Do You Have to Go To Court to File Bankruptcy?

Don’t let concerns about having to go to federal court deter you from filing for bankruptcy protection and getting the debt relief you deserve. You might have to go to court in some circumstances, but the majority of filers won’t see the inside of a courtroom. All bankruptcy filers must attend a 341 hearing, also called a meeting of creditors, but these hearings aren’t conducted in a courtroom or before a judge.

Are Court Appearances Necessary in Personal Bankruptcy Cases?

Many people feel nervous about the possibility of going to court. Fortunately, most people who file for bankruptcy protection never have to appear before a bankruptcy judge or go to a bankruptcy courtroom. But bankruptcy law requires all filers to attend at least one official hearing known as the 341 hearing or meeting of creditors. This hearing isn’t as scary as the name implies. It’s not held in a courtroom, and creditors rarely show up to the meeting of creditors.

Other than the 341 hearing, the only time filers may need to go to the bankruptcy court is to file their bankruptcy forms with the clerk. If you hire a bankruptcy lawyer to help you through the bankruptcy process, your lawyer will file your bankruptcy petition for you.

Beyond this, you’ll likely only need to make a court appearance if certain issues arise in your bankruptcy case. And even if these issues arise, they can usually be resolved outside the courtroom. While the bankruptcy process is complex, rest assured it’s not generally as adversarial as civil lawsuits or criminal cases. 

Court Appearances: Chapter 7 vs. Chapter 13 Bankruptcy

Most individuals and married couples file Chapter 7 bankruptcy, which is the simplest and most straightforward bankruptcy filing. Additional hearings beyond the meeting of creditors are rare in a Chapter 7 case. Typically a Chapter 7 bankruptcy takes four to six months to complete. At the end of a successful Chapter 7 bankruptcy case, the filer receives a bankruptcy discharge, which is a court order that effectively erases certain debts. 

Chapter 13 bankruptcy cases, also known as reorganization cases, are more complicated than Chapter 7 cases and may require you to go to court. The court has to approve your Chapter 13 repayment plan, which requires a confirmation hearing. Depending on your district and whether or not you have a bankruptcy attorney representing you, you may or may not have to attend the confirmation hearing. 

In a Chapter 13 bankruptcy case, your debt is reorganized and you’ll have a repayment plan to pay back some or all of your debts over three to five years. Because Chapter 13 cases are so long, filers’ financial situations commonly change during the plan. If this happens to you, you may have to go to court.

What Happens at a Meeting of Creditors (341 Meeting)?

The U.S. Bankruptcy Code requires all Chapter 7 and Chapter 13 filers to attend a meeting of creditors. After you file your bankruptcy case, the court will mail you and your creditors notice of the time and location of the meeting of creditors. The hearing is overseen by the bankruptcy trustee appointed to administer your case. A judge won’t be present. The hearing will be held in a meeting room at the courthouse, in an offsite office building, or virtually. 

The bankruptcy trustee will verify your identity and your Social Security number at the hearing. You’ll need to show a valid photo I.D., such as a driver’s license or passport, and show your Social Security card or another valid document with your Social Security number on it.

Beyond verifying your identity, the hearing allows your creditors and the bankruptcy trustee to ask you questions under oath about the information in your bankruptcy petition. They may ask about your assets or finances. 

While creditors can come to the hearing, it’s rare for them to show up. Even if a creditor does attend the meeting, they’re not allowed to berate you or ask you why you filed for bankruptcy protection. The majority of 341 hearings are short, often lasting less than 10 minutes. All you have to do is answer the questions truthfully to the best of your knowledge. 

The Bankruptcy Trustee Will Ask Questions About Your Case and Financial Situation

The bankruptcy trustee may ask questions about your income, expenses, assets, or the property exemptions you’ve claimed. Exemptions are used to protect your property through the bankruptcy process. For example, federal law covering bankruptcy allows you to keep assets valued up to a certain amount, such as a certain amount of equity in a home or car. The majority of bankruptcy filers are able to keep most or all of their property and personal belongings. 

In the rare event that one of your creditors shows up to the meeting of creditors, they’re only allowed to ask you questions about the information in your bankruptcy petition and the nature and location of your assets. If they try to ask questions beyond this or if they try to shame you for filing, the trustee can shut them down. 

At the meeting of creditors, you can expect the trustee to ask:

• You to verify your identity and Social Security number.

• If you reviewed and signed your bankruptcy petition before filing.

• If everything in your bankruptcy petition is true and correct to the best of your knowledge.

• If anything has changed or needs to be amended in your petition since the day you filed.

• If you listed all of your property, assets, debts, and expenses. 

• If you listed all of your creditors.

• If you have an obligation to pay alimony (spousal support) or child support and if you’re current on those payments. 

• If you’ve filed for bankruptcy before.

Be truthful and accurate when answering the trustee’s questions. If you don’t understand a question, ask for clarification before answering. The trustee isn’t an opponent. They’re there to administer your case. 

What Other Circumstances Might Require Court Appearances?

In addition to the mandatory meeting of creditors, you may be required to make a court appearance in your bankruptcy case in certain circumstances. The following discusses some, but not all, of those circumstances. 

Fee Waiver Hearing

There is a filing fee to file bankruptcy. If you can’t afford to pay the filing fee upfront, you can apply to pay the fee in installments or ask the court to waive the fee if you’re eligible. 

After reviewing your application, the bankruptcy court will either:

• Grant the fee waiver, 

• Deny the fee waiver and order you to pay the fee on a payment schedule, or 

• Schedule a hearing to decide whether or not to grant your fee waiver request. This is rare, but if it happens, you must attend the fee waiver hearing. 

Motion To Extend the Automatic Stay

The automatic stay is a benefit of filing for bankruptcy. It stops your creditors from collecting from you. It stops collection calls, bills, and lawsuits for nonpayment of debt. It can also stop foreclosure proceedings or car repossessions at least temporarily. As soon as you file for Chapter 7 or Chapter 13 bankruptcy, the automatic stay goes into effect.

The automatic stay usually stops collection until the bankruptcy case is over. But if you’re filing a second case shortly after the court dismissed your first case, then the automatic stay lasts for 30 days unless you file a motion (ask) the court to extend the stay. At the hearing to extend the automatic stay, the bankruptcy judge may ask you to explain why your previous bankruptcy case was dismissed, what circumstances have changed between the first filing and this new bankruptcy filing, or other questions about what you hope to accomplish with your second bankruptcy filing. 

Motion To Lift the Automatic Stay

You must continue making payments on secured debt during bankruptcy if you want to keep the property serving as collateral. Car loans and mortgage loans are the most common types of secured debt.

If you stop making payments on your car or home, your creditor has the right to repossess your car or foreclose on your real estate. If you’re in bankruptcy, your creditor must first ask the court to lift the automatic stay before they can repossess your car or foreclose on your home. If you oppose your creditor’s motion to lift the automatic stay, then you’ll likely have to attend a hearing to argue why the court shouldn’t lift the stay. 

Adversary Proceedings

An adversary proceeding is a lawsuit filed within a bankruptcy proceeding. The filer, the bankruptcy trustee, or a creditor can file one. Adversary proceedings in consumer Chapter 7 or Chapter 13 bankruptcy cases are most commonly filed to challenge the filer’s right to bankruptcy discharge or to challenge the dischargeability of a particular debt. If an adversary proceeding is filed in your bankruptcy case, then you’ll be required to go to court. 

Adversary proceedings operate similarly to other civil lawsuits. If the parties can’t negotiate a settlement, the proceeding advances, and they conduct discovery, argue motions, and try the case before the judge. 

Chapter 13 Confirmation Hearing

Chapter 13 bankruptcy involves a repayment plan, which the bankruptcy judge assigned to your case must approve. Often the judge will approve a Chapter 13 plan on the recommendation of the trustee. In some cases, a hearing isn’t necessary. If you have an attorney representing you in your Chapter 13 case, generally they can attend the hearing in your place. 

If the judge doesn’t approve your plan and you’re not represented by a bankruptcy attorney, you may need to go to court. In court, you can explain why your plan is feasible, that you can afford the monthly payments, and that you’re using all of your disposable income for the plan. 

Bankruptcy Court Hearings Can Now Be Conducted Virtually

In response to COVID-19, many court proceedings are conducted virtually by videoconference (Zoom, Skype, etc.) or phone. Virtual hearings operate like in-person hearings. 

It’s your responsibility to check the court’s website for any protocols the court may use or have in place to facilitate virtual meetings. If a virtual hearing has been scheduled in your bankruptcy case, make sure to check your bankruptcy district court’s website for any meeting of creditors' regulations and requirements as well as the United States Trustee Program (USTP) protocols you need to follow.  

Let’s Summarize…

All bankruptcy filers will have to attend a 341 hearing, also known as the meeting of creditors. If you haven’t hired an attorney to represent you, you’ll have to go to the bankruptcy court to file your bankruptcy paperwork. Most bankruptcy filers won’t go to any formal hearings before a judge. There are some circumstances that do require filers to appear in court, but these aren’t very common.