USTP - Chapter 7 Handbook

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APPENDICES

APPENDIX A SECTION 341(a) MEETING OF CREDITORS

(Effective July 1, 2002)

REQUIRED STATEMENTS/QUESTIONS

1. State your name and current address for the record.

2. Have you read the Bankruptcy Information Sheet provided by the United States Trustee?

3. Did you sign the petition, schedules, statements, and related documents you filed with the court? Did you read the petition, schedules, statements, and related documents before you signed them and is the signature your own?

4. Please provide your picture ID and social security number card for review.

a. If the documents are in agreement with the petition, a suggested statement for the record is:

"I have viewed the original drivers license (or other type of original photo ID) and original social security card (or other original document used for proof) and they match the name and social security number on the petition."

b. If the documents are not in agreement with the petition, a suggested statement for the record is:

"I have viewed the original social security card (or other original document used for proof) and the number is 000-00-000. It does not match the number on the petition. I have instructed the debtor (or debtor's counsel) to file an amended petition by [date], serve all creditors and the trustee, and send a 'Notice of Correction of Social Security Number in Bankruptcy Filing' and a copy of the amended petition to the three major credit reporting agencies, and to the United States Trustee."

c. When the documents do not match the petition, the trustee shall attempt to ascertain why. The trustee also shall ask if the debtor has ever obtained credit or benefits, such as Medicaid or employment, using this social security number or any other social security number.

d. If the debtor did not bring proof of identity and social security number, the trustee needs to determine why.

5. Are you personally familiar with the information contained in the petition, schedules, statements and related documents?

6. To the best of your knowledge, is the information contained in the petition, schedules, statements, and related documents true and correct?

7. Are there any errors or omissions to bring to my, or the court's, attention at this time?

8. Are all of your assets identified on the schedules?

9. Have you listed all of your creditors on the schedules?

10. Have you filed previously filed bankruptcy? (If so, the trustee must obtain the case number and the discharge information to determine the debtor(s) discharge eligibility.)


SAMPLE GENERAL QUESTIONS (To be asked when deemed appropriate.)

1. Do you own or have any interest whatsoever in any real estate?

If owned: When did you purchase the property? How much did the property cost? What are the mortgages encumbering it? What do you estimate the present value of the property to be? Is that the whole value or your share? How did you arrive at that value?

If renting: Have you ever owned the property in which you live and/or is its owner in any way related to you?

2. Have you made any transfers of any property or given any property away within the last one year period (or such longer period as applicable under state law)?

If yes: What did you transfer? To whom was it transferred? What did you receive in exchange? What did you do with the funds?

3. Does anyone hold property belonging to you?

If yes: Who holds the property and what is it? What is its value?

4. Do you have a claim against anyone or any business?

If there are large medical debts, are the medical bills from injury?

Are you the plaintiff in any lawsuit?

What is the status of each case and who is representing you?

5. Are you entitled to life insurance proceeds or an inheritance as a result of someone's death?

If yes: Please explain the details.

If you become a beneficiary of anyone's estate within six months of the date your bankruptcy petition was filed, the trustee must be advised within ten days through your counsel of the nature and extent of the property you will receive. FRBP 1007(h)

6. Does anyone owe you money?

If yes: Is the money collectible? Why haven't you collected it? Who owes the money and where are they?

7. Have you made any large payments, over $600, to anyone in the past year?

8. Were federal income tax returns filed on a timely basis? When was the last return filed?

Do you have copies of the federal income tax returns? At the time of the filing of your petition, were you entitled to a tax refund from the federal or state government ?

If yes: Inquire as to amounts.

9. Do you have a bank account, either checking or savings?

If yes: In what banks and what were the balances as of the date you filed your petition?

10. When you filed your petition, did you have:

a. any cash on hand?

b. any U.S. Savings Bonds?

c. any other stocks or bonds?

d. any Certificates of Deposit?

e. a safe deposit box in your name or in anyone else's name?

11. Do you own an automobile?

If yes: What is the year, make, and value? Do you owe any money on it? Is it insured?

12. Are you the owner of any cash value life insurance policies?

If yes: State the name of the company, face amount of the policy, cash surrender value, if any, and the beneficiaries.

13. Do you have any winning lottery tickets?

14. Do you anticipate that you might realize any property, cash or otherwise, as a result of a divorce or separation proceeding?

15. Regarding any consumer debts secured by your property, have you filed the required Statement of Intention with respect to the exemption, retention, or surrender of that secured property? Please provide a copy of the statement to the trustee. Have you performed that intention?

16. Have you been engaged in any business during the last six years?

If yes: Where and when? What happened to the assets of the business?

In cases where debtors are engaged in business, the following questions should be considered:

1. Who was responsible for maintaining financial records?

2. Which of the following records were maintained?

a. Cash receipts journal

b. Cash disbursements journal

c. General journal

d. Accounts receivable ledger

e. Accounts payable ledger

f. Payroll ledger

g. Fixed asset ledger

h. Inventory ledger

i. General ledger

j. Balance sheet, income statement, and cash flow statements

3. Where are each of the foregoing records now located?

4. Who was responsible for preparing financial statements?

5. How often were financial statements prepared?

6. For what periods are financial statements available?

7. Where are such financial statements now located?

8. Was the business on a calendar year or a fiscal year?

9. Were federal income tax returns filed on a timely basis? When was the last return filed?

10. Do you have copies of the federal income tax returns? Who does have the copies?

11. What outside accountants were employed within the last three years?

12. Do you have copies of the reports of such accountants? Who does have copies?

13. What bank accounts were maintained within the last three years?

14. Where are the bank statements and cancelled checks now located?

15. What insurance policies were in effect within the last year? What kind, and why?

16. From whom can copies of such insurance policies be obtained?

17. If the business is incorporated, where are the corporate minutes?

18. Is the debtor owed any outstanding accounts receivable? From whom? Are they collectible?

19. Is there any inventory, property, or equipment remaining?

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APPENDIX B SAMPLE TRUSTEE'S REPORT OF NO DISTRIBUTION (NDR)

(This form may vary by district)

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF _______________

IN RE: )

) CASE NO.

DEBTOR(S) )


I, __________________, having been appointed trustee of the estate of the above-named debtor, report that I have neither received any property nor paid any money on account of this estate except exempt property; that I have made a diligent inquiry into the financial affairs of the debtor(s) and the location of property belonging to the estate; and that there is no property available for distribution from the estate over and above that exempted by law.

Pursuant to FRBP 5009, I hereby certify that the estate of the above-named debtor has been fully administered.

I request that this report be approved, and that I be discharged from any further duties as trustee.

DATE: _________________ _____________________________

_____________________ Trustee


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APPENDIX C UNITED STATES TRUSTEE FEE GUIDELINES


GUIDELINES FOR REVIEWING APPLICATIONS FOR

COMPENSATION AND REIMBURSEMENT OF EXPENSES

FILED UNDER 11 U.S.C. ァ 330

(Appendix A to 28 C.F.R. ァ 58)

(a) General Information.

(1) The Bankruptcy Reform Act of 1994 amended the responsibilities of the United States Trustees under 28 U.S.C. ァ 586(a)(3)(A) to provide that, whenever they deem appropriate, United States Trustees will review applications for compensation and reimbursement of expenses under ァ 330 of the Bankruptcy Code, 11 U.S.C. ァ 101, et seq. ("Code"), in accordance with procedural guidelines ("Guidelines") adopted by the Executive Office for United States Trustees ("Executive Office"). The following Guidelines have been adopted by the Executive Office and are to be uniformly applied by the United States Trustees except when circumstances warrant different treatment.

(2) The United States Trustees shall use these Guidelines in all cases commenced on or after October 22, 1994.

(3) The Guidelines are not intended to supersede local rules of court, but should be read as complementing the procedures set forth in local rules.

(4) Nothing in the Guidelines should be construed:

(i) To limit the United States Trustee's discretion to request additional information necessary for the review of a particular application or type of application or to refer any information provided to the United States Trustee to any investigatory or prosecutorial authority of the United States or a state;

(ii) To limit the United States Trustee's discretion to determine whether to file comments or objections to applications; or

(iii) To create any private right of action on the part of any person enforceable in litigation with the United States Trustee or the United States.

(5) Recognizing that the final authority to award compensation and reimbursement under ァ 330 of the Code is vested in the Court, the Guidelines focus on the disclosure of information relevant to a proper award under the law. In evaluating fees for professional services, it is relevant to consider various factors including the following: the time spent; the rates charged; whether the services were necessary to the administration of, or beneficial towards the completion of, the case at the time they were rendered; whether services were performed within a reasonable time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and whether compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in non-bankruptcy cases. The Guidelines thus reflect standards and procedures articulated in ァ 330 of the Code and Rule 2016 of the Federal Rules of Bankruptcy Procedure for awarding compensation to trustees and to professionals employed under ァァ 327 or 1103. Applications that contain the information requested in these Guidelines will facilitate review by the Court, the parties, and the United States Trustee.

(6) Fee applications submitted by trustees are subject to the same standard of review as are applications of other professionals and will be evaluated according to the principles articulated in these Guidelines. Each United States Trustee should establish whether and to what extent trustees can deviate from the format specified in these Guidelines without substantially affecting the ability of the United States Trustee to review and comment on their fee applications in a manner consistent with the requirements of the law.

(b) Contents of Applications for Compensation and Reimbursement of Expenses. All applications should include sufficient detail to demonstrate compliance with the standards set forth in 11 U.S.C. ァ 330. The fee application should also contain sufficient information about the case and the applicant so that the Court, the creditors, and the United States Trustee can review it without searching for relevant information in other documents. The following will facilitate review of the application.

(1) Information about the Applicant and the Application. The following information should be provided in every fee application:

(i) Date the bankruptcy petition was filed, date of the order approving employment, identity of the party represented, date services commenced, and whether the applicant is seeking compensation under a provision of the Bankruptcy Code other than ァ 330.

(ii) Terms and conditions of employment and compensation, source of compensation, existence and terms controlling use of a retainer, and any budgetary or other limitations on fees.

(iii) Names and hourly rates of all applicant's professionals and paraprofessionals who billed time, explanation of any changes in hourly rates from those previously charged, and statement of whether the compensation is based on the customary compensation charged by comparably skilled practitioners in cases other than cases under title 11.

(iv) Whether the application is interim or final, and the dates of previous orders on interim compensation or reimbursement of expenses along with the amounts requested and the amounts allowed or disallowed, amounts of all previous payments, and amount of any allowed fees and expenses remaining unpaid.

(v) Whether the person on whose behalf the applicant is employed has been given the opportunity to review the application and whether that person has approved the requested amount.

(vi) When an application is filed less than 120 days after the order for relief or after a prior application to the Court, the date and terms of the order allowing leave to file at shortened intervals.

(vii) Time period of the services or expenses covered by the application.

(2) Case Status. The following information should be provided to the extent that it is known to or can be reasonably ascertained by the applicant:

(i) In a chapter 7 case, a summary of the administration of the case including all moneys received and disbursed in the case, when the case is expected to close, and, if applicant is seeking an interim award, whether it is feasible to make an interim distribution to creditors without prejudicing the rights of any creditor holding a claim of equal or higher priority.

(ii) In a chapter 11 case, whether a plan and disclosure statement have been filed and, if not yet filed, when the plan and disclosure statement are expected to be filed; whether all quarterly fees have been paid to the United States Trustee; and whether all monthly operating reports have been filed.

(iii) In every case, the amount of cash on hand or on deposit, the amount and nature of accrued unpaid administrative expenses, and the amount of unencumbered funds in the estate.

(iv) Any material changes in the status of the case that occur after the filing of the fee application should be raised, orally or in writing, at the hearing on the application or, if a hearing is not required, prior to the expiration of the time period for objection.

(3) Summary Sheet. All applications should contain a summary or cover sheet that provides a synopsis of the following information:

(i) Total compensation and expenses requested and any amount(s) previously requested;

(ii) Total compensation and expenses previously awarded by the court;

(iii) Name and applicable billing rate for each person who billed time during the period, and date of bar admission for each attorney;

(iv) Total hours billed and total amount of billing for each person who billed time during billing period; and

(v) Computation of blended hourly rate for persons who billed time during period, excluding paralegal or other paraprofessional time.

(4) Project Billing Format.

(i) To facilitate effective review of the application, all time and service entries should be arranged by project categories. The project categories set forth in Exhibit A should be used to the extent applicable. A separate project category should be used for administrative matters and, if payment is requested, for fee application preparation.

(ii) The United States Trustee has discretion to determine that the project billing format is not necessary in a particular case or in a particular class of cases. Applicants should be encouraged to consult with the United States Trustee if there is a question as to the need for project billing in any particular case.

(iii) Each project category should contain a narrative summary of the following information:

(A) a description of the project, its necessity and benefit to the estate, and the status of the project including all pending litigation for which compensation and reimbursement are requested;

(B) identification of each person providing services on the project; and

(C) a statement of the number of hours spent and the amount of compensation requested for each professional and paraprofessional on the project.

(iv) Time and service entries are to be reported in chronological order under the appropriate project category.

(v) Time entries should be kept contemporaneously with the services rendered in time periods of tenths of an hour. Services should be noted in detail and not combined or "lumped" together, with each service showing a separate time entry; however, tasks performed in a project which total a de minimis amount of time can be combined or lumped together if they do not exceed .5 hours on a daily aggregate. Time entries for telephone calls, letters, and other communications should give sufficient detail to identify the parties to and the nature of the communication. Time entries for court hearings and conferences should identify the subject of the hearing or conference. If more than one professional from the applicant firm attends a hearing or conference, the applicant should explain the need for multiple attendees.

(5) Reimbursement for Actual, Necessary Expenses. Any expense for which reimbursement is sought must be actual and necessary and supported by documentation as appropriate. Factors relevant to a determination that the expense is proper include the following:

(i) Whether the expense is reasonable and economical. For example, first class and other luxurious travel mode or accommodations will normally be objectionable.

(ii) Whether the requested expenses are customarily charged to non-bankruptcy clients of the applicant.

(iii) Whether applicant has provided a detailed itemization of all expenses including the date incurred, description of expense (e.g., type of travel, type of fare, rate, destination), method of computation, and, where relevant, name of the person incurring the expense and purpose of the expense. Itemized expenses should be identified by their nature (e.g., long distance telephone, copy costs, messengers, computer research, airline travel, etc.) and by the month incurred. Unusual items require more detailed explanations and should be allocated, where practicable, to specific projects.

(iv) Whether applicant has prorated expenses where appropriate between the estate and other cases (e.g., travel expenses applicable to more than one case) and has adequately explained the basis for any such proration.

(v) Whether expenses incurred by the applicant to third parties are limited to the actual amounts billed to, or paid by, the applicant on behalf of the estate.

(vi) Whether applicant can demonstrate that the amount requested for expenses incurred in-house reflect the actual cost of such expenses to the applicant. The United States Trustee may establish an objection ceiling for any in-house expenses that are routinely incurred and for which the actual cost cannot easily be determined by most professionals (e.g., photocopies, facsimile charges, and mileage).

(vii) Whether the expenses appear to be in the nature of nonreimbursable overhead. Overhead consists of all continuous administrative or general costs incident to the operation of the applicant's office and not particularly attributable to an individual client or case. Overhead includes, but is not limited to, word processing, proofreading, secretarial and other clerical services, rent, utilities, office equipment and furnishings, insurance, taxes, local telephones and monthly car phone charges, lighting, heating and cooling, and library and publication charges.

(viii) Whether applicant has adhered to allowable rates for expenses as fixed by local rule or order of the Court.

Exhibit A--Project Categories

Here is a list of suggested project categories for use in most bankruptcy cases. Only one category should be used for a given activity. Professionals should make their best effort to be consistent in their use of categories, whether within a particular firm or by different firms working on the same case. It would be appropriate for all professionals to discuss the categories in advance and agree generally on how activities will be categorized. This list is not exclusive. The application may contain additional categories as the case requires. They are generally more applicable to attorneys in chapter 7 and chapter 11, but may be used by all professionals as appropriate.

Asset Analysis and Recovery: Identification and review of potential assets including causes of action and non-litigation recoveries.

Asset Disposition: Sales, leases (ァ 365 matters), abandonment and related transaction work.

Business Operations: Issues related to debtor-in-possession operating in chapter 11 such as employee, vendor, tenant issues and other similar problems.

Case Administration: Coordination and compliance activities, including preparation of statement of financial affairs; schedules; list of contracts; United States Trustee interim statements and operating reports; contacts with the United States Trustee; general creditor inquiries.

Claims Administration and Objections: Specific claim inquiries; bar date motions; analyses, objections and allowances of claims.

Employee Benefits/Pensions: Review issues such as severance, retention, 401K coverage and continuance of pension plan.

Fee/Employment Applicants: Preparation of employment and fee applications for self or others; motions to establish interim procedures.

Fee/Employment Objections: Review of and objections to the employment and fee applications of others.

Financing: Matters under ァァ 361, 363 and 364 including cash collateral and secured claims; loan document analysis.

Litigation: There should be a separate category established for each matter (e.g., XYZ Litigation).

Meetings of Creditors: Preparing for and attending the conference of creditors, the ァ 341(a) meeting and other creditors' committee meetings.

Plan and Disclosure Statement: Formulation, presentation and confirmation; compliance with the plan confirmation order, related orders and rules; disbursement and case closing activities, except those related to the allowance and objections to allowance of claims.

Relief From Stay Proceedings: Matters relating to termination or continuation of automatic stay under ァ 362.

The following categories are generally more applicable to accountants and financial advisors, but may be used by all professionals as appropriate.

Accounting/Auditing: Activities related to maintaining and auditing books of account, preparation of financial statements and account analysis.

Business Analysis: Preparation and review of company business plan; development and review of strategies; preparation and review of cash flow forecasts and feasibility studies.

Corporate Finance: Review financial aspects of potential mergers, acquisitions and disposition of company or subsidiaries.

Data Analysis: Management information systems review, installation and analysis, construction, maintenance and reporting of significant case financial data, lease rejection, claims, etc.

Litigation Consulting: Providing consulting and expert witness services relating to various bankruptcy matters such as insolvency, feasibility, avoiding actions, forensic accounting, etc.

Reconstruction Accounting: Reconstructing books and records from past transactions and bringing accounting current.

Tax Issues: Analysis of tax issues and preparation of state and federal tax returns.

Valuation: Appraise or review appraisals of assets.

SAMPLE SUMMARY SHEET - Exhibit B

Fees Previously Requested NAME OF APPLICANT:
Fees Previously Awarded
In re
CHAPTER Expenses Previously Requested ROLE IN THE CASE:
Expenses Previously Awarded
Case No.
Retainer Paid CURRENT APPLICATION

Fees Requested

Expenses Requested

Debtor.

FEE APPLICATION
NAMES OF PROFESSIONALS/ PARAPROFESSIONALS YEAR ADMITTED TO PRACTICE HOURS BILLED

CURRENT APPLICATION



RATE


TOTAL FOR APPLICATION
PARTNERS
ASSOCIATES
PARAPROFESSIONALS
TOTAL BLENDED HOURLY RATE(Excluding Paraprofessionals)


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APPENDIX D SEGREGATING DUTIES IN A SMALL TRUSTEE OPERATION

CHAPTER 7

WAYS TO SEGREGATE DUTIES IN A TWO-PERSON OFFICE

FUNCTION PERFORMED PERSON TO PERFORM FUNCTION


Estate Receipts
Opens mail/endorses and logs in checks Assistant (stronger control if performed by trustee)
Reviews checks Trustee (M)
Prepares bank deposits Assistant
Makes bank deposits Assistant (stronger controls if performed by trustee)
Reconciles log to bank statements Trustee (M) - sampling permitted


Estate Disbursements
Maintains custody of blank check stock (includes

maintaining a control log if using computerized

checks)

Trustee (S) or assistant
Prepares checks Assistant
Signs checks Trustee (M)


Accounting Records
Opens bank statements and reviews cancelled checks Trustee (M)
Reconciles bank statements and compares to Form 2 Assistant
Reviews bank reconciliations and compares to Form 2 Trustee (M)
Prepares Forms 1, 2, and 3 Assistant
Reviews Forms 1, 2, and 3 and signs interim report Trustee (M)

S = Suggested

M = Mandatory

Courtesy of Region 18

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APPENDIX E PROCEDURES FOR SUSPENSION AND REMOVAL OF PANEL TRUSTEES AND STANDING TRUSTEES
28 C.F.R. ァ 58.6
(As of November 6, 1997)

(a) A United States Trustee shall notify a panel trustee or a standing trustee in writing of any decision to suspend or terminate the assignment of cases to the trustee including, where applicable, any decision not to renew the trustee's term appointment. The notice shall state the reason(s) for the decision and should refer to, or be accompanied by copies of, pertinent materials upon which the United States Trustee has relied and any prior communications in which the United States Trustee has advised the trustee of the potential action. The notice shall be sent to the office of the trustee by overnight courier, for delivery the next business day. The reasons may include, but are in no way limited to:

(1) Failure to safeguard or to account for estate funds and assets;

(2) Failure to perform duties in a timely and consistently satisfactory manner;

(3) Failure to comply with the provisions of the Code, the Bankruptcy Rules, and local rules of court;

(4) Failure to cooperate and to comply with orders, instructions and policies of the court, the bankruptcy clerk or the United States Trustee;

(5) Substandard performance of general duties and case management in comparison to other members of the chapter 7 panel or other standing trustees;

(6) Failure to display proper temperament in dealing with judges, clerks, attorneys, creditors, debtors, the United States Trustee and the general public;

(7) Failure to adequately monitor the work of professionals or others employed by the trustee to assist in the administration of cases;

(8) Failure to file timely, accurate reports, including interim reports, final reports, and final accounts;

(9) Failure to meet the eligibility requirements of 11 U.S.C. ァ 321 or the qualifications set forth in 28 CFR ァァ 58.3 and 58.4 and in 11 U.S.C. ァ 322;

(10) Failure to attend in person or appropriately conduct the 11 U.S.C. ァ 341(a) meeting of creditors;

(11) Action by or pending before a court or state licensing agency which calls the trustee's competence, financial responsibility or trustworthiness into question;

(12) Routine inability to accept assigned cases due to conflicts of interest or to the trustee's unwillingness or incapacity to serve;

(13) Change in the composition of the chapter 7 panel pursuant to a system established by the United States Trustee under 28 CFR ァ 58.1;

(14) A determination by the United States Trustee that the interests of efficient case administration or a decline in the number of cases warrant a reduction in the number of panel trustees or standing trustees.

(b) The notice shall advise the trustee that the decision is final and unreviewable unless the trustee requests in writing a review by the Director, Executive Office for United States Trustees, no later than 20 calendar days from the date of issuance of the United States Trustee's notice ("request for review"). In order to be timely, a request for review must be received by the Office of the Director no later than 20 calendar days from the date of the United States Trustee's notice to the trustee.

(c) A decision by a United States Trustee to suspend or terminate the assignment of cases to a trustee shall take effect upon the expiration of a trustee's time to seek review from the Director or, if the trustee timely seeks such review, upon the issuance of a final written decision by the Director.

(d) Notwithstanding paragraph (c) of this section, a United States Trustee's decision to suspend or terminate the assignment of cases to a trustee may include, or may later by supplemented by an interim directive, by which the United States trustee may immediately discontinue assigning cases to a trustee during the review period. A United States Trustee may issue such an interim directive if the United States Trustee specifically finds that:

(1) A continued assignment of cases to the trustee places the safety of estate assets at risk;

(2) The trustee appears to be ineligible to serve under applicable law, rule, or regulation;

(3) The trustee has engaged in conduct that appears to be dishonest, deceitful, fraudulent, or criminal in nature; or

(4) The trustee appears to have engaged in other gross misconduct that is unbefitting his or her position as trustee or violates the trustee's duties.

(e) If the United States Trustee issues an interim directive, the trustee may seek a stay of the interim directive from the Director if the trustee has timely filed a request for review under paragraph (b) of this section.

(f) The trustee's written request for review shall fully describe why the trustee disagrees with the United States Trustee's decision, and shall be accompanied by all documents and materials that the trustee wants the Director to consider in reviewing the decision. The trustee shall send a copy of the request for review, and the accompanying documents and materials, to the United States Trustee by overnight courier, for delivery the next business day. The trustee may request that specific documents in the possession of the United States Trustee be transmitted to the Director for inclusion in the record.

(g) The United States Trustee shall have 15 calendar days from the date of the trustee's request for review to submit to the Director a written response regarding the matters raised in the trustee's request for review. The United States Trustee shall provide a copy of this response to the trustee. Both copies shall be sent by overnight courier, for delivery the next business day.

(h) The Director may seek additional information from any party in the manner and to the extent the Director deems appropriate.

(i) Unless the trustee and the United States Trustee agree to a longer period of time, the Director shall issue a written decision no later than 30 calendar days from the receipt of the United States Trustee's response to the trustee's request for review. That decision shall determine whether the United States Trustee's decision is supported by the record and the action is an appropriate exercise of the United States Trustee's discretion, and shall adopt, modify or reject the United States Trustee's decision to suspend or terminate the assignment of future cases to the trustee. The Director's decision shall constitute final agency action.

(j) In reaching a determination, the Director may specify a person to act as a reviewing official. The reviewing official shall not be a person who was involved in the United States Trustee's decision or a Program employee who is located within the region of the United States Trustee who made the decision. The reviewing official's duties shall be specified by the Director on a case by case basis, and may include reviewing the record, obtaining additional information from the participants, providing the Director with written recommendations, or such other duties as the Director shall prescribe in a particular case.

(k) This rule does not authorize a trustee to seek review of any decision to increase the size of the chapter 7 panel or to appoint additional standing trustees in the district or region.

(l) A trustee who files a request for review shall bear his or her own costs and expenses, including counsel fees.

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APPENDIX F NOTICE OF VOLUNTARY SUSPENSION

I, _________________, a [standing] [panel] trustee in Region [ ], request a voluntary suspension of the assignment of future cases for the following time period [specify]. I request this voluntary suspension for the following reason(s): [specify].

By seeking this Voluntary Suspension, I understand that 28 C.F.R. ァ 58.6 does not apply.





_________________________ _____________________

Date Name



Received:

_________________________





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APPENDIX G POLICY STATEMENTS FOR EARNEST MONIES

AND HANDLING CASH

I. EARNEST MONIES

In connection with the sale of bankruptcy estate assets, a chapter 7 trustee may occasionally receive and hold earnest monies. These funds are held in trust until the sale is consummated in accordance with applicable bankruptcy law. They may not be held, undeposited, in the trustee's office nor commingled with a law firm's trust account (19). Trustees should handle earnest monies as follows:

Recommended Option

The funds may be deposited to the bankruptcy estate account immediately upon receipt. The deposit is recorded on Form 2 and described as "earnest monies." The description also identifies the related asset. Earnest monies are not recorded on Form 1.

When the related asset is sold, the earnest monies paid by the successful bidder become an estate asset. They are then reported on Form 1 under "Sale/Funds Received by the Estate" (column 5) and referenced on Form 2 using the applicable Form 1 reference number.

If earnest monies were received from other bidders, refunds to the unsuccessful bidders are made via estate checks (20). These checks are recorded on Form 2 and described as "return of earnest monies received in connection with the sale of x asset."

If earnest monies are received late in the day and it is impossible or impractical to follow the above procedure, the trustee must ensure that the funds are kept overnight in a safe or locked drawer until the next business day when they can be deposited to

the estate account. The trustee may also want to investigate the possibility of using the bank's night depository or 24 hour services if the bank is not in a remote location.

Second Option

The funds may be deposited to a separate trust account established for each individual estate. The trust account is to be opened and the earnest monies deposited immediately upon receipt. Of course, Chapter 7 trustees must comply with applicable state laws and banking or other regulations when depositing bankruptcy-related earnest monies to trust accounts.

The following minimum requirements for trust accounts used to hold bankruptcy-related funds have been established:

The account must be in the name of the trustee and clearly designated as a trust account, with pre-printed checks and deposit slips reflecting this status. The trustee shall notify the United States Trustee of the name and address of the financial institution and the account number(s) of the trust account(s).

Generally, these trust accounts are not interest bearing due to the short-term nature of the deposits and the difficulty of apportioning interest. Some states, however, require attorneys to utilize interest bearing accounts for funds held in trust (in these instances, the interest is usually remitted to the state). If the trustee deposits earnest monies in an interest-bearing trust account and is not required to remit interest to the state, the trustee must keep sufficiently detailed records to be able to allocate interest to each individual deposit.

The trustee shall maintain original or duplicate deposit slips, copies of the checks deposited to the account, original canceled checks, bank statements, and cash receipts/disbursements records that identify the payer/payee, amount, purpose, and date for each deposit to and disbursement from the account. Monthly, the trust accounting records shall be reconciled to the bank statements. These records are subject to audit by the United States Trustee and shall be retained by the trustee for a period of two years after the related bankruptcy estate is closed.

Quarterly, the trustee shall report to the United States Trustee all bankruptcy-related deposits and disbursements pertaining to the trust account in a format as from time-to-time prescribed by the Executive Office.

The trustee will authorize the financial institution to provide periodic reports, bank statements, and all other records pertaining to the account as may be requested by the United States Trustee.

II. PROCEDURES FOR HANDLING CASH

Program policy has long discouraged cash payments because, in the vernacular, "cash walks." Whenever possible, a trustee is to encourage debtors and other parties to convert cash to a money order or cashier's check before surrendering it to the trustee.

When a trustee cannot avoid accepting cash, they must provide a numbered receipt to the payer and immediately deposit the funds in the estate account. If they are unable to do so, either because the trustee uses a remote bank or because an estate account has not been opened, the trustee or an employee should immediately convert the cash to a cashier's check or money order. All of the supporting documentation should be kept together in the estate file to provide an audit trail. When an employee handles the transaction, the trustee needs to verify that the amount of the check or money order matches the amount of funds initially turned over to the employee.

If cash is received late in the day and it is impossible or impractical to follow the above procedure, the trustee must ensure that the funds are kept overnight in a safe or locked drawer until the next business day when the cash can be deposited to the estate account or converted to a cashier's check or money order. The trustee may also want to investigate the possibility of using the bank's night depository or 24 hour services if the bank is not in a remote location.



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Appendix H DECLARATION REGARDING ADMINISTRATION OF OATH AND

CONFIRMATION OF IDENTITY AND SOCIAL SECURITY NUMBER

In re: (Debtor's Name)

Bankruptcy Case No.____________________________________________ ____

Date of telephonic or video conference appearance at ァ 341(a) meeting of creditors: _________________

I declare as follows:

  • My name is :_____________________________________________

(Print or type)

  • My work address is:_______________________________________


  • My work telephone number is: (____)_________________________


  • The address from where I participated in the ァ 341(a) meeting of creditors is:

______________________________________________________________________

5) I am a person authorized to administer oaths in the State of ___________________, by virtue of the following fact:

_____ I am a notary

_____ I am a court reporter

_____ I am a judicial officer

_____ I am authorized to give an oath under the Code of Military Justice

_____ Other: ________________________________________________

(Give title and legal authority for power to administer oath)

6) I personally verified the identity of the debtor by checking his/her original photo identification:

_____ Drivers License (State & number) _____________________________

_____ State Identification (State & number)____________________________

_____ Passport (Country, number, expiration date) ______________________

_____ Military Identification (Branch & ID number) _____________________

_____ Other (describe) _____________________________________________

7) I personally inspected the following original document as proof of the debtor's social security number and orally confirmed it with the trustee:

_____ Social Security Card

_____ Social Security Administration Statement

_____ W-2 Form

_____ Recent Payroll Stub

_____ Employer's Health Card or Medical Insurance Card

_____ Other (specify) __________________________________________

8) On ____________, I did administer an oath to the debtor, prior to the trustee commencing

(Date)

the questioning of the debtor for the telephonic or video conference interview of the debtor.

In accordance with 28 U.S.C. ァ 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this ________ day of ________, ________, in _________________, _________.

(Date) (Month) (Year) (City) (State)


____________________________________________________________________________________

Signature of Person Administering Oath and Verifying Identity and Social Security Number

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Appendix I NOTICE OF CORRECTION OF SOCIAL SECURITY NUMBER IN BANKRUPTCY FILING


TO:
EXPERIAN
PROFILE MAINTENANCE
P. O. BOX 9558
ALLEN, TEXAS 75013

TRANS UNION CORPORATION
ATTN: PUBLIC RECORDS DEPT.
555 WEST ADAMS STREET
CHICAGO, IL 60661



EQUIFAX
P. O. BOX 144717
ORLANDO, FL 32814

FROM:____________________________________________________________, Debtor

DATE: _______________________________


INCORRECT SSN: __ __ __ - __ __ - __ __ __

CORRECT SSN: __ __ __ - __ __ - __ __ __

Enclosed please find an amended bankruptcy petition which liststhe correct social security number for the above named Debtor.

The Debtor originally filed the bankruptcy petition using an incorrect social security number. This social security number was not assigned to the Debtor and was inadvertently listed on the bankruptcy petition.

Please correct your records to indicate that the individual whose social security number is __ __ __-__ __-__ __ __ __ is not the debtor in Case #_________________ filed in _______________________________.

(Federal Judicial District)

Enclosure

cc: Office of the United States Trustee

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Appendix J NOTICE TO UNITED STATES TRUSTEE OF

DEBTOR IDENTITY PROBLEM


Trustee:____________________ Original ァ 341(a) date:____________________

Continued ァ 341(a) date:__________________

Debtor's Name:_________________________________

Case Number:__________________________________

  • Pros Se / BPP If BPP, ___________________________________
  • Debtor's Counsel________________________________________

PROBLEM:

  • No appearance at continued ァ 341(a) meeting
  • No identification at continued ァ 341(a) meeting
  • Identification does not match debtor's name
  • No proof of social security number

Incorrect social security number on petition: __________________________

Correct social security number:_____________________________________

Social Security Documentation:

  • Social Security Card W-2 Form
  • Pay Stub Other:________________________

Identity Documentation:

Driver's License State Picture ID

U.S. Passport Legal Resident Alien Card

    • Other:______________________________________________________


Explanation for Incorrect Number:

Attorney received wrong SSN Typographical error

Other:_____________________________________________________


Action to be Taken by Debtor within 10 Days:

Amend petition File Motion to Dismiss Case

Notify credit reporting agencies Other:____________________

Trustee Comments for UST:

Monitor only

Additional investigation recommended

Other:____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________



Updated May 7, 2015

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