Weneta M.A. Kosmala


Chapter 7 Trustee

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The following tips may improve the outcome of a Chapter 7 case for creditors:

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GOT INFO?


If you have information concerning the Debtor's affairs or potential assets of the bankruptcy estate, the Trustee is very interested in hearing from you. Please provide a summary in writing, attach supporting documentation, and send it to the Trustee as soon as possible:

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Weneta M.A. Kosmala

Chapter 7 Trustee

3 MacArthur Place, Suite 760

Santa Ana, CA  92707

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MEETING OF CREDITORS


You may appear at the Trustee Meeting and ask questions relating to the bankruptcy estate.  Because of time constraints, if you have extensive questions relating only to your claim, the Trustee may ask you to conduct your own examination under Rule 2004 of the Federal Rules of Bankruptcy Procedure.  (Make sure to check Local Bankruptcy Rule 2004-1 for additional procedural requirements.)  The Trustee has a fiduciary duty to the creditor body, but does not represent individual creditors in matters that do not affect the estate as a whole.  You should retain your own counsel to handle these matters.

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THE PROOF OF CLAIM


When you file a Proof of Claim, avoid the most common mistakes by following these simple rules:

FILE TIMELY:  Late-filed claims are paid only after timely claims, and there usually are not enough funds to pay late claims.  If the Debtor has listed you in the bankruptcy, you should receive a notice from the Court of the deadline, with a web address for the Proof of Claim form.  That link will lead you here.

ATTACH SUPPORTING DOCUMENTATION:  Attach the contract, judgment or statement of account that your claim is based upon. If there are no such documents, attach a Declaration stating the basis of your claim. Include the following language at the end, with your signature under it: "I declare under oath and under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information and belief, and that this was executed on [DATE] at [PLACE], California."

CHARACTERIZE YOUR CLAIM PROPERLY:  Check the right boxes characterizing your claim. If you check the wrong box, the Trustee will have no choice but to object to your claim.
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  • Administrative:  Some debts incurred after the bankruptcy was file may qualify as "administrative expenses".  Click here for the Bankruptcy Code section dealing with administrative expenses.  Administrative expenses are not to be raised by way of the "Proof of Claim" form, but must be allowed by the Court.  Please consult with your own counsel concerning the filing of a request for the allowance of your administrative claim.
  • Priority:  If your claim fits within one of the pre-petition "priority" categories, check the appropriate box on the Proof of Claim form.   Click here for the Bankruptcy Code section dealing with priority claims.  Examples of claims that may be entitled to priority are wage and support claims. If you are not sure if your claim qualifies, ask an attorney. You are NOT entitled to priority unless the law allows, so do not make a priority claim if you are not entitled to it. Making a false claim is punishable under federal law, and the Trustee will object to your claim.
  • Secured:  If you have collateral for your claim, check the "secured" box. Your documentation should establish the collateral, and your interest in it.  Some secured claims travel through bankruptcy unimpaired, others are affected by the bankruptcy.  Click here for the Bankruptcy Code section dealing with secured claims. Seek legal counsel if you are unsure of the effect of bankruptcy upon your claim or your collateral.
  • Mixed claims:  If you have claims in more than one category, check all appropriate boxes. It would be helpful if, along with the substantiating documentation for your claim, you would attach a sheet summarizing all of the components of your claim.  For instance:

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Administrative $xxx
Secured $xxxx

Priority $xxx
Unsecured $xxxx
Total $xxxx

 

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AMENDMENTS:  If you amend a claim, please indicate clearly that it is an amendment, and refer to the earlier claim by date.  There is a place on the Proof of Claim form to do this.

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ADDRESS CHANGES:  Keep track of your Proof of Claim. If you move, or if the claim is transferred to another party, file a Notice of Change of Address and a Notice of Transfer of Claim.  It sometimes takes years before the Trustee can mail out payments to creditors.  You would be surprised how many checks the Trustee sends out, only to have them returned because the address is no longer good.

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OBJECTIONS TO CLAIMS


A part of the Trustee's job is to address issues related to claims.  If the Trustee challenges your claim or requests information or documents from you, please respond promptly and constructively. Often, animosity has developed between the Debtor and creditors before the bankruptcy filing. The Trustee was not a part of that process. The Trustee will analyze claims according to the information in her possession, and the applicable law. If you disagree with the Trustee's position regarding your claim, put your position in writing, and attach supporting documentation. The Trustee may agree with you, or at the very least, the issue can be narrowed and framed effectively for the Judge, who will make the ultimate decision.

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Last Updated December 30, 2016.

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