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341 Hearing – Meeting of the Creditors Chapter 7

What are the basics

Typically a debtor need attend only one hearing which is different than other forms of litigation. The hearing is typically held one month after filing, but, depending on case load, may be held later than that.

Location

The location of the hearing depends on which county you live in. For Lake, Cuyahoga, Lorain, and Geauga counties, you are assigned to Cleveland. If you live in Summit, Portage, or Medina Counties you are assigned to Akron. The meeting locations is not always the courthouse. In Akron, the hearings are held in a shopping mall. Cleveland, Youngstown and Canton are held in their Courts. Ashtabula County (which is part of Youngstown’s court system) meetings in Jefferson. It is therefore important that you keep your hearing notice. Here are the meeting locations in our trustee region.

The Reason for the 341 Hearing

You do not see a judge at a 341 hearing (if all goes well you will never meet the judge). Instead you meet someone who is know as the trustee. He or she is the closest person to an opposing counsel you will meet in the bankruptcy system. The job of a Trustee is to determine if there is anything that he or she can take from your, sell it, and deliver the proceeds to the creditors. This examination is being done to determine if there is anything that they can take.

While the above paragraph may sound a little frightening, most of the trustees are actually nice and all that I have come across are fair. Furthermore, the trustees as well as ourselves must follow the law. That law is pretty clear what a trustee may or may not take so there is likely to be no surprises.

What You Need to Bring

The rules of bankruptcy procedure require that your bring three items to your bankruptcy hearing.

  • A government issued id (drivers license or state id)
  • A government issued document with your social security number on it (social security card, social security statement, 1099, w2 But not your tax return or your bankruptcy notice
  • Your most recent bank statement
  • Most recent paystub

Furthermore the Bankruptcy Code requires under 11 USC 521(e)(2) that I provide the trustee with a copy of your most recent tax return 7 days prior to your hearing. If that does not happen the court can dismiss the case.

What to Wear and Kids

I would suggest business casual for the hearing. Pants and a collared shirt is adequate. It is not a good idea to bring your kids to this hearing, but if there is no alternative make sure that they behave during the hearing.

How Long

The hearing itself should last about 5-10 minutes. However keep in mind that they may not call you right away. The questions that will be asked are similar to the questions that I asked at the signing consultation, except where most of the time at a signing is focused on the debts, this hearing will be focused on property.

What Happens Next

After the hearing, the trustee may ask for additional documents, require you to come to an additional hearing, or conclude and end the hearing.

At a later date I will go into greater detail about this hearing.

APPLICATION FOR CUSTODY PROCESS

In the State of Ohio if a child is born outside of wedlock custody is automatically given to the mother. 3109.042. The Father can obtain parenting rights by filing an application for custody with the Juvenile Court.

STEP ONE – INITIAL CONSULTATION – At the initial consultation we will review the situation and try to determine what is the best situation for the client and the child. We will decide whether we want to obtain full custody rights, a shared parenting plan, or merely obtain parenting time rights wpeugk4. We also need to know whether there is already a court order for custody and if so, then decide if a modification of custody is warranted. This is also an opportunity to ask any questions about the process. There is no fee for the initial consultation.

STEP TWO – SIGNING CONSULTATION – We will prepare an application for custody, a parenting affidavit, and if the other parent is in agreement a parenting plan and waiver of service. I will ask for the initial fee and court costs at this time. I will also need 1) birth certificate of child, 2) proof of parentage (child support order or acknowledgment of paternity), and either the social security number of the child or acknowledgment that you do not possess the social security number.

STEP THREE – CASE FILING – The case is filed to the juvenile court. The Court will attempt service on the other parent through certified mail. If the other parent does not pick up the service the court will inform me and I will inform the court to service by regular mail. As long as that is not returned service is perfected. Nothing can happen in the case until service is perfected.

STEP FOUR – MEDIATION – This step does not happen in every case, but it is common in Cuyahoga County Juvenile Court if there is not an emergency. The court will attempt to mediate a custody agreement through their mediation services. Both parents attend. Attorneys are not permitted to participate. The goal of the court is to try to obtain a shared parenting plan without the expense of going through the full litigation situation. While you must attend, you are not required to come to an agreement. If the parties do come to an agreement then the parenting plan is submitted to the court and become the final order. If the parties do not agree then the case will go before a magistrate or judge in the juvenile court.

STEP FIVE – PRETRIAL – The Court will hold one or more hearings to see if the parties, with counsel, can come to an agreement with regards to parenting time. The court may also address other issues that occur in the case. Typically, the judge or magistrate with talk with counsel and non-represent parents first and then bring in the represented parents. In disputed cases the court will typically assign a guardian ad litem to give an opinion what the best interest of the child are.

STEP SIX- DISCOVERY – While the pretrials are happening their will also be opportunity for discovery. This is the chance for the parties to gather information from the other side so that they can prepare their case. Formal discovery is done through interrogatories, depositions, admissions, and document requests. Another avenue in discovery is known as a subpoena. There can also be informal agreements to produce documents. If a party refuses to provide information that the law allows, then a party can ask for court intervention to obtain the information.

STEP SEVEN – TRIAL – If there is no agreement that comes out of the pretrial then the court will set up a trial date. At the trial we will be permitted to subpoena witnesses to testify on your behalf. You will also have an opportunity to testify. The attorney will also have an opportunity to cross-examine witnesses. All custody trials are bench trials and the magistrate or judge gets to decide the case. A guardian ad litem will also issue a report with a recommendation of custody.

STEP EIGHT – MAGISTRATE OPINION/ORDER/APPEAL – If the trial was heard by a magistrate, the magistrate will issue an opinion. If you do not agree with the opinion you can object and have a review hearing with the judge. When the objection period has passed (in most cases 14 days) the judge will adopt the magistrate opinion as an order. If the trial was heard by a judge, then an order will be issued. A party has the ability to appeal the decision within 30 days after the ruling on objects (in case of a magistrate heard case) or the order of the judge. This would begin the appeal’s process.

If there are any questions do not hesitate to contact us.

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THE MISDEMEANOR CRIMINAL PROCESS

Arraignment

DO I NEED TO ATTEND: Depends on the court (however you should always assume that you need to). If you need to and you fail to show up a warrant for your arrest will be issued.

WHAT HAPPENS: Typically the court will tell you your options to plea (“no contest”, “guilty”, or “not guilty”). They will also tell you the nature of the crime and the possible punishment.

If you plead guilty then the court may proceed to sentencing or may have you come back for another day to be sentenced. A plea of no contest is an admission of the facts but no admission of guilt. This plea usually ends up with a finding of guilt and sentencing at that time or the court having you come back another day for sentencing. A plea of not guilty will result in a pretrial or trial being set for another day.

There is a possibility that a bond hearing will occur to determine if a bond should be set, but in a misdemeanor case this is unlikely. Most courts have bond schedules already set up with their police departments and the bond has already been set. An exception to this would be someone arrested for domestic violence or other crime of violence where other condition than bail money might be required (such as a no contact order with the victim).

Discovery

DO I NEED TO ATTEND: Not really a hearing, so no.movie The Space Between Us 2017 streaming

WHAT HAPPENS: Discovery is the process of getting information from the prosecutor. A lot of times discovery happens at a pretrial; however, many prosecutors will hand over materials on a letter from the counsel. Usually discovery includes the police report, witness statements, and prior crimes.

In addition we have subpoena power to ask for documents from other parties.

Suppression

DO I NEED TO ATTEND: Most of the Time Yes

WHAT HAPPENS: In some cases there are flaws in an investigation that require that types of evidence be thrown out. Examples of such flaws are improper executions of a warrant, an unreasonable search and seizure, or an improper administration of a test.

A motion for suppression can be filed which will result in a hearing to determine if the item should be suppress. Actual suppression of evidence is rare. However, even if the suppression does not work it can sometime lend light to other parts of the case.

Pretrial

DO I NEED TO ATTEND: Almost always yes.

WHAT HAPPENS: A pretrial is a court hearing where the defense and the prosecution meet to try to resolve the case. In most cases the resolution is a plea bargain (lesser charges). In general, pretrials occur without intervention of the court. If you agree to the proposed plea bargain the court may set a sentencing or do the sentencing at the pretrial (we almost always know prior to the plea bargain).

If the case is not resolved or there are some additional issues that need to be ironed out the court can set the case for a subsequent pretrial or set the case for trial.

Trial

DO I NEED TO ATTEND: Yes

WHAT HAPPENS: If there is a disagreement regarding to the facts in the case or there is no resolution, the case is set for trial. In Ohio, misdemeanor cases are set for a bench trial unless the defendant requests a jury trial ten days before the trial.
Witness are called and there is cross and direct examination. You do have a right to remain silent (meaning the prosecutor cannot compel you to testify in your trial.

After the trial a verdict of guilty or not guilty is entered. If found guilty the court can sentence at this point or it can set up a sentencing hearing.

Sentencing

DO I NEED TO ATTEND: Yes

WHAT HAPPENS: A court may in more serious misdemeanor cases require a person to go through a pre-sentencing investigation (PSI) with the probation department. The department will then issue a report with the findings of the investigation and sometimes a recommendation for sentencing.

At a sentencing generally the prosecutor is given a chance to speak at the sentencing (most of the time they don’t). I am given a chance to speak for leniency and you are given an opportunity to to say something on your behalf. A sentencing is not a time to argue your innocence (that can increase the penalty). If that is what you want to do, then don’t say anything. After hearing this the judge imposes sentence. Most first time misdemeanors with the exception of domestic violence and other violent acts don’t result in jail time. Most jail sentences are in the 1-10 day range for first offenses.

THE CHAPTER 13 PROCESS

STEP ONE – INITIAL CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – 2 Paystubs, Tax Return, and a List of Debts, the bills, or your credit report.

WHAT ARE WE DOING AT THIS CONSULTATION – We are going over your financial position to determine if you qualify for a Chapter 7 or Chapter 13 bankruptcy. In a Chapter 13, a key issue is what the plan payment will be. We will try to do an analysis of your debt (more so than we would in a Chapter 7 Bankruptcy. Therefore it is important that you bring information on your secured debt.

Fee – No, this is a free consultation and you are not obligated to go any further.

How Long – 45 mins to 1 Hour

STEP TWO – CONSUMER COUNSELING COURSE

WHERE – Online Course

Recommended Course – DebtorCC – www.debtorcc.org – cost $14.95

List of Other Approve Companies – United States Trustee ListNote – We are in the Northern District of Ohio

WHY DO I HAVE TO DO THIS – Under the Section 109(h)(1) of the Bankruptcy Code a debtor must take this course to qualify to file for bankruptcy. If the case is filed without the certificate, it will be dismissed.

STEP THREE – SIGNING CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – I typically give you a customized list. However every case requires the most recent tax return, 2 months of pay stubs, the debts you want to include on the bankruptcy, and a copy of your car title.

WHAT ARE WE DOING – We are reviewing our notes from the Initial Consultation (Step One) and we are preparing a document called a bankruptcy petition. Since this is a Chapter 13 we are also putting together a Chapter 13 Plan. We will list all your assets and debts into the petition and its total length is about 60-70 pages in most cases. I will also be copying documents that you bring with you. Finally at the end, we will sign the document, and if everything is in order, file the case. (Step Four).

HOW LONG DOES THIS MEETING TAKE? – 2 – 3 Hours.

FEES – Typically I would ask for the pre-filing fee at this point. The remaining amount of the bankruptcy fee will be provided as a claim in the bankruptcy plan. Court costs should also be paid at this moment, however, it makes sense at time to enter an installment plan with the court (though this is more difficult to do in a Chapter 13.

STEP FOUR – CASE FILED

WHEN – Usually at the signing consultation, however if there is a need for delay (not all requirements met) we file when those requirements are met.

WHAT HAPPENS WHEN I FILE – An automatic stay is impose that prevents most collection actions (garnishments, utility shutoff’s, repossessions).

ARE THE PLAN ARRANGEMENTS MADE AT THIS TIME – Yes, we will prepare and file what is know as a wage order. It will be filed with the court, approved by the judge, and sent to your employer. They will then start making pro rata payments to the bankruptcy trustee.

STEP FIVE – FIRST PAYMENT

WHY IS THIS IMPORTANTThis is the most important step if you want a successful chapter 13. It will take about a month for the wage order to kick in. This does not excuse you from making the first payment on the bankruptcy. The plan payment is due within 30 days of filing. If you do not do this, you will be a month behind by the time the wage order kicks in. This can result in a dismissal by the time we reach the confirmation hearing.

WHERE DO I MAKE THE PAYMENT TO – Cleveland Trustee – Craig Shopneck, Chapter 13 Trustee, P.O. Box 593, Memphis, TN 38101-0593. Make sure that your case number and name must be on the check or money order.

STEP SIX- 341 HEARING

WHERE – United States Trustee Hearing Room (In Cleveland) – 201 Superior Avenue, Cleveland, OH 44114. It is on the sixth floor.

WHAT TO BRING – Your ID and your Social Security Card.

WHEN – Approximately 30-45 days after the filing of your case.

DOES THE ATTORNEY ATTEND – Yes I do.

WHAT IS THIS FOR – Under Section 341 of the Bankruptcy Code (hence the name), a court official known as a trustee has to conduct a meeting concerning your petition. The Chapter 13 341 is a bit different than a Chapter 7 341. First of all there is less emphasis on the property and more emphasis on making sure that income, expenses, and plan provisions are correct. The meetings are generally shorter and they are also less confrontational. Basically the idea is to make sure that everything is in order.live streaming film War for the Planet of the Apes online

STEP SEVEN- OBJECTION TO CONFIRMATION

WHAT IS THIS ABOUT – Usually within a few days after the 341 hearing the trustee will object to the confirmation of the bankruptcy plan. Not all cases receive an objection but most cases do. The trustee is communicating in their objection what they believe must be done before the court will confirm the case. This can include modification to the bankruptcy plan (changing the plan payment), amendment to the petition (to clarify some aspect of the case), or request for more information.

Generally if the provisions are met the Trustee will withdraw their objection (either prior to or at the confirmation hearing). Objections are written in a form format and are delivered both to the client and the attorney.

STEP EIGHT – CONFIRMATION HEARING

WHEN – Usually 21-35 days after the 341 hearing.

MUST I ATTEND – – No, just the attorney and the trustee attend.

WHAT IS THIS ABOUT? – A hearing is held in front of the Bankruptcy Judge to determine whether the plan should be allowed to continue. It is done on a motion docket, so the judge will spend about 3 – 5 minutes on each case and make rulings on motions. For the confirmation, the trustee usually goes first and recommends whether the plan should be confirmed or not. If the trustee recommends confirmation, then the plan is confirmed, and if the debtor continues to make his plan payment through the duration of the plan (between 3-5 years) the debtor will receive a discharge.

If the trustee does not recommend confirmation, then the court can and often adjourns the case so that the conditions can be met for the plan to be confirmed. If after a few tries the plan is not confirmed then the case will be dismissed.

The one exception to adjournment is when the plan is inadequately funded. At that point the court is likely to dismiss the case. If the funds become available we can file a motion to reinstate.

STEP NINE- FINANCIAL MANAGEMENT COURSE

WHERE – Online Course

Recommended Course – DebtorCC – www.debtorcc.org – cost $9.95

List of Other Approve Companies – United States Trustee ListNote – We are in the Northern District of Ohio

WHY DO I HAVE TO DO THISUnder of the Bankruptcy Code section 727(a)(11) a debtor must complete the financial management course in order to receive a discharge. Failure to do this will result in the case being closed without discharge which requires a motion to reopen (court cost $260.00)

Special heed should be taken in Chapter 13 Cases because the cases typically run 3-5 years. It is easy to forget this course at the end. It is disheartening to go through a plan paying all the money into the plan to only find out that you must pay a 260 dollar court costs to get the discharge. Therefore, do the course shortly after confirmation when you know that your plan is approved.

STEP TEN- DISCHARGE

WHEN – If the Debtor makes it through the 3-5 years of the plan and has met all the obligations of the plan, the court will discharge the case. If you had a car loan in your plan, the car should be paid in full and you should receive the title. If you were behind on your mortgage you should be caught up. You should also be current on pre-petition taxes and child support. If you made it this far, congratulations, you have put yourself in a financially good position.

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