Does Trustee have a duty to review child support?

[qwerty64]

Ex filed Chapter 13 owing monthly child support and arrearage for past due support.

I filed proof of claim for the arrearage. Ex filed an objection stating he is current. He is NOT current. If that's not insulting enough, ex has not been paying the full monthly child support while the case is pending.

I contacted the trustee's office to see if they would object. They said they can't. That this would be hearsay. They say I have to file my own objections, attend hearings, bring documentation, etc.

So this begs the question: Does a Chapter 13 trustee have a duty to investigate child support?

Domestic Support Orders are supposed to be high in the pecking order. The trustee is objecting to the proposed plan over past due income taxes but not past due child support.

How is it that the trustee can procure documents from a government entity (tax returns, IRS) to establish whether or not a debtor is current on their income taxes, but the trustee cannot procure documents from a government entity (payment history, state child support enforcement) to establish whether or not a debtor is current on a domestic support obligation?

Hearsay?

[despritfreya]

Does a Chapter 13 trustee have a duty to investigate child support?

No. The duties of a Chapter 13 Trustee are outlined by 11 USC 1302. That provision relates back to some of the duties required of a Chapter 7 Trustee. The only duty the Trustee has when dealing with claims is to “if a purpose would be served, examine proof of claims and object to the allowance of any claim that is improper”. As it relates to a DSO, the only thing the Trustee must do is to provide certain notices as described under section (d) of 1302.

The Trustee cannot act on your behalf. He/she is not your attny. In fact, 1302 states that his/her job is advise and assist the debtor, not the creditor.

You need to defend your position as it relates to this matter, either on your own, with the assistance of a private attny or, if you are truly owed child support, possibly with the assistance of your State’s child support enforcement division.

Des.

[justbroke]

I couldn't agree more. This is a private cause of action and the Trustee has no standing. You may need to get the Family Court to enforce the DSO.

As to the objection to the claim, it was your responsibility to answer that objection and seek a hearing on the matter before the judge. At that time, you present evidence that supports the claim and supports that the debtor (ex spouse) is not in compliance with the DSO obligation. Additionally, I would move to make the DSO an "administrative" or "priority" claim in the Chapter 13.

Again, you need to get that claim to be allowed as an administrative claim. I concur that perhaps you can get the State's enforcement division to intervene and fight for this claim! I think you are at a disadvantage because you made assumptions that the Chapter 13 Trustee is there to defend creditor claims! Nothing could be further from reality. I have seldom read about a Chapter 13 Trustee objecting to or even policing claims!

[kornellred]

The only way a Domestic Support Order is terminated is when the dependent child is emancipated. Arrearage amounts will always be owed, even after the child is emancipated.

Oh yeah - tell the deadbeat that the Chapter 13 discharge will not be forthcoming until the DSO arrearage amount is taken care of.

[qwerty64]

Thanks everyone. I filed a response to the objection to claim plus my own objection to confirming the plan.

Now, say the court orders a hearing to establish whether or not this is a valid claim. Our divorce was bitter and contentious. I really don't relish being in the same room with him to argue over money again.

Can I have someone, a non-attorney such as my sister, appear at the hearing to present the evidence?

A private attorney seems futile as they charge for travel time to attend hearings. No point in spending $1000 in an attempt to recover $1500 - especially when the arrearage would be paid over 60 months while I would have to pay the attorney up front.

[despritfreya]

You cannot have someone other than a licensed attny appear on your behalf - even someone with a Power of Attorney can be an issue.

If you do not want to physically appear you might consider filing a Motion to Appear Telephonically. Not sure it would work but it might be worth a try. Just remember, telephones do not let a Judge see ones demeanor, good or bad. In my opinion, telephonic appearances show a lack of disinterest in the proceedings, should be used sparingly and only when absolutely necessary.

Des.

[Pjmax]

Personally, I wouldn't go alone under those circumstances. Have any 'bodyguard-size' friends to accompany you?

[justbroke]

I would attend the hearing. You can bring a friend but they certainly can't "represent" you, cannot speak for you, and cannot even walk up to the podium when you are called. The Judge will be the trier of fact and will probably be the only one to ask questions. If you have evidence, make sure you look up the rules of entering evidence for that District. It should be in their Local Rules on their website.

Typically, evidence must be "marked" and a cover sheet provided. Copies for the Clerk, Judge and defendant are typically required as well (you bring these with you). You might be able to file the evidence in advance (via the Clerk). If you have a court order from another court, get a certified copy and bring that original certified copy and ask to have it entered as evidence when you are called (again, you should have copies for everyone). Additionally, any other evidence, make sure it is certified if possible, or have the agency testify directly in court.

It may be real easy and the Judge will probably side with you. it's all about Evidence at this point!

[qwerty64]

What if I hire an attorney? Can the attorney appear for me then include "reasonable" legal fees in an amended claim?

[justbroke]

What if I hire an attorney? Can the attorney appear for me then include "reasonable" legal fees in an amended claim?

Absolutely! If you can hire an attorney to do it on contingency, that would be perfect.