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Minutes October 1, 2009 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
October 1, 2009

 

Members Present:    Emily B. Metzger, Committee Chair
            Hon. Janice M. Karlin, Judges’ Representative
            Jay Befort
            Joyce Owen, US Trustee Representative
            Lisa Epps
            Tom Barnes
            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:    Chelsea Herring
            Richard Wallace

The meeting was called to order at 10:08 a.m.  Emily Metzger welcomed the committee.  Emily noted that the minutes from the previous meeting, held June 5, 2009, had been circulated and approved via electronic mail. 

Stylistic and substantive revisions to D. Kan. LBRs

The first order of business was review of the proposed stylistic revisions of the Local Rules.  Judge Karlin noted that the U.S. District Court has now adopted the proposed stylistic revisions for their Local Rules, and the revisions will appear in the March 2010 edition.

Emily observed that during the stylistic review a number of substantive issues were identified.  Judge Karlin asked that the group reconsider proposed amendments to D. Kan. Bk. S.O. 08-4 and D. Kan. Bk. S.O. 09-2.  At the last meeting, the committee adopted revisions to all local rules and all Standing Orders to bring them into compliance with revisions to the Federal Rules of Bankruptcy Procedure that will become effective December 1, 2009 (dealing with calculating time in 7 day increments).  Because it appears that these Standing Orders will need to be modified in the near future for other reasons, Emily and Judge Karlin recommend we not make changes in those rules at this point because practitioners are very familiar with those S.O. numbers, and have incorporated those numbers into many forms.  As such, Judge Karlin suggested that the Court not change these Standing Orders to adopt deadline-related changes until we adopt either substantively revised Standing Orders or until the substance of these Standing Orders is incorporated into Local Rule.

Judge Karlin outlined some of the more salient substantive changes, a summary of which was contained in her September 18, 2009 memorandum to the committee.  She discussed recommended changes to D. Kan. L.B.R. 4002.1.  It currently does not require debtor(s) to file and provide copies of unfiled tax returns from years before the most current year before the filing.  After a brief discussion, Tom Barnes moved and Bill Griffin seconded, that the proposed amendment be adopted.  The Committee unanimously approved the recommendation.

Next, Judge Karlin introduced discussions concerning proposed amendments to D. Kan. L.B.R. 7026.1.  The current version D. Kan. L.B.R. 7026.1 does not contain reference to the procedure used when attempting to quash a subpoena, as does the D.  Kan.  Rule.  It also requires portions of deposition transcript to be used at trial to be filed on the date of trial.  The proposed revision adds “or earlier if required by court order,” because most pretrial orders require listing of all exhibits and our trial notice requires exchanging copies of exhibits in advance of trial.  After a discussion, Jay Befort moved, and Larry Michel seconded that the proposed amendments be adopted.    Again, the Committee unanimously approved the recommendation.

Judge Karlin also suggested that D. Kan. L.B.R. 7056.1  and D. Kan. L.B.R. 7012.1, dealing with summary judgment motions and motions to dismiss, respectively, should be revised not only to change the response dates in accordance with the December 1 time changes, but to reduce the reply brief from 23 to 14 days. This revision will ensure consistency with the U.S. District Court rule.  Lisa Epps moved and Larry Michel seconded that the proposed amendments be adopted.  Again, the Committee unanimously approved the recommendation. The Committee also directed Hugh to include these deadline changes in the Interim Local Rules, which will be published prior to December 1.

Next, Judge Karlin recommended that D. Kan. L.B.R. 9011.4 be revised to include reference to Western District of Missouri reciprocity, which is noted in the D. Kan. Rule on which our rule was based.  In addition, D. Kan. L.B.R. 9013.3 did not require unrepresented parties to file a certificate of service when they filed motions or pleadings, and this is situation is corrected by a proposed revision.  Further, D. Kan. L.B.R. 9074.1(c) currently requires the Chapter 13 trustee to sign all orders.  The proposed amendment would add a sentence to allow an attorney to bring a dispute over an order to the court’s attention when the Chapter 13 Trustee declines to sign the order.   Another proposed revision adds reference to unrepresented parties in the context of this rule.  Lisa Epps moved and Tom Barnes seconded that these proposed amendments be adopted.  Again, the Committee unanimously approved the recommendation.

Emily explained minor proposed revisions to D. Kan. L.B.R. 1001.1(d), D. Kan. L.B.R.  1007.1(a)(1)(O), D. Kan. L.B.R. 2090.1(a), and D. Kan. L.B.R. 4001(a).1(f)(3).  First, she recommended we only note revision dates, pursuant to D. Kan. L.B.R. 1001.1(d), when the amendment is substantive.  Second, she recommended the correction of D. Kan. L.B.R. 1007.1(a)(1)(O) to mimic discussion of small business debtors to match BAPCPA language regarding “election” of that status.  She next recommended a change in D. Kan. L.B.R. 2090.1(a) to correct any misperception that the bankruptcy court had its own separate bar from the District Court bar.  Next, she recommended revision of D. Kan. L.B.R. 4001(a).1(f)(3) to make it clear that Trustees would adjust claims to zero, effective on the date of the order, as soon as they received the order.  Larry Michel moved and Bill Griffin seconded that the proposed amendments be adopted.  The Committee unanimously approved the recommendations.

Hugh provided an overview of upcoming changes to Standing Orders.  Standing Order 09-3 was discussed at the June 2009 meeting and will adopt Interim Federal Rule of Bankruptcy Procedure 5012.  D. Kan. Bk. S.O.  09-4 will adopt  Interim Federal Rule of Bankruptcy Procedure 1007-I (as revised).  Finally, D. Kan. Bk. S.O.  09-5 will adopt Interim Local Rules establishing the required Federal Rule deadlines for the period from December 1, 2009 through March 17, 2010.

After a brief discussion, it was decided that a revised redline/strike through version of the stylistic changes would be circulated via email, because the original redline version previously circulated had been unhelpful because of a glitch in producing it.  The Committee agreed to review the revised redline version to ensure that all proposed stylistic and substantive revisions were acceptable, and to communicate any questions or concerns to either Judge Karlin or Emily on or before October 15, 2009.

Problems with Implementation of S.O. 09-2

Next, the group discussed some issues related to enforcement of D. Kan. Bk. S.O. 09-2.  Janet Walbert, a staff member of Bill Griffin’s Chapter 13 Trustee office in Kansas City, presented a number of situations which are presenting challenges for the Chapter 13 Trustees.  Problems include:

  • Mortgage Creditors not timely filing Proofs of Claim
  • Mortgage Creditor Providing Inconsistent or Contradictory Information, usually in regards to the required payment amount
  • Difficulty in Contacting Mortgage Creditors or Attorneys for those creditors
  • How to Proceed when a Mortgage Creditor fails to provide information or provides incorrect information.

After a lengthy discussion, it was recommended that the three Chapter 13 Trustees discuss what they consider to be necessary changes to the Standing Order and propose those changes to the Court.

CM/ECF information bar moved to bottom of page

Judge Karlin explained a recent change to the Court’s CM/ECF computer system which moved the information bar (case number, document number, file date, and page number) imprinted on filed documents from the top of the page to the bottom of the page.  The change came at the request of an attorney.  Judge Karlin asked that if anyone has problems with the move they contact the Clerk’s Office, chambers, or a member of the Bench-Bar Committee so that the problem(s) may be addressed.  The Committee was enthusiastic in support of the move.

 

Conclusion and compliments

Finally, Lisa Epps complimented the Clerk’s Office and the U.S. Trustee’s Office for their help and support in a recent Kansas City Chapter 11 case.  Others complimented the other Clerk’s offices. 

The meeting was adjourned at 11:35 a.m.

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