According to the U.S. Trustee, each trustee should consider all relevant circumstances when deciding whether to seek turnover of the payments in a particular case. Factors to consider include:
• The payment amount and any interest of a non-debtor spouse or other person in the payment;
• The cost of recovering and administering the payment, including litigation with a borrower in bankruptcy who may seek a judicial determination regarding whether the funds are subject to administration;
• The extent to which recovering the payment will enable creditors to receive a meaningful distribution; and
• The applicability of state and federal exemptions.
The US Trustee has suggested it will not seek to compel a trustee to recover payments that the trustee, in the exercise of discretion, decides not to recover.