The federal bankruptcy courts take the process seriously—while bankruptcy is considered a right conferred by federal statute, the trustee has a number of tools to ferret out fraud and protect the system. Here’s what customarily happens when the trustee suspects fraud or misrepresentation.
Step One: A Rule 2004 Examination
Under Rule 2004 of the bankruptcy code, the trustee can require that a debtor, creditor or other person submit to questioning or produce documents related to any alleged fraud. The trustee has broad powers during the course of such an investigation, with the ability to look into:
- An issue related to the administration of a bankruptcy estate
- Any matter associated with or affecting a debtor’s right to discharge any debt
- Any conduct, act, asset, liability, property or financial dealings of a debtor
Step Two: An Adversary Proceeding
Based on the findings of the Rule 2004 examination, or based on any evidence suggesting fraud, the trustee can file an adversary proceeding in the bankruptcy court. An adversary proceeding is comparable to a lawsuit filed in civil court.
Step Three: A Preliminary or Temporary Injunction
If there’s evidence of fraud or that assets are being improperly transferred or wasted, the trustee can ask the court to issue an injunction, prohibiting a party from engaging in specified acts.
Step Four: A Criminal Prosecution
Fraud is both a criminal and a civil infraction. As a consequence, when there is evidence of fraud, the trustee can ask the U.S. Attorney’s office to file and prosecute criminal charges.
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