Minutes from the March 21, 2012 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
March 21, 2012

Members Present:    Emily B. Metzger, Committee Chair
            Hon. Janice M. Karlin, Judges Representative
            Hon. Dale L. Somers, Judge
            Lee W. Hendricks
            Joyce G. Owen, US Trustee Representative
            William A. Wells
            Linda S. Parks, Chapter 7 Trustee
            David P. Eron
            Paul D. Post
Court Staff Present:    Hugh Zavadil, Clerk’s Representative

Members Absent:    Jan Hamilton
            Dana M. Milby
            Gabrielle A. Beam

The meeting was called to order at 10:05 a.m. Emily Metzger welcomed the Committee.  Emily explained that the minutes from the June 27, 2011 had been approved via electronic mail.  She also noted that there were a couple unresolved issues carried over from the June 27, 2011 meeting.  

First, Dave Eron had introduced a discussion regarding panel trustee Motions to Compel.  Dave met with Jay Befort of the U.S. Trustee’s office and together they concluded that no Local Rule could be crafted that would address the competing interests expressed at the June 27, 2011 Bench-Bar Committee Meeting.  Dave also reported on some informal polling among practitioners in the Bankruptcy Bar regarding Withdrawals by Creditors’ Counsel.  Dave agreed to draft a proposed local rule to be circulated to the committee to see if he could persuade the judges such a rule would be workable.

Agenda Items

  1. Judge Karlin explained a situation that has recently arisen in relation to new  Fed. R. Bankr. P. 3002.1.  The Rule, which became effective December 1, 2011, requires the Chapter 13 Trustee to file a Notice of Final Cure Payment with the Court. It then requires the secured creditor to respond whether the loan is, in fact, current. Sometimes creditors do not respond. Jan Hamilton asked the Court to consider a Rule or Standing Order to address the situation. Instead, the Judges have informally agreed to a procedural change to address the situation. The proposed solution would have the Trustees file a Notice of Final Cure Payment with a Motion to Deem the Mortgage Current if the creditor fails to respond. After a brief discussion the consensus of the group was that the proposed procedural change should satisfactorily address the problem. Judge Karlin will circulate the proposed Notice/Motion once it is final, so the Bench-Bar Committee can review it.
  2. Hugh explained proposed revisions to D. Kan. LBR 1007.2. The revisions simply update the Rule to conform to contemporary technology and correct a typographical error in the existing rule. The Committee unanimously approved the proposed revisions. A copy of the revision, which will be recommended to the Judges for approval, is attached to these Minutes.  (Note: Click here for a redline/strikethru version of D. Kan., L.B.R. 1007.2 )
  3. Lee Hendricks indicated he had been asked to again present to the Committee the possibility of developing a “short form” Chapter 13 Form Plan.  Although the Committee had fully considered that possibility at the last meeting, the Committee again fully considered that option, and unanimously concluded that the existing Form Plan allows the flexibility to designate which paragraphs do not apply and that any “short form” would likely result in no significant advantage to the existing Form Plan. The group also noted that the current Form Plan has been and will continue to be reviewed in light of Rule changes and does a good job of balancing the needs of practitioners within the District.
  4. On the same topic, Judge Karlin noted that she has begun to see at least one lawyer retype the form plan, eliminating some of the formatting that makes the various sections easy to find, etc., and that she strongly discourages the “retyping” of the form plan.

New Business/Non-Agenda Discussions  

    First, Judge Karlin asked the Committee’s opinion on presumptive attorney fees in Chapter 7 and 13 cases. She wanted to know, at least for the Topeka bar, if the fees she set a few years back are still reasonable in light of the fact the fees were set several years ago. She also asked if any increase in their cost of doing business appears to be recouped by savings in time gained from 6 years’ experience practicing under BAPCPA?  The consensus of the group is that the presumptive fees as currently established seem reasonable. This is partly based on the fact that if an attorney needs additional fees he/she can file a motion documenting why the standard “no look” fee is not satisfactory.  

    Judge Karlin also asked the group to comment on the performance (and consistency of operation) of the three divisional office of the Clerk of the Bankruptcy Court.  Members of the Committee were unanimous in expressing positive experiences with all three divisional offices.

    Next, Judge Karlin asked the group if anyone had concerns related to Stern v Marshall?  During the ensuing discussion, Judge Somers noted that these issues are sometimes not raised early enough in the proceeding.

    Judge Karlin asked for input on how to structure large Chapter 13 dockets to minimize time for low volume attorneys. Dave Eron mentioned that the same topic had been discussed at a recent Wichita Bankruptcy Council luncheon. At that time it was suggested that the docket be called in reverse order (i.e., newest cases first, oldest cases last). After a brief discussion Judge Karlin decided it might be best to appoint an ad hoc committee consisting of her, Lee Hendricks and Paul Post (as members of the Bench Bar Committee), Jan Hamilton, and possibly one other attorney, to review procedures in Topeka.

    Finally, Judge Karlin inquired about the recent pattern of the Internal Revenue Service (IRS) amending claims after the trustee or debtor files an objection to an IRS claim, without responding to the objection, itself.  The amended claims are apparently intended to the resolve the matter noted in the objection to claim. She noted this also occurs with KDOR. Emily Metzger observed that the U.S. Attorney’s office does not always receive notice of objections to  IRS claims; the notices often just go to the Philadelphia site. She also suggested that attorneys need to contact U.S. Attorney Staff so they can work directly with IRS. Emily will also discuss the matter with IRS Regional Counsel.
The meeting was adjourned at 11:45 a.m.
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