There is no rest for those weary of heated and divisive debate about changing the bankruptcy laws. Congress is currently considering legislation to fund a hike in the no-asset fee for Chapter 7 panel trustees. There seems to be general support that the current no asset fee of $60  is too low. Since 95 percent or more of Chapter 7 cases result in no distributions to generate additional revenue for trustees, most trustees receive only the $60 per case. The problem is how Congress is proposing to generate the extra $40 per case–by raising the Chapter 7 filing fee. Groups like the National Associaton of Consumer Bankruptcy Attorneys are concerned about the affordability of bankruptcy relief. Since October 2005, the filing fee has already increased to $299 through a series of rate hikes in BAPCPA and in legislation that followed. Combined with the costs of credit counseling and financial education, the total costs of a Chapter 7 consumer bankruptcy filing now are $399. The National Association of Bankruptcy Trustees is pushing the fee hike on the basis that additional work is required of trustees under BAPCPA and a raise in fees is needed to ensure the recruitment and retention of quality trustees.

The tension over the fee hike illustrates the "law is not free" adage. Somebody has to pay for the law’s new requirements. Should it be consumers who are the "users" of the bankruptcy system? Don’t creditors (or at least certain types of creditors) benefit from bankruptcy as well? After all, isn’t that purpose of the meeting of creditors and the trustee’s work–to ensure that all available assets are identified and distributed to creditors.

This problem gets tougher to resolve when the fee increase issue is combined with BAPCPA’s addition of an in forma pauperis filing option for debtors. When a court waives the filing fee for a debtor, the Adminstrative Office of the U.S. Courts doesn’t collect any money. And it is this money that is supposed to fund the trustee’s fee. Who takes it on the chin in these situations? Why should the trustee work for free? Should taxpayers collectively have to bear the cost of a new bankruptcy system? If creditors wanted the means test and more trustee scrutiny, should they have to pay for it–for example, by making the distribution of assets to a trustee larger in asset cases to compensate for the work in all the no-asset cases?  What should a court do that is concerned about ensuring that trustees do quality work but that also wants to ensure access to the bankruptcy system for the most needy debtors when evaluating whether to let a debtor proceed without paying the filing fee?