Minutes from the June 27, 2011 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
June 27, 2011

Members Present:    Emily B. Metzger, Committee Chair
            Hon. Janice M. Karlin, Judges Representative
            Hon. Robert E. Nugent, Chief Judge
            Hon. Robert D. Berger, Judge
            Hon. Dale L. Somers, Judge
            Lee Hendricks
            Jay Befort, US Trustee Representative
            Richard C. Wallace
            Larry G. Michel
            William Wells
            Jan Hamilton
            David Eron (telephone attendance)
Guest(s) Present:    Laurie Williams, Wichita Chapter 13 Standing Trustee
            William Griffin, Kansas City Chapter 13 Standing Trustee
            Paul Post, New Member
            Robert Baer, Chapter 7 Trustee

Court Staff Present:    Hugh Zavadil, Clerk’s Representative

Members Absent:    Linda Parks, Chapter 7 Trustee
            Gabrielle Beam

The meeting was called to order at 10:01 a.m.  Emily Metzger welcomed the Committee.  After brief introductions, Judge Karlin presented Richard Wallace and Larry Michel, outgoing members of the Committee,  Certificates of Appreciation from the judges. Judge Karlin also introduced Paul Post, one of the new members of the Committee.

    Agenda Items

1.    Dave Eron introduced a discussion regarding panel trustee Motions to Compel.  Several different situations were described.  First, in Wichita it sometimes occurs that Motions to Compel production are filed prior to any communication with debtor’s counsel.  Sometimes the Motions to Compel are filed by the trustee after debtor’s counsel has contacted the trustee and let him/her know that the materials were being gathered.  Finally, some panel trustees are filing Motions to Compel Production far in advance of the actual trigger event (e.g. a Motion to produce tax returns months before the return is due under federal and state taxing laws) and compliance becomes problematic for debtors’ counsel. Mr. Eron suggested that the Committee should consider recommending a Local Rule that would require panel trustees to “meet and confer” prior to filing these Motions to Compel.
        Robert Baer appeared on behalf of the Chapter 7 panel trustees.  He argued that the rule revision recommended by Eron was unnecessary.  He also suggested that the proposed rule would be inconsistent with other requirements.  He suggested that such a rule would unnecessarily delay discharges and case closings.  Requests for information are often not met, even after informal attempts (at the 341 and afterwards) to obtain the information.  Most trustees contact debtor’s counsel either orally or in writing to request items before Motions to Compel are filed.  Finally, much of the information sought via these Motions to Compel is required to be produced by the debtor under the Code, and oftentimes very early in the case.  Given time constraints, the Chapter 7 panel trustee has little flexibility in the matter.  If administration is to be completed in a timely fashion, documents must be produced in a timely fashion.

        After considerable discussion, Emily suggested that David Eron, if he desires  further committee consideration of this issue, draft a concrete proposal for the  Committee's consideration.  Emily requested that Jay Befort, and any Trustees he deems appropriate, be consulted in the process.  Emily also said that she would be happy to work with David and Jay on this, if requested. 

2.    Dave Eron introduced a general discussion regarding the rules pertaining to Withdrawals by Creditors’ Counsel.  Dave argued that the current rules impose a difficult burden on those attorneys who represent creditors for a single, relatively simple matter in a case, who then wish to stop receiving notices in that case once that single matter is resolved.  After a brief discussion, it was decided that Judge Karlin would contact the Bankruptcy Judges listserv to see how other jurisdictions handle the issue.  Judge Karlin will report back regarding the inquiry.  Dave agreed to draft a proposed local rule to be circulated to the committee after receiving input from other bankruptcy judges.  (Note: After a full discussion, the judges of this Court have decided not to ask the District Court for an exception to its D. Kan. LBR 83.5.5 for creditors' counsel.  This is, of course, without prejudice to anyone raising this issue in the future for additional consideration.)

3.    Dave Eron introduced the issue of signature requirements on electronically filed documents.  He noted that there are some wide variations in what attorneys collect and preserve to comply with signature requirements in Local Rules.  Judge Nugent noted that Local Rules require attorneys to maintain a paper copy of the (originally signed) petition and schedules.  This requirement exists for evidentiary purposes in case the originals are needed for a fraud or perjury prosecution.  As to retention of proof that an attorney has consented to having his or her /s appended to a pleading, it was noted that a variety of techniques are available.  After discussion, the group concluded that no Local Rule revision was necessary to address this situation.

4.    Laurie Williams, Jan Hamilton and Bill Griffin attended the meeting to discuss the form Chapter 13 Plan with the group, specifically the plan adopted March 1, 2011 by Standing Order 10-2.  Judge Karlin had requested, at the trustee’s invitation, that comments be solicited from the bar regarding the form plan, and whether (after operating under the required plan for approximately 4 months) changes were needed.  Speaking for the Chapter 13 Trustees, Laurie indicated the trustees recommended only minor revisions to the plan (or, “we stand by our plan”), and separately addressed each inquiry or comment made to the existing plan.  Many of the issues identified by the Bar are training issues.  Laurie indicated that in her experience, there have been fewer objections to confirmation because of implementation of the form Plan.  Jan noted that his staff appreciates being able to easily find plan provision provisions.

    It was mentioned that when the monthly payments (in paragraph 1) are entered, along with the number of months, the current plan requires multiplying everything and entering the total.  It was recommended that the "total" column be configured to do the math for you.  All three Chapter 13 Trustees noted that the fields in question were able to accommodate text as well as numbers.  Particularly for below median debtors, there are circumstances where attorneys may wish to preface the number of payments with “approximately” or “estimated” (when the exact amount of claims will impact the commitment period).  For this reason, all three Chapter 13 Trustees recommended not changing the form Plan to automatically calculate totals.

    The committee and the Chapter 13 Trustees reviewed and discussed a number of additional proposed changes to the form Plan.  It was decided that Laurie Williams would oversee having the proposed changes made and circulate a copy of the revised form Plan to the Committee for review by the Bench Bar Committee members, and ultimate recommendation to the judges.

5.    On December 1, 2011, absent some action by Congress, some new and amended Federal Rules of Bankruptcy Procedure become effective.  In a preliminary review of these rules it was noted that there may be some conflicts between the new rules and D. Kan. Bk. S.O. 09-2.  A variety of proposed amendments to D. Kan. Bk. S.O. 09-2 were discussed by the group.  The Chapter 13 Trustees were asked to prepare a redline/strikethru version of D. Kan. Bk. S.O. 09-2 to highlight proposed changes required by these new and amended rules.

6.    The group discussed D. Kan. L.B.R. 9004.1 and the corresponding font size restrictions.  After a brief discussion it was moved by Jan Hamilton and seconded by Larry Michels to increase the font size specified in the rule from 10 to 12 points.  The motion was passed unanimously.  (Note: Click here for a redline/strikethru version of D. Kan., L.B.R. 9004.1 )

7.    Judge Karlin then explained a recent revision to D. Kan. Rule 54.1(a)(2). The Rule requires the party seeking costs to file a memorandum in support of its costs.  After a brief discussion, it was noted that the District Court rule applies to the Bankruptcy Court but that no further clarification was necessary in the Bankruptcy Court local rules.

8.    Judge Karlin next explained a situation she has experienced where debtors are seemingly able to financially afford to reaffirm a debt, but counsel refuses to sign the reaffirmation agreement.  This requires the court treat debtor as de facto pro se, requiring debtors to appear and the court to give the admonitions typically provided by debtors’ counsel.  Sometimes, the debtors must travel considerable distances to make the (seemingly unnecessary) appearance.  Judge Karlin asked attorney members of the committee about blanket refusals to sign reaffirmation agreements.  The group discussed the matter but came to no resolution of the issue.

9.    Jay Befort presented a proposed Standing Order regarding payment of bank fees by Chapter 7 trustees.  After a brief explanation of the proposed Standing Order (required because banks are now refusing to give interest-free accounts to panel trustees), the group recommended adoption of the Standing Order. (Note: On June 30, 2011 the judges signed D. Kan. Bk. S.O. 11-1)

10.    Hugh noted that the Tenth Circuit has approved the rule revisions from last term.

The meeting was adjourned at 1:52 p.m.
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