- Category: Bench Bar Committee
- Published: 24 December 2013
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Minutes of the Bench Bar Committee
Topeka Courtroom 210
November 12, 2013
Minutes of the Bench Bar Committee
Topeka Courtroom 210
November 12, 2013
Members Present: Emily B. Metzger, Chair
Hon. Janice M. Karlin, Judges Representative
Gary E. Hinck
Wendee Elliott-Clement (new member July 1, 2013)
David G. Arst
Paul D. Post
Laurie B. Williams, Chapter 13 Trustee
Dana M. Milby
Eric L. Johnson
Robert L. Baer, Chapter 7 Trustee
Court Staff Present:
David Zimmerman, Clerk
Hugh Zavadil, Chief Deputy Clerk
Joyce Owen, US Trustee Representative
Emily Metzger called the meeting to order at 10:00 a.m. Judge Karlin introduced the new
Clerk of the Bankruptcy Court, David Zimmerman. She noted that the Minutes from the
previous meeting had been approved via e-mail. She also provided a brief overview of the
Changes to D. Kan. Rules
Judge Karlin provided a brief overview of the pending rule changes to the U.S. District
Courts Local Rules. She also noted that the other judges had been unanimous in wanting
feedback from the Bench-Bar Committee regarding the impact of these rule changes. The
following is a summary of the discussion.
D. Kan. Rule 7.1–new (f) Motions in Civil Cases
Prescribes how to bring “pertinent and significant authorities” to the court’s attention
post- briefing or oral argument. The members discussed that it would seem a party would
always want to, and always should, bring “pertinent and significant authorities” to the
attention of the court, instead of “may,” but no one proposed that we should offer
anything different in the bankruptcy section of the rules.
D. Kan. Rule 16.2 Pretrial Conferences
Provides for a more streamlined, or at least more tailored, pre-trial process. The U.S.
District Court also revised its Pre-Trial Order form. It is still much more detailed/lengthy
than the Bankruptcy Court’s approved Pretrial Order form.
D. Kan. Rule 26.1 Completion Time for Discovery
This Rule, which required parties to “complete discovery within 4 months after the case
becomes at issue” or “within 4 months after the court issues its Rule 16(b) scheduling
order” has been abolished by the District Court. There was considerable discussion about
whether the lawyers on the Bench Bar Committee believed that 4 months was, in fact, an
appropriate guideline for most adversaries or contested matters. It was generally agreed
that 4 months is adequate time for most cases, and the members acknowledged that the
courts were good about extending that time if the parties explained why more time was
needed in the Report of Parties’ Planning Meeting. Ultimately, the Committee agreed we
should keep, unrevised, our own D. Kan. LBR 7026.1(b), which preserves this 4-month
guideline for practitioners in the Bankruptcy Court.
D. Kan. Rule 56.1–new (f) Summary Judgment Motions
This new subsection requires any represented party seeking summary judgment to
separately serve and file a form notice on an unrepresented party advising them, of the
duties they have and the consequences they may suffer, for ignoring a summary judgment
motion. Judge Karlin indicated she would enforce this rule in her cases.
D. Kan. Rule 83.1.1 Amendment of Rules
This changes the location of the notice for proposed adoption of amendments to the rules
from the Journal of the Kansas Bar Association to the court’s own web site. After
discussion, it was agreed that we should not make any change in this for bankruptcy rule
changes, as this is a better place to publish this for several reasons.
D. Kan. Rule 83.5.3(e) and (f)
The change in these two subsections is to allow for payment from the Bar Registry funds
for out of pocket expenses that have not been recovered (as opposed to a much larger
“recoverable” standard) by appointed counsel. A new subsection (f)(6) requires
reimbursement to the Fund if money is later recovered. Since we do not have appointed
counsel in bankruptcy cases, this should not have any impact on our practice.
New D. Kan. Rule 83.5.8 Limited Scope Representation in Civil Cases
This allows a lawyer to limit the scope of representation “if the limitation is reasonable
under the circumstances and the client gives informed consent in writing,” requiring
compliance with Kansas S.Ct. Rule 115A (noting that 115A(c), which appears to allow
ghost-writing, does not apply in our District). Subsection (b) says “The Bankruptcy Court
may have additional Local Rules that govern its limited scope of practice.”
The group discussed the American Bankruptcy Institute’s Best Practices for Limited
Services Representation [which suggests this should only apply in Chapter 7 cases], as
well as numerous facets of the proposed U.S. District Court Rule. After considerable
discussion, Emily Metzger, David Arst, Wendee Elliott-Clement and Dana Milby were
appointed to a sub-committee to draft a proposed rule to address Bankruptcy Court
concerns pertaining to limited scope representation. It was suggested that the proposed
rule could be initally adopted by a Standing Order. The group spent a great deal of time
discussing what was considered to be “core duties” of all Chapter 7 counsel, and Judge
Karlin emphasized that the judges have been very reluctant to allow attorneys to
“unbundle” core services (such as reaffirmation agreements, etc.).
D. Kan. LBR 4002.3-related Form Revision
Emily asked the CM/ECF system-generated Order To Debtor-In-Possession Respecting
Report and Payment of Federal Taxes be updated to reflect the current address for filing Federal
Income Tax Returns. That address is:
Internal Revenue Service
2850 NE Independence Ave
Stop 5334 LSM
Lees Summit MO 64064-2327
Hugh agreed to amend the system-generated order [and has done so since the date of the
National Form Plan Update
Laurie Williams briefly discussed the National Form Plan and related Federal Rule
changes. Those Rule changes are necessary to implement the Form Plan and are currently
available for public comment through February of 2014. The Form Plan and the proposed Rules
can be found at the link below. Members of the Bar are encouraged to review the proposed
changes and submit comments on or before February 15, 2014. Judge Karlin had recently met
with Judge Wedoff, chair of the committee proposing the plan, and he indicated that although
they will review every comment, those areas receiving more numerous comments will likely get
even closer scrutiny. Here is the link to where you make comments, and you can view the
comments already made before submission.
Notice of Fees Under Fed. R. Bankr. P. 3002.1
Wendee Elliott-Clement noted that creditors are sometimes very nervous about Fed. R.
Bankr. P. 3002.1 (which requires notice of payment changes, fees, expenses, charges, etc.) and
often err on the side of caution and file Notices of Fees in cases where the home mortgage is
being paid outside the Chapter 13 Plan. Since the plan does not provide for the Chapter 13
Trustee to pay the home mortgage, some of the Trustees object to the Notice just so everyone
(especially the Debtor and counsel) will know that the Trustee is not going to pay any claim.
Wendee Elliott-Clement will draft a proposed local rule to address this situation for the group’s
consideration. She will also work with Laurie to ensure that the proposed local rule addresses
the concerns of the Chapter 13 Trustees.
Proposed Amendment to the Appendix to D. Kan. LBR 5005.1
Hugh proposed, on behalf of the Clerk’s Office, a minor amendment to the Appendix to
D. Kan. LBR 5505.1. The purpose is to permit implementation of the revisions to Fed. R. Bankr.
P. 1007 which take effect December 1, 2013. Emily moved and Gary seconded a motion to
recommend the change. The motion was passed unanimously.
New Fee for Motions to Sell Free and Clear
Judge Karlin briefly explained that a new Miscellaneous Fee will become effective
December 1, 2013. This fee is for motions to sell property free and clear of liens under 11
U.S.C. § 363(f). There is no provision to defer or waive this fee (as there is for adversary
proceedings for trustees, for example).
Emily explained that there was a recent thread on the bk-listserv regarding preferred
address substitution for creditors. Hugh explained that under 11 U.S.C. 342(f) creditors can file
a preferred address. The preferred address can apply nation-wide, to a particular district, or even
to a particular case. In the District of Kansas these preferred addresses are filed in the National
Creditor Registration Service (N.C.R.S.) pursuant to D. Kan. LBR 2002.1(d). Hugh also pointed
out that data from the court’s CM/ECF system is analyzed, substituted where appropriate, and
merged in real-time with data from N.C.R.S. to direct notices queued to the BNC to a creditor’s
“preferred” address. He also noted that the PACER Creditor List report (Reports>Creditor List
from the CM/ECF main menu) also does an on-line real time merge of the two systems’ data to
produce a printable matrix with substituted “preferred” addresses. So contrary to the suggestion
in the listserve, the Kansas bankruptcy court does not have a list of “secret” addresses, does not
maintain that list, and that list (where it does exist) could literally change every day since
creditors can change the address they wish to use whenever they wish.
The meeting was adjourned at 12:57 p.m.