KSB

Minutes from the September 17, 2008 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
September 17, 2008



Members Present: Emily B. Metzger, Committee Chair
Hon. Janice M. Karlin, Judges’ Representative
Edward Nazar
Jay Befort
Chelsea Herring
Tom Barnes
Larry Michel

Guest(s) Present: Hon. Robert E. Nugent, Chief Judge

Court Staff Present: Hugh Zavadil, Clerk’s Representative

Members Absent: William Griffin, Chapter 13 Representative
Joyce Owen, US Trustee Representative
Lisa Epp
Richard Wallace

The meeting was called to order at 10:04 a.m. Emily Metzger welcomed the committee. New members of the committee were introduced.
Minutes of the Bench Bar Committee
Topeka Courtroom 210
September 17, 2008


Members Present: Emily B. Metzger, Committee Chair
Hon. Janice M. Karlin, Judges’ Representative
Edward Nazar
Jay Befort
Chelsea Herring
Tom Barnes
Larry Michel

Guest(s) Present: Hon. Robert E. Nugent, Chief Judge

Court Staff Present: Hugh Zavadil, Clerk’s Representative

Members Absent: William Griffin, Chapter 13 Representative
Joyce Owen, US Trustee Representative
Lisa Epp
Richard Wallace

The meeting was called to order at 10:04 a.m. Emily Metzger welcomed the committee. New members of the committee were introduced.

Emily explained that the minutes from the previous meeting of the committee had been circulated and approved via email, so that copies of the minutes could be posted on the Court’s web site.

New Federal Rules of Bankruptcy Procedure, which take effect on December 1, 2008 implement the substantive and procedural changes currently enforced in the Interim Rules. As such, the group discussed abrogation of D. Kan. Bk. S.O. 05-5 which adopted the Interim Federal Rules for the District of Kansas. Hugh suggested that since one of the Interim Rules— Interim Rule 5012— was not being replaced, we might maintain the Standing Order. Judge Nugent suggested that the Court adopt a new Standing Order, which adopts the language of Interim Rule 5012, and abrogates the rest of the Interim Rules because discussions relative to Interim Rule 5012 may not be resolved for a considerable period of time. The Committee concurred with Judge Nugent’s recommendation and Hugh will draft a Standing Order for the Court that adopts the language of Interim Rule 5012 and simultaneously abrogates the rest of the Interim Rules.

Judge Karlin initiated a conversation about D. Kan. Bk. S.O. 08-1 (Standing Order concerning Conduit Mortgage Payment in Chapter 13 cases). First, since this Standing Order does not become effective until October 1, 2008, Judge Karlin asked the group if there were any known problems with Order, as drafted, which might be addressed prior to implementation. Judge Karlin also shared the Clerk’s recommendation that the Standing Order remain a Standing Order to permit easier modification if problems are discovered during the implementation of the Order. Finally, Judge Karlin noted that the version of the Standing Order signed by the judges failed to include a sample, referenced in Appendix H to the Order. This problem is being corrected with a corrected version that is currently being circulated for signatures. The group agreed that the Standing Order, as corrected, should be maintained as a Standing Order until the updated Local Rules for March 2010 are published.

Judge Karlin explained the history of D. Kan. Bk. S.O. 08-2 (Standing Order concerning Chapter 13 Trustee's Modification of Plan After Confirmation), which is essentially to allow a
Chapter 13 Trustee to compel a Debtor to return an asset to the estate, usually a pre-petition tax refund—by filing a Trustee amendment to the plan requiring repayment before the Debtor will get a discharge. This is in lieu of more time-consuming Orders to Show Cause procedures, when a Debtor does not obey a Court order to turnover. Judge Karlin recommended that the text of this Standing Order be adopted by the Committee as D. Kan. LBR 3015(g).1. Jay Befort asked if the adoption of this as a Rule would have any impact on trustee recovery of tax refunds from the State of Kansas. After a brief discussion, the group concluded that Jay’s concerns were probably unrelated to the adoption of this proposed Local Rule. Jay moved that the Committee recommend adoption of D. Kan. LBR 3015(g).1, and Tom Barnes seconded. The Committee unanimously adopted the recommendation.

Judge Karlin introduced a discussion of D. Kan. Bk. S.O. 07-4 (Statements Creditors Shall Provide to Consumer Debtors who are Repaying Debt Secured by a Mortgage on Real Property or a Lien on Personal Property the Debtor occupies as Debtor’s Personal Residence). Specifically, the group discussed whether amendments were necessary to this Standing Order in light of the adoption of D. Kan. Bk. S.O. 08-1. Several areas of potential conflict or overlap were noted. After a lengthy discussion, Chelsea Herring and Tom Barnes volunteered to draft proposed amendments. Hugh explained that the public comment period for Local Rule changes will run from November 1, 2008 through November 30, 2008. Based on the publication schedule, Tom and Chelsea agreed to review the draft with Judge Nugent via conference call on or before October 7. After reviewing the proposal with Judge Nugent, the proposal will be circulated to the full Committee for review by email.

Hugh briefed the Committee on the upcoming implementation of the Judicial Conference policy on electronic availability and redaction of transcripts. Key components of the policy are as follows:

  • A transcript provided to a court by a court reporter or transcriber will be available at the office of the clerk of court for inspection only, for a period of 90 days after it is delivered to the clerk.
  • During the 90-day period, a copy of the transcript may be obtained from the court reporter or transcriber at the rate established by the Judicial Conference, the transcript will be available within the court for internal use, and an attorney who obtains the transcript from the court reporter or transcriber may obtain remote electronic access to the transcript through the court’s CM/ECF system for purposes of creating hyperlinks to the transcript in court filings and for other purposes.
  • Attorneys or parties in the case must file a Notice of Intent to Request Redaction within 7 calendar days from filing the restricted transcript.
  • Attorney or parties must file a Request for Redaction within 21 calendar days from the filing of the restricted transcript.
  • The court reporter or transcriptionist must file a redacted version of the transcript (if redactions have been requested) within 31 calendar days of the filing of the restricted transcript.
  • At the end of the 90-day restriction period, if a redacted version of the transcript is NOT filed and if there are no other redaction documents or motions linked to the transcript, the unredacted version will be made available via remote electronic access and at the public terminal for viewing and printing. Otherwise, the redacted version will be made available via remote electronic access and at the public terminal for viewing and printing.

The consensus of the Committee was that the Court’s website should contain a Notice of these policies. If possible, CM/ECF should be configured to provide counsel of record with the relevant deadlines. Judge Nugent volunteered to discuss the matter with the District Court judges to see if the District Court planned to implement a Rule or Standing Order pertaining to this issue.

Judge Karlin introduced a discussion about motions to extend automatic stay. Specifically, Judge Karlin is concerned that parties cannot provide proper notice of hearing in these matters without shortening the notice period. Judge Karlin noted that these motions are routinely accompanied with motions to shorten notice and the motions to shorten notice are routinely granted because the Code requires these hearing to be held within 30 days. Judge Karlin wondered if a rule to permanently shorten the notice in these cases would be worthwhile. Judge Nugent observed that this situation rarely occurs in the Wichita division. After a discussion, Judge Nugent suggested that Judge Karlin adopt some provisions to her local guidelines to attorneys as a “pilot program” to test the effectiveness of the proposal. The group supported Judge Nugent’s proposal.

In a follow-up conversation, Judge Karlin noted that the Bench-Bar Committee is more than simply a Local Rules Committee. The judges sometimes ask to have topics placed on the agenda to get a sense from the bar as to how procedures and processes are working. She encouraged members of the group to bring such issues to the meetings.

Emily introduced a discussion of D. Kan. LBR 4070.1 (Insurance on Motor Vehicles) in light of the recent 8th Circuit Bankruptcy Appellate Panel ruling In re: Suggs, 377 B.R. 198 (8th Cir. BAP 2007) (holding that WD Mo’s similar local rule, allowing repossession of vehicles that purportedly are uninsured before establishing irreparable injury with the Court, was invalid as contrary to § 362(a), as implemented by Fed. R. Bankr. P. 4001(a)(2)). After a brief discussion, it was concluded that the group should explore modifications to D. Kan. LBR 4070.1. Jay, Emily, and Ed volunteered to draft proposed revisions to the local rule based on the discussions of the full committee. Again, because of the publication deadlines, the sub-committee hopes to have its draft to the rest of the committee by early October.

Judge Nugent discussed some recent conversations he has had with colleagues in the District Court about the publication of the local rule book. It has recently been suggested that publication of the hard copy book be suspended in favor of on-line publication. The committee discussed the issue at length. The consensus of the group was that the publication of the hard copy of the local rules book should continue. Judge Nugent was urged to recommend “...as forcefully as possible...” that consensus to the District Court Judges.

Hugh reviewed the mechanics of the Chapter 13 closing process proposed by the Chapter 13 Trustees. Highlights of the proposed process include:

  • About six months before anticipated plan completion the Chapter 13 Trustees will file a Notice of Plan Approaching Completion.
  • If no Financial Management Certificate has been filed, CM/ECF will send a notice to Debtor and Debtor(s)’ counsel reminding them that the Financial Management Certificate must be filed prior to making the last payment in a Chapter 13 plan.
  • Upon completion of all plan payments the Trustees will file a Notice of Chapter 13 Plan Completion.
  • If no Financial Management Certificate has been filed, the Clerk’s office will issue a Notice of No Discharge and, upon completion of administration, close the case without entry of a discharge.
  • If the Financial Management Certificate has been file, the Chapter 13 Trustees would like debtor(s)/debtor(s)’ counsel to file a Certificate of Compliance and Motion for Entry of Discharge. This document would require the debtor to assert, under oath, that all of the necessary conditions specified in section 1328 have been met and that the case is ready for discharge.
  • If an objection is filed to the Certificate of Compliance, or if the debtor meets either of the conditions specified in 1328(h), a hearing would be held to resolve the issue(s).

About six months before anticipated plan completion the Chapter 13 Trustees will file a Notice of Plan Approaching Completion.
• If no Financial Management Certificate has been filed, CM/ECF will send a notice to Debtor and Debtor(s)’ counsel reminding them that the Financial Management Certificate must be filed prior to making the last payment in a Chapter 13 plan.
• Upon completion of all plan payments the Trustees will file a Notice of Chapter 13 Plan Completion.
• If no Financial Management Certificate has been filed, the Clerk’s office will issue a Notice of No Discharge and, upon completion of administration, close the case without entry of a discharge.
• If the Financial Management Certificate has been file, the Chapter 13 Trustees would like debtor(s)/debtor(s)’ counsel to file a Certificate of Compliance and Motion for Entry of Discharge. This document would require the debtor to assert, under oath, that all of the necessary conditions specified in section 1328 have been met and that the case is ready for discharge.
• If an objection is filed to the Certificate of Compliance, or if the debtor meets either of the conditions specified in 1328(h), a hearing would be held to resolve the issue(s).

Emily introduced the topic of including an attorney email address in the signature line of pleadings. She noted that, while the Bankruptcy Court local rule (D. Kan. LRB 9011.4) does not explicitly require an email address, the District Court rule (D. Kan. Rule 5.4.8), which is applicable to the Bankruptcy Court, does include such a provision. The group discussed the potential for problems if/when debtor(s) would obtain a creditor attorney email address off a pleading and attempt to contact the creditor attorney directly via email. Tom moved that the Committee recommend modification of D. Kan. LBR 9011.4 to include a requirement for attorney email address, to make it consistent with the D. Kan. Rule, and Larry Michel seconded. The Committee unanimously adopted the recommendation.

Jay commenced a discussion of the District of Arizona’s local rule 9022-1. This rule requires attorneys to file a Notice of Lodging whenever a proposed order is submitted to the Court. The Notice includes a copy of the proposed order and is served electronically by the Court’s CM/ECF system. Jay indicated that this methodology might alleviate delays that occasionally occur when circulating orders to obtain approvals and signatures. The group discussed the Arizona rule and D. Kan. LBR 9074.1. After considerable discussion, the consensus of the group was that D. Kan. LBR 9074.1 worked effectively, when used, and that the Arizona rule did not offer a superior tool for order circulation. The matter was tabled.

Members of the committee commented favorably about the Court’s new website, and briefly discussed whether there were any observed problems with compliance with the Service Members Civil Relief Act, in light of the number of debtors in the military.

Judge Karlin introduced the topic of form chapter 13 plans. A consensus of the group was that if we use form chapter 13 plans, the plans must clearly identify provisions that deviate from the language of the default form plan. It was also noted that not all provisions of a form plan are applicable to all debtors (e.g. provisions concerning the domestic support obligations for a debtor who is not and never has been married).

Finally, Ed Nazar presented some information about proposed revision of D. Kan. LBR 6007.1 regarding abandonment. Ed volunteered to draft the changes and circulate to the group for review and approval.

The meeting was adjourned at 1:57 p.m.

NOTE: Subsequent to the meeting, the Committee voted, via electronic mail, to 1) further amend D. Kan. LBR 9011.4 to include facsimile number in the list of required elements for signature lines on pleadings; and 2) to modify Standing Order 07-4 (which we are retaining as a Standing Order for at least a year) to make it consistent with Standing Order 08-3 (Conduit Mortgage Payments).

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