede or replace any of the requirements under
the Bankruptcy Code, Bankruptcy Rules and/or Local Bankruptcy Rules. In
addition, if these documents are not submitted, the Chapter 7 Trustee will not
proceed with the examination at the 341 Meeting and will require that the debtor
return for an adjourned 341 Meeting.
B. Submissions To The United States Trustee
A debtor may receive a letter from the United States Trustee requesting certain documents. The letter will set forth a list of documents and the deadline by which the documents should be submitted to the Office of the United States Trustee. A document request from the United States Trustee is entirely separate from the documents required to be submitted to the Chapter 7 Trustee prior to the 341 Meeting (as listed above) and documents that may be requested by the Chapter 7 Trustee before, during or after the 341 Meeting. It is good practice to supply the Chapter 7 Trustee with copies of the documents supplied to the United States Trustee.
C. What The Debtor Needs To Bring To The 341 Meeting
Each debtor should bring to the 341 Meeting:
original government issued photo identification; and
an original social security card or other original document that reflects the debtor’s social security number.
Generally, without both of these documents, the Chapter 7 Trustee will not proceed with the examination and will require that the debtor attend an adjourned 341 Meeting.
The debtor’s attorney should provide the debtor with ample notice of these requirements. If the debtor lost his/her social security card, the debtor may contact the Social Security Administration to obtain a substitute social security card or substitute proof of the debtor’s social security number.
the additional documents. In those cases, it is common for the Chapter 7 Trustee to
request that the debtor enter into a stipulation to extend the Chapter 7 Trustee’s time
to object to the debtor’s discharge.
It is important to understand that closing the 341 Meeting does not mean that the
Chapter 7 Trustee has completed the administration of the debtor’s case. The Chapter
7 Trustee is free to continue to investigate the debtor after the 341 Meeting is closed,
request documents and require testimony under Bankruptcy Rule 2004, object to the
debtor’s discharge, pursue causes of action against third parties and otherwise
collect or liquidate assets for the benefit of creditors.
H. Failure To Appear At The 341 Meeting
A debtor’s appearance at the 341 Meeting is statutorily mandated. (See Bankruptcy
Code § 343). If the debtor fails to appear at the 341 Meeting, the Chapter 7 Trustee
may file a motion to dismiss the debtor’s case.
FOLLOWING UP AFTER THE 341 MEETING
Document Requests By The Chapter 7 Trustee
It is not uncommon for the Chapter 7 Trustee to request documents or other information from the debtor at the 341 Meeting. The debtor or his/her attorney should endeavor to provide such documents or information sufficiently in advance of the adjourned 341 Meeting date so that the Chapter 7 Trustee has an opportunity to meaningfully review such documents. Document requests that are not complied with might prevent the Chapter 7 Trustee from closing the 341 Meeting or filing a Trustee’s Report of No Distribution. In addition, it may lead to multiple extensions of time to object to the debtor’s discharge which in turn delays the granting of a discharge.
Developments at the 341 Meeting may lead to the need for the debtor to file amendments to the petition, schedules or statement of financial affairs. The debtor’s attorney should move swiftly to file such amendments.
C. Investigation By United States Trustee
The United States Trustee may independently conduct an investigation of the
debtor. That investigation may proceed notwithstanding that the 341 Meeting was
closed. Accordingly, a debtor that receives a request for documents or a subpoena
to appear for an examination from the United States Trustee must comply
regardless of whether the Chapter 7 Trustee is also investigating the debtor or has
under this title, the United States trustee shall convene and preside at a meeting of creditors.”).
Fed. R. Bankr. P. 2003(a) (“[I]n a chapter 7 liquidation . . . , the United States trustee shall call a meeting of creditors to be held no fewer than 21 and no more than 40 days after the order for relief.”).
Scroggins v. BP Exploration and Oil, Inc. (In re Brown Transport Truckload, Inc.), 161 B.R. 735, 738 (Bankr. N.D. Ga. 1993) (recognizing apparent conflict between section 341 and Bankruptcy Rule 2003(a) with respect to timing and holding section 341’s “reasonable time” provision prevails over strict timing requirements of Rule 2003).
1In re Kirkpatrick, 25 B.R. 141, 142 (Bankr. D. N.M. 1982) (holding service of notice on attorney for partnership-creditor sufficient to put partners on notice).
Discretion To Reopen The 341 Meeting; Adjournments Compare1Carlson v. Boucher (In re Boucher), 728 F.2d 1152, 1154–55 (8th Cir. 1984) (finding bankruptcy court has no authority to reopen 341 meeting where creditor-appellant did not receive notice of bankruptcy filing until 341 meeting was completed, but was given opportunity to examine debtors), with1Rusch Factor Division v. Miller (In re Mission Carpet Mills, Inc.), 10 B.R. 494, 495–96 (B.A.P. 9th Cir. 1981) (holding bankruptcy court’s reopening of 341 meeting to permit second largest creditor to file amended proof of claim was within court’s discretion under section 105(a)).
1In re Leies, 81 B.R. 723, 724 (Bankr. S.D. Fla. 1988) (“With the volume of cases being processed by the Bankruptcy Court, it is just not possible to grant motions excusing or rescheduling first meetings of creditors, except in the most extreme and unusual circumstances.”).
The 341 Meeting And Time For Filing Objections To Discharge Fed. R. Bankr. P. 4004(a) (“In a chapter 7 liquidation case a complaint objecting to the debtor's discharge under § 727(a) of the Code shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a).”).
Fed. R. Bankr. P. 4007(c) (“[A] complaint to determine the dischargeability of a debt under § 523(c) shall be filed no later than 60 days after the first date set for the meeting of creditors under § 341(a). The court shall give all creditors no less than 30 days’ notice of the time so fixed in the manner provided in Rule 2002.”).
Compare1Herbert v. Schwartz (In re Schwartz & Meyers), 64 B.R. 948, 953 (Bankr. S.D.N.Y. 1986) (holding proper notice of 341 meeting “to be the necessary predicate and trigger to the running of the 60 day period” for filing objections to dischargeability), with 1Neeley v. Murchison, 815 F.2d 345, 345, 347 (5th Cir. 1987) (dismissing creditor’s objection to discharge as time-barred under Rule 4007 despite clerk’s office failing to provide notice as required by same Rule, and noting Rule 4007 “1places a heavy burden on the creditor to protect his rights”).
Compare1Peerless Ins. Co. v. Miller (In re Miller), 228 B.R. 399, 401 (B.A.P. 6th Cir. 1999) (finding creditor’s objection to dischargeability time-barred as made more than 60 days after first date set for 341 meeting despite debtor’s failure to attend first two scheduled 341 meetings), with1St. Pierre v. Little (In re Little), 161 B.R. 164, 168 (Bankr. E.D. La. 1993) (interpreting Rule 4007(c) to mean debtor must have been present at first meeting of creditors for 60 day time period for objecting to discharge under section 523(c) to begin running).
1Ichinose v. Homer Nat’l Bank (In re Ichinose), 946 F.2d 1169, 1173 (5th Cir. 1991) (holding creditor’s objection to discharge time-barred due to misplaced reliance on other creditors’ successful motions for extension of time to object).
Debtor’s Unavailability For The 341 Meeting 1In re Keiser, 204 B.R. 697, 700 (Bankr. W.D. Tex. 1996) (“The law is clear. Appearance at a Section 341 meeting is mandatory. . . . It is not waivable.” (citation omitted)).
1In re Ladner, 156 B.R. 664, 665–66 (Bankr. D. Colo. 1993) (declining to excuse debtor from attending 341 meeting where debtor was called to service in Somalia, but granting stay of debtor’s appearance until his return).
1In re Chandler, 66 B.R. 334, 336 (Bankr. N.D. Ga. 1986) (finding bankruptcy court has discretion to deny debtor’s motion for protective order allowing debtor to not appear at 341 meeting despite debtor’s serious heart condition).
Compare1In re Moore, 309 B.R. 725, 726–27 (Bankr. N.D. Tex. 2002) (rejecting incarcerated debtor’s application to have person with power of attorney appear in his stead at 341 meeting as debtor’s appearance is mandatory), with1In re Sullivan, 30 B.R. 781, 782 (Bankr. E.D. Pa. 1983) (permitting debtor’s brother, who had power of attorney, to appear is debtor’s stead at 341 meeting where debtor would be out of the country for the next five years).
Compare1In reLoudon, 2008 Bankr. LEXIS 198, Case # 07-10194, at *3–*5 (Bankr. D. Vt. Jan. 16, 2008) (1denying debtor’s application to fulfill 341 examination through submission of written interrogatories due to debtor’s incarceration and holding 1“the burden is on the Debtor to persuade the Court that there are exigent circumstances warranting a waiver of appearance and that no prejudice to the Trustee or estate that would result if he did not appear at the § 341 meeting”), with1In reHenson, 302 B.R. 884, 889 (Bankr. N.D. Cal. 2003) (permitting debtor located in Canada to appear at 341 meeting via telephone or video and recognizing bankruptcy courts have discretion with respect to 341 meetings).
Preparation For The 341 Meeting In re Grasso, 341 B.R. 821, 824–25 (Bankr. D.N.H. 2006) (finding dismissal not warranted where debtor filed tax returns three days prior to 341 meeting and permitting trustee discretion to waive an untimely filing under section 521(e)(2)(A)).
In re Riccardo, 248 B.R. 717, 725 (Bankr. S.D.N.Y. 2000) (dismissing case without prejudice where debtor filed petition using false social security number).
Testimony At The 341 Meeting In re Kincaid, 146 B.R. 387, 389 (Bankr. W.D. Tenn. 1992) (describing 341 meeting as discovery tool and observing that, although under oath and recorded, “[t]estimony of debtors at a bankruptcy meeting of creditors is not admissible as direct evidence in a latter adversary proceeding or contested matter”).
1Quicken Loans, Inc. v. Splawn (In re Splawn), 376 B.R. 747, 760 (Bankr. D. N.M. 2007) (“A debtor's statements contained in his or her bankruptcy petition, schedules, statement of financial affairs, as well as statements at the § 341 creditors meeting and testimony at a Rule 2004 examination all constitute statements made under oath for purposes of § 727(a)(4).”).
1Stathopoulos v. Bostrom (In re Bostrom), 286 B.R. 352, 359 (Bankr. N.D. Ill. 2002) (“If made with the requisite fraudulent intent, a false statement, whether made in the schedules or orally at an 11 U.S.C. § 341 creditors’ meeting, is sufficient grounds for denying a discharge provided it was knowingly made and is material.”).
1Moses v. Allard, 779 F. Supp. 857, 883 (E.D. Mich. 1991) (permitting invocation of Fifth Amendment protection against self incrimination at 341 meeting).
Mandatory Appearance By Debtor’s Attorney 1In re Johnson, 291 B.R. 462, 472 (Bankr. D. Minn. 2003) (requiring debtor’s attorney to repay portion of fee for failure to attend 341 meeting).
1In re Hailey, 21 B.R. 453, 454 (Bankr. N.D. Ga. 1982) (requiring forfeiture of entire fee where neither debtor nor her attorney appeared at 341 meeting).
1In re Landis, 2 B.R. 341, 342 (Bankr. S.D. Ohio 1980) (requiring debtor’s attorney to refund $65 to trustee for failure to render services at 341 meeting).
Duncan v. Garrett (In re Tanksley), 174 B.R. 434, 438 (Bankr. W.D. Va. 1994) (holding appearance on behalf of debtor at 341 meeting constitutes practice of law and enjoining non-lawyer from appearing on behalf of debtors at such meeting).
Non-Attorney Appearances On Behalf Of Creditors At The 341 Meeting 11 U.S.C. § 343 (“The debtor shall appear and submit to examination under oath at the meeting of creditors under section 341(a) of this title. Creditors, any indenture trustee, any trustee or examiner in the case, or the United States trustee may examine the debtor. The United States trustee may administer the oath required under this section.”).
Fed. R. Bankr. P. 9010(a) (“A debtor, creditor, equity security holder, indenture trustee, committee or other party may (1) appear in a case under the Code and act either in the entity's own behalf or by an attorney authorized to practice in the court, and (2) perform any act not constituting the practice of law, by an authorized agent, attorney in fact, or proxy.”).
1State Unauthorized Practice of Law Committee v. Paul Mason & Assocs., 46 F.3d 469, 472 (5th Cir. 1995) (relying on federal law and permitting authorized nonlawyer agent to perform administrative functions for creditors, such as attend 341 meeting).
Staiano v. Schwab (In re Maloney), 249 B.R. 71 (M.D. Pa. 2000) (relying on state law and holding “examination of a debtor at a Section 341(a) meeting of creditors by a non-attorney representative of a creditor” does not constitute unauthorized practice of law).
In re Kincaid, 146 B.R. 387, 388 (Bankr. W.D. Tenn. 1992) (“Ultimately the Court concludes that the bank's non-lawyer employee or representative may appear on behalf of the bank and question the debtors at the  meeting without engaging in the unauthorized practice of law within the meaning of [the] Tennessee Code.”).
In re Gravitt, 1991 Bankr. LEXIS 2231, Case No. 91-00017, at *4 (Bankr. E.D. Ken. July 12, 1991) (holding “a § 341 meeting is a non-adjudicative proceeding in which a non-lawyer employee of a creditor may question debtors”).
Continuing And Concluding The 341 Meeting CompareIn re Cherry, 341 B.R. 581, 587 (Bankr. S.D. Tex. 2006) (adopting case-by-case approach for determining whether 341 meeting was properly continued), with1In re Koss, 319 B.R. 317, 321 (Bankr. D. Mass. 2005) (requiring court order or trustee declaration for conclusion of 341 meeting as “Federal Rule of Bankruptcy Procedure 2003 does not provide a per se deadline for conclusion of a § 341 meeting or a deadline for the reconvening of an adjourned § 341 meeting”), andIn re Hurdle, 240 B.R. 617, 622 (Bankr. C.D. Cal. 1999) (adopting Bright Line Rule requiring trustee to schedule specified date for continuance of 341 meeting to prevent conclusion and running of 30-day period for objections to exemptions found in Rule 4003(b) and declining to place burden on debtor), with1In re DiGregorio, 187 B.R. 273, 276 (Bankr. N.D. Ill. 1995) (holding because “[t]here is no authority in either the Code or Rules for the U.S. Trustee to adjourn § 341 meetings generally. . . . the burden [is] on the debtor to move for a court order concluding the § 341 meeting”).
Consequences Of Debtor’s Failure To Attend 341 Meeting 1Montgomery v. Ryan (In re Montgomery), 37 F.3d 413, 414–15 (8th Cir. 1994) (upholding dismissal of debtor’s second petition where first petition had been dismissed within past 180 days for failure to obey a court order, in this case, failure to attend 341 meeting).
1In re Pappalardo, 109 B.R. 622, 625 (Bankr. S.D.N.Y. 1990) (“If the debtor fails to appear at the § 341(a) meeting as ordered, the estate and its creditors will be hindered and the bankruptcy process will be frustrated. Hence, a debtor's failure to attend a § 341(a) meeting without justification amounts to a failure to abide by an order of the court.”).
Miscellaneous 1In re Astri Investment, Management & Securities Corp., 88 B.R. 730, 741 (D. Md. 1988) (1“Both the history and the function and policy of our bankruptcy laws require the conclusion that a presumptive First Amendment right of access to creditors’ meetings exists -- a right which should not be denied unless, in a given case, there is a showing that a restriction of access ‘is essential to preserve higher values and is narrowly tailored to serve that interest.’” (internal citation omitted)).
1 Prior to the introduction of the telephonic translation services, the policy of the Office of the United States Trustee was that the translator may not be the debtor’s attorney or an employee of the debtor’s attorney.