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Who are the opposing parties in bankruptcy? An (entertaining?) primer of sorts

Posted by attorney Asaph Abrams

Consider the phrase, "How Is That My Problem?" (Hereinafter referred to as "HITMP.") It's telling that HITMP is the defining characteristic of the legal system. Law is adversarial, ergo one side's problem cannot be the other side's problem. That’s how it has to be; otherwise we're all compelled to get along, a notion which is not conducive to my employment. Bankruptcy, the big BK is no exception to legal antagonism. In stepping to the plate, there’s no call to spit tobacco, scratch where you shouldn't, and kick up dirt. But you must carry your bat and know who you’re up against on the BK Diamond. Read on: it’s certainly confusing, man, but it’s slightly less boring than baseball. I. Debtor-Man and The Rogues Gallery Batman fights a multiplicity of baddies: The Joker, The Riddler, The Penguin, the inappropriate attentions of Robin The Boy Wonder... Spiderman combats The Green Goblin, Dr. Octopus, Sandman, and pimples.** The bankruptcy debtor or petitioner--aka Debtor-Man--has his own foils, every bit as dangerous. II. Creditor-Man He: You've been pre-approved! You: Like, holy smokes, I didn't even try. You Must Like Me, You Must Really Like Me! He: And what's more, we're offering introductory 0% APR and you may select between a baby-seal- and a bald-eagle-background on your card. You: You had me at pre-approved. He: Just sign here. You (pointing): here? He: yes, right beneath where it says card-issuer may change terms, interest, and otherwise do what it may with impunity. You: Right on, man. He is the Creditor, man. Or rather, he is Creditor-Man and he has a big C on his chest. Unlike, say The Joker with his acid-spewing flowers, Creditor-Man's weapon-of-choice is Teaser Rates. The point is, when things start to snowball, you can call your friendly-neighborhood creditor, say you're out of work, can't pay the minimum dues, need a break, and you can know that Creditor-Man will say, HITMP? III. Then What? Once you default on your credit card agreement, Creditor-Man will refer your file to Collector-Man. Collector-Man is employed by virtue of your default, yet does not refrain from self-righteous accusation, because it's what he's paid to do. Creditor-Man may call you, and call you, and call you, and then call again. He may call your employer. He will do so because it inflicts pain, it will mortify, and it will get him paid. A colleague of Collector-Man is Military-Collector-Man or MCM. If you are a service-member who cannot pay her military credit cards, MCM will not call you at work; MCM will call your commanding officer. This is why a soldier should be wise not to apply for in-house credit. Civilian employees likewise suffer prejudice should they borrow from their employer. Nordstrom workers are fired if they default on their Nordie-issued credit cards. (Note: Nordstrom CANNOT fire Debtor-Man if he files bankruptcy, a process in which Federal Law preempts Nordstrom Law.) Creditors do not protect "their own." However, Nordstrom is useful to me because its downtown second-floor is a shortcut between mall parking and the San Diego bankruptcy court (Yes, San Diego has a downtown). Then again, I always get dirty looks every time I stop and play their piano. Maybe I shouldn't bring my tip jar. IV. Creditor-Attorney-Man When Collector-Man can't collect, he engages Creditor-Attorney-Man ("CAM"). CAM's job is to sue you, get a judgment, and garnish your wages. This is the inevitable culmination of the collection process. You may not ever see CAM, yet you will get to meet Process-Server-Man who will deliver your summons, and Sheriff-Man, who will garnish your wages. V. (Chapter 7) Trustee-Man When you file chapter 7 or chapter 13 bankruptcy, a case trustee is appointed. Trustee-Man's role is particular to the bankruptcy chapter. Trustee-Man's role in chapter 7 is two-fold. 1) Determine if you have enough stuff to merit liquidation (don't fret, it's rare) and 2) Refer your matter to the United States Trustee (more on UST-Man later) if there's something fishy--a fact, which once contributed to a glut of referrals of commercial-fishermen debtors and prompted the inception of 11 US Code Chapter 12: Adjustment of Debts of a Fisherman. TM does not represent Creditor-Man, Collector-Man, or Creditor-Attorney-Man. Yet, TM's interests align with those parties insofar as TM is obliged on rare occasion--like it or not-- to liquidate Debtor-Man's assets. This occurs if Debtor-Man has too many luxuries or wishes to have his cake and eat it. Liquidation necessarily benefits TM; the Bankruptcy Code provides for TM compensation from liquidation proceeds. Nothing wrong with that--but Debtor-Man must know the Meeting of Creditors was not conceived to be a friendly get-together. In fact they don't even allow food in the waiting room.*** VI. Chapter 7 Trustee-Man-Attorney-Man By the numbers, most Chapter 7 Trustee-Mans are attorneys (they don't need to be attorneys), yet if a disputatious dispute shall arise with Debtor-Man, TM shall employ Trustee-Man-Attorney-Man. In other words, the attorney TM employs his own (big-gun) attorney to litigate; this attorney-within-attorney scheme is commonly referred to (by me) as the Bankruptcy Russian-Nesting-Doll. Again, it's cool so long as Debtor-Man understands what he's up against. VII. Chapter 13-Trustee-Man Chapter 13--in a wee nutshell--involves repayment of debt (often pennies on the dollar) through a payment plan, which we call... the Chapter 13 Payment Plan. Trustee-Man's role in chapter 13 is to disburse Debtor-Man's Plan payments among DM's creditors. In Chapter 13 Land, Chapter 13-TM, Chapter 13-TM-Attorney-Man (yes, that Russian nesting doll thing, again), and... (welcome back!) Creditor-Attorney-Man, all seek to increase DM's plan payments or dismiss DM's case. Alone, DM seeks to maintain lower payments and preserve his case. VIII. Creditor-Attorney-Man (ii) He showed up in the context of pre-petition (before filing bankruptcy) lawsuits and got a shout-out in our last Roman numeral. In the context of bankruptcy, Creditor-Attorney-Man may also object to the discharge of debt. This means that if CAM suspects you didn't do right by Amex, Discover, and Capital One, he will sue after you filed bankruptcy. The purpose is to obtain a ruling that a particular debt shall survive your bankruptcy. How so-- is bankruptcy not a forgiving, second-chance kind-of-thing? Well, it IS, but there are limits. It is a privilege for an honest, yet out-of-luck debtor. If CAM reveals you charged $2000 for plane tix on the eve of filing, he'll flag you; if you flew to attend a parent's deathbed, you may still be deemed guilty till proven otherwise. IX. United-States-Trustee-Man A member of the Department of Justice, UST-Man investigates fraud, abuse, and other unpleasantries. In chapter 7, he may seek dismissal for "presumed abuse." This happens if on paper it appears you have enough dough to repay (some) debt in chapter 13. Yet, repayment ability is not black and white. The presumption of abuse may merit rebuttal. UST-Man and UST-Man-Attorney-Man (Russian nesting is rampant) may also object to discharge and deny you the privilege of debt relief. This might happen if you bought those bankruptcy-eve plane tix. UST-Man will also prosecute if you conceal assets or lie under oath. Don't do those things. A $500,000 (non-dischargeable) fine and/or up to 5 years in prison apply. To illustrate the severity, that is tantamount to the penalty for copying your DVD of Justin Bieber: Never Say Never. How do you skip those FBI warnings anyway? It takes for-EVER to queue up a DVD. The point: any one of the above Men may say of Debtor-Man's troubles... HITMP? X. Debtor-Attorney-Man With the sheer number of elements in potential opposition, Debtor-Man is alone, and perhaps scared. Which is why when persons ask, Do I need an attorney to file bankruptcy, I answer, Yes, if you'd rather not be alone.

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