As Judge Haines told Steve McCusker's counsel, "If Mr. McCusker wishes to avail himself of the benefits of bankruptcy, he must also accept some responsibility".
With that pregnant statement about Steve McCusker's sense of responsibility, Judge Haines ordered the "2004 Exam" over Steve's objection.
A bit of background: Creditors of a Bankrupt (whether the Bankrupt is a person or an entity) are entitled to a personal examination of that Bankrupt, called a "2004 Exam". This is cast in stone by the Federal Bankruptcy laws-----there is no escaping it if a Creditor requests it. Steve's counsel didn't have a leg to stand on in objecting to my request.
Steve's counsel, David Brandt, stated that his objection was based on "There shouldn't be a 2004 Exam because we don't need a 2004 Exam", a circular argument if I've ever heard one. I responded by telling Judge Haines about the fact that certain assets had not been included on Steve's Bankruptcy Schedules, which Mr. Brandt said was news to him------but of course later was proven true.
It should also be noted that ultimately Steve admitted to committing fraud, and agreed to a Judgment based upon that admission------in other words, he admitted to my claim under 11 U.S.C section 523. [He has subsequently stated that he didn't understand what he was agreeing to, which seems quite specious considering he stated under oath before Federal Judge Kornreich that he DID understand what he was agreeing to. Steve is an educated man; he is not stupid. Secondly, we had been in negotiation before Judge Kornreich for 4 hours, during all of which Steve was with his own good counsel, Mr. Brandt. It's highly unlikely that Mr. Brandt sat mute without giving Steve advice nor ascertaining that Steve understood the proceedings].
During a 2004 Exam the regular Rules of Evidence don't apply, and a Creditor has nearly UNLIMITED ability to ask anything that the creditor wishes to ask. If the creditor wants to know the Bankrupt's favourite colour, the creditor is entitled to ask and the Bankrupt is compelled to reply.
Judge Haines ordered that the bankruptcy Trustee, John Turner, be present during the 2004 Exam. This was no problem for ME, since I'd ALREADY invited Mr. Turner to attend. In fact I'd also invited the U.S. Attorney because of my concerns about fraud in Steve's Bankruptcy Schedules.
I think that the most important thing a creditor can do in a bankruptcy situation is stay on the good side of the Bankruptcy Trustee. This I tried valiantly to do, in spite of the fact that I actually didn't (and don't) think much of Mr. Turner's way of doing his job. Without a doubt, the reason to become a Trustee is because it's extremely lucrative. In Maine at that time there were only two Trustees, meaning that they were both overly busy. Because the Trustee stands to gain the most money from the largest bankruptcies, it seems clear that they make decisions about what to spend the most time on. In other words, it seemed fairly clear to me from the beginning that Mr. Turner had little interest in this case because he wouldn't make much money off of it, and he had bigger fish to fry.
Secondly, Mr. Turner is not an attorney. While being an attorney is not a prerequisite for becoming a trustee, it's helpful to have an attorney's knowledge of the law in order to properly execute one's duties as Trustee. It became clear to me during the 2004 Exam that Mr. Turner had little knowledge of the Rules, and the broad scope of questioning that they allow.
I had made the decision to conduct the 2004 Exam myself, after consultation with my personal counsel. He and I felt that I knew far more of the details of the case, and thus was better qualified to ask questions, particularly follow-up questions. This was a huge mistake on my part-----probably the biggest mistake I ever made in my dealings with the McCuskers (well, short of trusting Steve in the first place).
I arrived about half an hour early to make sure that the conference room was set up for the Court Reporter, etc. To my surprise, Mr. Turner walked in right behind me. He then began complaining that he'd been up since 2:00 a.m. and had been at the airport, due to some family issue. He complained about how exhausted he was. "Not good", I thought to myself.
A key point in any bankruptcy case revolves around record-keeping, and how well the Bankrupt has done so. Ergo many of my questions revolved around how Steve came to the numbers that he filed with the Court in his Bankruptcy Schedules. I felt that his answers were fuzzy, so I continued that line of questioning.
Steve had told me that at one point when he had separated from Liz, that he had gone to the marital home and that Liz had taken all of his stuff, including his books and files, and thrown them out on the lawn where they had apparently been for a day or several days. So when his answers continued to be all about how carefully he kept his records, I first asked him whether or not he kept his records in his rental condo, or back at his marital home. He stated he kept all his financial records at the marital home.
So I then asked him if those records had spent a few days on the lawn. Mr. Turner, who had no right whatsoever to object, objected to the question, sighing, "Marjorie, Marjorie". I should have told him right then and there to be quiet, and to point out he had no right to object, and that I had the right to ask anything I wished under the 2004 Exam rules.
But as noted earlier in this chapter, I was trying like heck to stay on Mr. Turner's good side, and so was intimidated by his objections......which continued to increase as the Exam went on. I became very flustered, and much of my careful preparation went out the window with Mr. Turner's clear bias.
It's not the Trustee's job to take sides, which Mr. Turner clearly did. However it was my mistake for not taking matters into my own hands and stating the law regarding 2004 Exams to Mr. Turner. For anyone who thinks this account is biased, I can only say that Mr. Turner changed his attitude entirely and was very cooperative once he had to deal with my attorney.
Why should how a creditor is treated by a U.S. Bankruptcy Trustee depend upon whether or not they have a lawyer by their side??? Or whether the Trustee has been up since the middle of the night? [It's interesting to note that it is my understanding that Mr. Turner was indeed taken to court regarding competence in an unrelated action, by attorney George Marcus. I have not been able to confirm this by the publication deadline].
While I did glean some extremely valuable information from the 2004 Exam, I could have done much better. It's easy to blame this on Mr. Turner, but ultimately I must take responsibility for not standing up for my rights.
If there is one lesson to be learned here, it's don't be intimidated. And while staying on the good side of the Trustee may be good advice in a very general way, be most aware that the Trustees don't take the job so that they can make a difference in the world--------like most jobs, they take the job so that they can make money. Furthermore (like any person in any job), they have their good days and their bad days, and it was up to me to recognize that.
A bit of background: Creditors of a Bankrupt (whether the Bankrupt is a person or an entity) are entitled to a personal examination of that Bankrupt, called a "2004 Exam". This is cast in stone by the Federal Bankruptcy laws-----there is no escaping it if a Creditor requests it. Steve's counsel didn't have a leg to stand on in objecting to my request.
Steve's counsel, David Brandt, stated that his objection was based on "There shouldn't be a 2004 Exam because we don't need a 2004 Exam", a circular argument if I've ever heard one. I responded by telling Judge Haines about the fact that certain assets had not been included on Steve's Bankruptcy Schedules, which Mr. Brandt said was news to him------but of course later was proven true.
It should also be noted that ultimately Steve admitted to committing fraud, and agreed to a Judgment based upon that admission------in other words, he admitted to my claim under 11 U.S.C section 523. [He has subsequently stated that he didn't understand what he was agreeing to, which seems quite specious considering he stated under oath before Federal Judge Kornreich that he DID understand what he was agreeing to. Steve is an educated man; he is not stupid. Secondly, we had been in negotiation before Judge Kornreich for 4 hours, during all of which Steve was with his own good counsel, Mr. Brandt. It's highly unlikely that Mr. Brandt sat mute without giving Steve advice nor ascertaining that Steve understood the proceedings].
During a 2004 Exam the regular Rules of Evidence don't apply, and a Creditor has nearly UNLIMITED ability to ask anything that the creditor wishes to ask. If the creditor wants to know the Bankrupt's favourite colour, the creditor is entitled to ask and the Bankrupt is compelled to reply.
Judge Haines ordered that the bankruptcy Trustee, John Turner, be present during the 2004 Exam. This was no problem for ME, since I'd ALREADY invited Mr. Turner to attend. In fact I'd also invited the U.S. Attorney because of my concerns about fraud in Steve's Bankruptcy Schedules.
I think that the most important thing a creditor can do in a bankruptcy situation is stay on the good side of the Bankruptcy Trustee. This I tried valiantly to do, in spite of the fact that I actually didn't (and don't) think much of Mr. Turner's way of doing his job. Without a doubt, the reason to become a Trustee is because it's extremely lucrative. In Maine at that time there were only two Trustees, meaning that they were both overly busy. Because the Trustee stands to gain the most money from the largest bankruptcies, it seems clear that they make decisions about what to spend the most time on. In other words, it seemed fairly clear to me from the beginning that Mr. Turner had little interest in this case because he wouldn't make much money off of it, and he had bigger fish to fry.
Secondly, Mr. Turner is not an attorney. While being an attorney is not a prerequisite for becoming a trustee, it's helpful to have an attorney's knowledge of the law in order to properly execute one's duties as Trustee. It became clear to me during the 2004 Exam that Mr. Turner had little knowledge of the Rules, and the broad scope of questioning that they allow.
I had made the decision to conduct the 2004 Exam myself, after consultation with my personal counsel. He and I felt that I knew far more of the details of the case, and thus was better qualified to ask questions, particularly follow-up questions. This was a huge mistake on my part-----probably the biggest mistake I ever made in my dealings with the McCuskers (well, short of trusting Steve in the first place).
I arrived about half an hour early to make sure that the conference room was set up for the Court Reporter, etc. To my surprise, Mr. Turner walked in right behind me. He then began complaining that he'd been up since 2:00 a.m. and had been at the airport, due to some family issue. He complained about how exhausted he was. "Not good", I thought to myself.
A key point in any bankruptcy case revolves around record-keeping, and how well the Bankrupt has done so. Ergo many of my questions revolved around how Steve came to the numbers that he filed with the Court in his Bankruptcy Schedules. I felt that his answers were fuzzy, so I continued that line of questioning.
Steve had told me that at one point when he had separated from Liz, that he had gone to the marital home and that Liz had taken all of his stuff, including his books and files, and thrown them out on the lawn where they had apparently been for a day or several days. So when his answers continued to be all about how carefully he kept his records, I first asked him whether or not he kept his records in his rental condo, or back at his marital home. He stated he kept all his financial records at the marital home.
So I then asked him if those records had spent a few days on the lawn. Mr. Turner, who had no right whatsoever to object, objected to the question, sighing, "Marjorie, Marjorie". I should have told him right then and there to be quiet, and to point out he had no right to object, and that I had the right to ask anything I wished under the 2004 Exam rules.
But as noted earlier in this chapter, I was trying like heck to stay on Mr. Turner's good side, and so was intimidated by his objections......which continued to increase as the Exam went on. I became very flustered, and much of my careful preparation went out the window with Mr. Turner's clear bias.
It's not the Trustee's job to take sides, which Mr. Turner clearly did. However it was my mistake for not taking matters into my own hands and stating the law regarding 2004 Exams to Mr. Turner. For anyone who thinks this account is biased, I can only say that Mr. Turner changed his attitude entirely and was very cooperative once he had to deal with my attorney.
Why should how a creditor is treated by a U.S. Bankruptcy Trustee depend upon whether or not they have a lawyer by their side??? Or whether the Trustee has been up since the middle of the night? [It's interesting to note that it is my understanding that Mr. Turner was indeed taken to court regarding competence in an unrelated action, by attorney George Marcus. I have not been able to confirm this by the publication deadline].
While I did glean some extremely valuable information from the 2004 Exam, I could have done much better. It's easy to blame this on Mr. Turner, but ultimately I must take responsibility for not standing up for my rights.
If there is one lesson to be learned here, it's don't be intimidated. And while staying on the good side of the Trustee may be good advice in a very general way, be most aware that the Trustees don't take the job so that they can make a difference in the world--------like most jobs, they take the job so that they can make money. Furthermore (like any person in any job), they have their good days and their bad days, and it was up to me to recognize that.