Minutes from the June 5, 2009 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
June 5, 2009

Members Present:    Emily B. Metzger, Committee Chair
Hon. Janice M. Karlin, Judges Representative
Edward Nazar
Joyce Owen, US Trustee Representative
Lisa Epp
Richard Wallace
Chelsea Herring
Larry Michel
William Griffin, Chapter 13 Representative
Guest(s) Present:    Hon.  Dale L. Somers, Judge

Court Staff Present:    Hugh Zavadil, Clerk’s Representative

Members Absent:    Tom Barnes
Jay Befort

The meeting was called to order at 10:10 a.m.  Emily Metzger  welcomed the committee.  Emily noted that the minutes from the previous meeting had been circulated and approved via electronic mail.

Emily asked Hugh to explain the deadline-related rule changes that were being proposed.  Hugh explained that on December 1, 2009, barring any actions by Congress, new Federal Rules of Bankruptcy Procedure will take effect.  One of the primary features of these new rules will be to significantly alter the way deadline are computed in the Federal Courts.  Essentially, deadlines in these rules are amended in the following manner:

        •    5-day periods become 7-day periods
        •    10-day periods become 14-day periods
        •    15-day periods become 14-day periods
        •    20-day periods become 21 -day periods
        •    25-day periods become 28-day periods

Hugh walked the group through changes in D. Kan. LBRs 2002.1,2014.1, 3001.1, 3015(b).1, 4001(a).1, 4002.2, 5075.1, 7026.1, 7041.1, 8006.1, 9004.1, 9011.3, 9027.1, and D. Kan. Bk. S.O. 08-4 that will be needed if our rules are to comply with the new Federal Rules.  Judge Karlin noted that any changes we adopt to conform our Rules to the Federal Rules will likely need to be adopted via Standing Order for the time period between December 1, 2009 and March 17, 2010 (the typical effective date for newly revised Local Rules).  Richard Wallace moved and Bill Griffin seconded that the proposed amendments be approved and recommended to the Judges.  The Committee unanimously adopted the recommendation.

Next, Hugh explained that the Federal Rule project did not deal with any deadlines of 30 days or more.  He also noted that we have a number of 30 day deadlines specified in Local Rules.  After some discussion, the group concluded that most of the 30 day deadlines specified in our Local Rules should be set at 28 days.  The group also discussed Local Rules which “build-in” the additional three days for service by mail, as provided in Federal Rules.  The consensus was  Local Rules with this provision should continue to include this additional time.  Finally, the group recommended that the Judges consider lengthening the current 10 day deadline for submitting orders to 14 days to make these Local Rules consistent with other approved changes.

Based on the above discussion, Hugh presented proposed amendments to D. Kan. LBRs 3015(b).1, 3022.1, 7012.1, 7054.1, 7056.1, 9013.2, 9074.1, D. Kan. Bk. S.O. 08-5, and D. Kan. Bk. S.O. 09-2.  The group proposed further amendment to D. Kan. LBR 3015(b).1 (g)(5) extending the deadline to 35 days (from the proposed 28 days).  The group also recommended D. Kan. Bk. S.O. 08-5 (dealing with cases commenced by a foreign representative) be further modified to include a sunset provision of December 1, 2010.  Ed Nazar moved and Lisa Epps seconded that the proposed changes be approved, as amended by the group.  The Committee unanimously adopted the recommendation.

During the discussion of order deadlines, Lisa Epps asked if the committee had given any consideration to the use of text orders in the District.  Judge Karlin explained that we engaged in a rather lengthy process several years ago to develop text orders but those orders, for a variety of reason, had fallen into disuse except for continuances on large dockets.  After some discussion,  the group recommended that the list of text orders which are available be included in these minutes.  

The following text orders are available upon request by any counsel or the Court:

            •    Borrow by Debtor-Denied
            •    Borrow by Debtor-Granted
            •    Ch 13 Trustee Dismissal-Denied
            •    Commence Distribution
            •    Compel-Denied
            •    Continue Hearing
            •    Objection to Claim-Denied
            •    Objection to Exemptions-Denied
            •    Objection to Exemptions-Granted
            •    Relief from Stay-Denied
            •    Relief from Stay-Granted
            •    Sell by Debtor-Denied
            •    Sell by Debtor-Granted
            •    Suspend Plan Pmts-Denied
            •    Suspend Plan Pmts-Granted
            •    Terminating Show Cause Order - Compliance
            •    Terminating Show Cause Order - No Compliance

Judge Karlin explained that the District Court was currently working on stylistic revisions to their Local Rules.  In conversations with Judge O’Hara, she learned that they are trying to use a more active “voice” in their rules, to use more section headings, and to generally make the rules more readable.  The District Court also asked if we are interested in making similar updates to our Local Rules.  The changes being proposed are not substantive.  Judge Karlin asked if some member of the Bench-Bar Committee might be interested in working with Judge Karlin and her Law Clerk in making these stylistic changes to our Local Rules.  Emily Metzger volunteered to assist with the project with the goal of having those revisions ready to present to the Bench-Bar Committee at its next meeting.

Bill Griffin presented information about some problems he is encountering with D. Kan. Bk. S.O. 09-2.  The first problem is some mortgage creditors are not timely filing proofs of claim.  The Plan calls for mortgage payments through the plan but he cannot pay out collected funds until a proof of claim is filed.  He has contacted both the creditor and debtor(s)’ counsel and is still unable to get the proof of claim on file. A similar situation occurs when the mortgage lender sells the mortgage and the new creditor fails to file a Transfer of Claim.

Another issue in these cases, is when a post-petition default occurs on a mortgage.  Sometimes, debtor(s)’ counsel proposes payment of the arrearage direct to the mortgage creditor outside the Plan.  Judge Karlin noted that this would make the trustee’s mortgage-related records incomplete, thus making it difficult or impossible for the Trustee to fulfill his/her duty to file a motion, at the end of Chapter 13 cases, to deem the mortgages current.      

During a lengthy discussion, Judge Somers recommended that Bill coordinate with the other Chapter 13 Trustees to make district-wide proposals addressing these issues.  The group also discussed whether to incorporate the Standing Order 09-2 into a Local Rule.  The consensus was that the process is still too new.  The group recommended that the Standing Order remain, as is, so that the Court can more quickly respond as issues develop.

Judge Karlin asked to discuss some relatively minor issues with the group.  The first involves a proposed amendment to a Local Rule to remove a reference to “small business election” as this provision no longer applies post-BAPCPA.  She also mentioned that the National Conference of Bankruptcy Judges will be having it’s annual conference in October.  There is a $2,500 scholarship for minority attorneys to attend the conference.  If any local minority attorney wishes to attend, he/she should contact one of the Bankruptcy Judges for more information.

During her recent presentation to the Kansas Bankers Association, Judge Karlin was told that some of the names used on the sample forms accompanying D. Kan. Bk. SO 09-2 were unbusinesslike.  Judge Karlin responded that these names will be changed for the next iteration of the Local Rules.

The Committee also discussed D. Kan. Rule 77.1 regarding fax filings.  The Bankruptcy Court rescinded its fax filing rule with the implementation of CM/ECF.  The District Court recently amended their Rule to permit pro se filers to file by facsimile transmission.   The consensus of the group was that we do not need to address this situation since it occurs so infrequently.

The meeting was adjourned at 12:43 p.m.

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