How to file a Motion to form Creditor's committee in Chapter 11?

Has the first meeting of creditors been held? if not appear and ask the UST. If already held call the UST. Is there really a ch 11 trustee, as opposed to a DIP? If there is a ch 11 trustee, unless this is an uber case, creditor committees are somewhat rare. You can also contact a firm that does CC work and they will guide yoiu through it, if they are to be the CCs counsel.

A creditors committee is a good idea if you need independent counsel to review the case and determine whether or not there were fraudulent transfers or if the business or individual debtor can be reorganized. Under these circumstances, I think you are better off seeking out a bankruptcy attorney who handles creditor committee work. Be forewarned, however, that the CC does not always get reimbursed for counsel fees, and so you may be paying a lot out of pocket to learn that the committee can do no more than obtain certain relief, or oppose a Ch. 11 plan which, in the end, may be the only viable solution. The idea is to maximize returns on the debts owed so expense is a factor. Finally, in most cases, a CC is usually mandatory anyway. Whether the committee moves forward, other than nominally, is another matter.

Section 1102(a)(1) of the Bankruptcy Code provides that the United States trustee "shall" appoint an official creditors committee, unless the court has entered an order under (a)(3) in a small business case barring the formation of a committee. Section 1102 and the case law generally gives creditors the right to file a motion to have the court compel the U.S. Trustee to form a committee. The creditors who are interested in filing a motion should engage a lawyer to evaluate the business case for filing and prosecuting the motion, and to go forward with the motion if it makes sense. You should find and interview several lawyers with offices where the case is pending and who have a good track record representing creditors committees.

There should be no need to file such a motion. Section 1102(a)(1) of the Bankruptcy Code requires the U.S. Trustee's Office ("UST") to appoint such a committee "as soon as practicable." after the filing of the case, unless the case is a "small business" case as defined in the Code and the Court has ordered that no such committee be appointed for cause. However, I've found that in my area (Chicago) in cases not involving extremely large debtors, the UST does not always automatically appoint such a committee unless a number of creditors show an interest to be involved in the case. That is usually accomplished by showing up at the initial meeting of creditors. The above assumes that you are referring to the U.S. Trustee's Office and not an appointed Chapter 11 trustee. Usually, there is no official trustee appointed in a chapter 11 case, which is why a creditors' committee is has a purpose. However, if the Court determines that the debtor cannot properly function as a "debtor-in-possession" (which has specific meaning not really requiring explanation for your purposes), a chapter 11 trustee may be appointed. In that case, creditors' committee does not make much sense. If you are in fact dealing with the U.S. Trustee's Office, and assuming it is still early in the case, the UST might be reluctant if there are not numerous creditors. If there are only a handful, the cost of the committee's attorneys is paid by the estate as an administrative claim thereby decreasing the amount available for distribution. However, if there are numerous creditors, fairly significant assets and the UST remains reluctant to appoint a committee, the answer is yes, a motion to require the appointment can and should be made. However, you will need an attorney properly qualified in your jurisdiction to do so.