Minutes May 18, 2010 Bench-Bar Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
May 18, 2010
 Members Present:    Emily B. Metzger, Committee Chair
            Hon. Janice M. Karlin, Judges Representative
            Tom Barnes
            Joyce Owen, US Trustee Representative
            Chelsea Herring
            Larry Michel
Guest(s) Present:    Chris Micale, Attorney for the Wichita Chapter 13 Standing Trustee

Court Staff Present:    Hugh Zavadil, Clerk’s Representative

Members Absent:    Edward Nazar            
            Jay Befort
            Lisa Epp
            Richard Wallace
            William Griffin, Chapter 13 Representative
The meeting was called to order at 10:09 a.m.  Emily Metzger  welcomed the committee. She explained that the draft Chapter 13 Plan Form had been prepared by the three Chapter 13 Standing Trustees.  A sub-committee of the Bench-Bar Committee, consisting of Emily Metzger, Tom Barnes, Chelsea Herring, and Laurie Williams (representing the trustees), then reviewed the proposed plan and made further suggestions for revision.
Form Plan
Chris Micale, staff attorney in Laurie Williams’ office, provided the review of each discrete provision of the draft Plan.  He noted that generally, the Form Plan is somewhat longer than some attorney-drafted Plans, but that Wichita’s experience is that attorneys quickly become familiar with the Plan and that the form Plan is specifically designed to “head off” common problems.  By “heading off” these problems, it is hoped that the need to file amended Plans will be minimized.

    The proposed Form Plan consists of the following sections:
    •    Plan Terms,
    •    Effect of Confirmation,
    •    Applicable Commitment Period,
    •    Administrative Fees,
    •    Filing Fees,
    •    Tax Returns,
    •    Domestic Support Obligations (DSO),
    •    Priority Claims,
    •    Property to be Surrendered,
    •    Real Estate Mortgages under D. Kan. S.O. 09-2,
    •    Real Estate Mortgages outside  D. Kan. S.O. 09-2,
    •    Secured Creditors Other Than Debts Secured by Real Estate,
    •    Lien Avoidances,
    •    Student Loan Obligations,
    •    Executory Contracts and Unexpired Leases,
    •    “Best Interests of Creditor Test,”
    •    Property of the Estate, and,
    •    Other General Plan Provisions

The BB Committee reviewed each provision in the proposed Form Plan.  A number of suggestions were made and incorporated into the draft.  Click here to see a pdf document containing the text of the draft Form Plan containing amendments proposed by the Bench-Bar Committee.

Judge Karlin asked that the proposed Plan, as revised, be circulated to the Committee for a final review.  After review and approval by the Bench-Bar Committee, the proposed Plan will be routed to the judges for discussion. 

Chris noted that there are some technical issues with how the Plan is to be released.  Currently, the proposed Plan is in Microsoft Word format, and he expressed concern that not everyone has access to Microsoft Word.  A pdf form might also be created, but pdf- fillable forms also have some technical issues.  Judge Karlin volunteered to have the Court’s technical staff assist in preparation of the document in final form.

UST Proposal regarding conversions resulting from 707(b) objections
Joyce Owen presented a proposal from the U.S. Trustee’s office.  The UST's office files motions to dismiss under 11 U.S.C. 707(b), which often result in the debtor's voluntary agreement to convert the case to a Chapter 13 or sometimes a Chapter 11.   Most or all of the judges have required that rather than an agreed order linked to the UST's motion, that the debtor be required to file and notice a separate motion to convert.  The purpose for this procedure is in deference to the Marrama1 decision, because parties in interest should have the opportunity to oppose conversion for bad faith or other reasons.  

Joyce noted that if an agreement to convert is reached before one docket, it often takes more than a month for debtor's counsel to file the required motion for conversion and for the objection deadline to run.  During that time, her office may have to make appearances in KC or Topeka on the underlying § 707(b) motion, or arrange for additional continuances until the conversion is completed.  This process takes longer than it would for the U.S. Trustee to submit an agreed order of conversion based upon the original 707(b) motion.  Judge Karlin suggested that if a debtor or debtor’s counsel agrees to a conversion, that the U.S. Trustee prepare an order that agrees to the dismissal unless the motion to convert is filed and properly noticed within a specified time period.  This resolution would keep the case moving and provide the necessary notice to creditors required by the Court, and it is doubtful the judges would require an appearance by the UST during that notice period.
 Certificates of Appreciation to outgoing Committee members and Introduction of new members
 Judge Karlin presented Certificates of Appreciation to Chelsea Herring and Tom Barnes for their service on the Bench-Bar Committee, and will mail the certificates to Edward Nazar, Lisa Epps, William Griffin and Richard Wallace.  Judge Karlin also announced the new appointments to the Committee.  The Chapter 13 Trustee representative will be Jan Hamilton.  The Chapter 7 Trustee representative will be Linda Parks.  Attorneys selected to fill three-year terms were David Eron and Lee Hendricks, while Gabrielle Beam and William Wells were each selected to fill two-year terms.  The new appointments are effective July 1, 2010.

The meeting concluded at 12:50 p.m.
Marrama v. Citizens Bank, 549 U.S. 365 (2007).
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