KSB

October 28, 2014 Bench-Bar Meeting

The U.S. Bankruptcy Court's Bench & Bar Committee will meet on Tuesday, October 28, 2014, at 10:00 a.m. in Judge Karlin’s Courtroom in the Topeka Federal Building.

If you have any issues or concerns you would like the Committee to address, please contact a member of the group with that issue or concern by October 23.  Current membership includes:  Emily Metzger, Joyce Owen, Laurie Williams, Steve Rebein, David Arst, David Lund, Andrew Nazar, Jill Michaux, Justin Whitney, and Wendee Elliott-Clement, .

If changes to a local rule are proposed (or you wish to propose a new local rule), it is helpful if the proponent of the change provides for the Committee’s consideration a sample or draft rule, with any associated comments or explanations.

Minutes from the June 23, 2014 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
June 23, 2014

 PDFClick here for a PDF Copy of the Minutes

Read more: Minutes from the June 23, 2014 Meeting

Minutes from the May 20, 2013 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
May 20, 2013

 PDFClick here for a PDF Copy of the Minutes


Minutes of the Bench Bar Committee
Topeka Courtroom 210
May 20, 2013
Members Present: Hon. Janice M. Karlin, Judges Representative
Joyce Owens, US Trustee Representative by telephone
Gary E. Hinck
Wendee Elliott-Clement (new member July 1, 2013)
David P. Eron
Paul D. Post
Jan Hamilton
Dana M. Milby
Eric L. Johnson
Court Staff Present: Ja`net Miles, Judicial Intern
Hugh Zavadil, Acting Clerk
Members Absent: Emily B. Metzger
Lee W. Hendricks
Robert L. Baer, Chapter 7 Trustee
Judge Karlin called the meeting to order at 10:00 a.m. Judge Karlin announced that
committee chair, Emily Metzger was ill and unable to attend the meeting. Judge Karlin also
noted that Lee Hendricks, an out-going member of the committee, was unable to attend.
Judge Karlin introduced Wendee Elliott-Clement as a new member of the committee,
Ja’net Miles, Judicial Intern, and announced that David Arst and Laurie Williams were also
recently appointed to the group. She also presented Dave Eron and Jan Hamilton with
Certificates of Appreciation for their service on the committee.
Courthouse Attire
Judge Nugent asked to have the committee discuss whether action should be taken to
upgrade the formality of attorney attire, specifically at 341 meetings. He had received a
complaint from a trustee about some attorneys appearing in less than professional attire,
including at least one attorney who appeared wearing jeans and a t-shirt. After discussion, it was
the consensus of the committee that these minutes should reflect that because 341 meetings are
court business, the judges do expect some level of professional attire at those sessions.
Stern v. Marshall Issues
Judge Karlin next introduced a discussion of pending Federal Rules changes pertaining to
issues governed by Stern v. Marshall. Judge Karlin indicated that the judges are considering
adopting a Standing Order to sooner adopt the proposed revisions to Fed. R. Bankr. P. 9033.1
After a lengthy discussion, the committee also unanimously recommend adopting a Standing
Order to adopt the proposed amendments to Fed. R. Bankr. P. 7012(b), 7008 and 7016 before
those rules would become effective through the national rules adoption process. [Judge Karlin
has advised that at the time of the drafting of these minutes, the Judges have met and have
decided to only adopt by standing order (at this time) the revisions to Rule 9033. This is due to
some minor concerns about the federal rule making/comment process, coupled with the admitted
rarity of the “core but no authority to enter final order” scenario to which these rules
amendments are aimed].
Limited Scope Representation
The U.S. District Court is considering revisions to enable limited scope representation. A
number of concerns and reservations were expressed about the concept of limited scope
representation in bankruptcy cases. Judge Karlin noted the proposed provisions dealing with
“ghostwriting.” No position was recommended on this issue.
D. Kansas Chapter 13 Form Plan
Judge Karlin asked the group to consider whether any portions of the nation-wide form
plan should be adopted and incorporated into our local Chapter 13 Plan. After an extended
discussion, the consensus of the group was to leave the local form plan unchanged.
Judicial Branch Budget Issues
Judge Karlin discussed the general nature of the budget issues facing the Federal
Judiciary in upcoming years. She noted that budget issues will likely impact the level of service
provided by the Clerks’ offices and may impact the way the Court directs noticing. She
explained the recent Judicial Conference initiatives relative to Shared Administrative Services.
Various committee members offered a number of possible cost-saving measures, including:
• Issuing an Order to Show Cause instead of a Notice of Order Due
• Letting Motions languish if Orders are not timely filed
• Requiring Proposed Orders to be submitted with Motions
• Simply deny Motions for which Orders aren’t timely uploaded
• Stop Issuing Orders to Correct
BNC Noticing Review
Judge Karlin gave a brief overview of the 2011 Noticing Review. This is a district-bydistrict
summary of the mailing costs per case for which the judiciary budget is responsible. Our
Clerk’s office, in comparison with almost every other district, pays for more noticing than a
1 The language of the 9033 standing order is likely to be as follows: In all proceedings in
which the bankruptcy court has determined that it may not enter final orders or judgments
without consent of the parties, and all parties have not consented, Federal Rule of Bankruptcy
Procedure 9033 shall apply. The bankruptcy court shall file proposed findings of fact and
conclusions of law, and Federal Rule of Bankruptcy Procedure 9033 shall apply to review of
those findings and conclusions.
majority of other districts. Other districts tend to require the parties—debtors, creditors,
trustees—to be responsible for the cost of many more mailings, thus reducing the mailing costs
to the judiciary. After a brief discussion it was decided that the Clerk’s Office should update the
prior Noticing Review and seek guidance from the Bench-Bar Committee if any particular issues
are identified.
D. Kan. LBR 6007.1
Eric Johnson led the discussion. Chapter 7 Trustee Eric Rajala had contacted him to bring
to the committee’s attention the recent 10th Circuit decision in Cook v. Wells Fargo, 2013 WL
1297590 (April 2, 2013) (10th Cir. 2013). That decision can be read to suggest our LBR 6007.1
procedure to allow Chapter 7 Trustees to abandon assets pursuant to 11 U.S.C. § 554 is
inadequate. Cook requires courts more expressly set the deadline for objecting to any notice of
intent to abandon, and that courts allow a hearing once an objection is filed. Although we had a
notice at the bottom of the back page of our B9A Notice of Meeting of Creditors form that
discussed Rule 6007.1, and although the Court’s practice is to set a hearing, we were concerned
that might not be enough under Cook. After a brief discussion, Eric moved and David seconded
that we adopt the proposed modifications to D. Kan. LBR 6007.1.2 The motion passed
unanimously. [The judges do not intend to adopt a standing order on this, but will instead allow
for the general notice and comment period. The revisions will thus likely become effective in
March 2014. Because the current practice is to allow a hearing, and because we have now
amended our B9A form [Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, &
Deadlines], the judges did not believe the earlier adoption by standing order was necessary].
ePOC Demonstration
Hugh demonstrated the Electronic Proof of Claim (ePOC) software developed by the
Middle District of North Carolina. The group expressed concern that the system, which does not
require user authentication, would permit debtors to surreptitiously amend claims filed by
2 D. Kan. LBR Rule 6007.1 would now look like this:
a. Deadline for Objecting to Abandonment. When the clerk of the court provides the Notice of
Bankruptcy Case, Meeting of Creditors and Deadlines, the Notice must contain a provision that
within 60 days from the conclusion of the meeting of creditors held under 11 U.S.C. § 341, the
Chapter 7 trustee may file notice of intended abandonment of any or all of the debtor's property
in the estate as authorized by 11 U.S.C. § 554 without further service on creditors or interested
parties. Unless a creditor or interested party objects to abandonment within 75 days after the
conclusion of the meeting of creditors, the property subject to the intended abandonment will be
deemed abandoned without further notice or order of the court.
b. Procedure if timely objection. If a creditor or party in interest timely objects, the court will
schedule a hearing. The property that is the subject of the objection to the intended
abandonment will not be deemed abandoned until the objection is resolved by court order. All
other property subject to the intended abandonment, however, will be deemed abandoned
without further notice or court order.
creditors. Hugh agreed to do some further investigation about the system to see if these issues
might be addressed.
The meeting was adjourned at 1:51 p.m.

Minutes from the November 12, 2013 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
November 12, 2013

 PDFClick here for a PDF Copy of the Minutes


Minutes of the Bench Bar Committee
Topeka Courtroom 210
November 12, 2013


Members Present: Emily B. Metzger, Chair

Hon. Janice M. Karlin, Judges Representative
Gary E. Hinck
Wendee Elliott-Clement (new member July 1, 2013)
David G. Arst
Paul D. Post
Laurie B. Williams, Chapter 13 Trustee
Dana M. Milby
Eric L. Johnson
Robert L. Baer, Chapter 7 Trustee

Court Staff Present:
David Zimmerman, Clerk
Hugh Zavadil, Chief Deputy Clerk

Members Absent:
Joyce Owen, US Trustee Representative

Emily Metzger called the meeting to order at 10:00 a.m. Judge Karlin introduced the new
Clerk of the Bankruptcy Court, David Zimmerman. She noted that the Minutes from the
previous meeting had been approved via e-mail. She also provided a brief overview of the
agenda.

Changes to D. Kan. Rules

Judge Karlin provided a brief overview of the pending rule changes to the U.S. District
Courts Local Rules. She also noted that the other judges had been unanimous in wanting
feedback from the Bench-Bar Committee regarding the impact of these rule changes. The
following is a summary of the discussion.

D. Kan. Rule 7.1–new (f) Motions in Civil Cases
Prescribes how to bring “pertinent and significant authorities” to the court’s attention
post- briefing or oral argument. The members discussed that it would seem a party would
always want to, and always should, bring “pertinent and significant authorities” to the
attention of the court, instead of “may,” but no one proposed that we should offer
anything different in the bankruptcy section of the rules.

D. Kan. Rule 16.2 Pretrial Conferences
Provides for a more streamlined, or at least more tailored, pre-trial process. The U.S.
District Court also revised its Pre-Trial Order form. It is still much more detailed/lengthy
than the Bankruptcy Court’s approved Pretrial Order form.

D. Kan. Rule 26.1 Completion Time for Discovery
This Rule, which required parties to “complete discovery within 4 months after the case


becomes at issue” or “within 4 months after the court issues its Rule 16(b) scheduling
order” has been abolished by the District Court. There was considerable discussion about
whether the lawyers on the Bench Bar Committee believed that 4 months was, in fact, an
appropriate guideline for most adversaries or contested matters. It was generally agreed
that 4 months is adequate time for most cases, and the members acknowledged that the
courts were good about extending that time if the parties explained why more time was
needed in the Report of Parties’ Planning Meeting. Ultimately, the Committee agreed we
should keep, unrevised, our own D. Kan. LBR 7026.1(b), which preserves this 4-month
guideline for practitioners in the Bankruptcy Court.

D. Kan. Rule 56.1–new (f) Summary Judgment Motions
This new subsection requires any represented party seeking summary judgment to
separately serve and file a form notice on an unrepresented party advising them, of the
duties they have and the consequences they may suffer, for ignoring a summary judgment
motion. Judge Karlin indicated she would enforce this rule in her cases.
.

D. Kan. Rule 83.1.1 Amendment of Rules
This changes the location of the notice for proposed adoption of amendments to the rules
from the Journal of the Kansas Bar Association to the court’s own web site. After
discussion, it was agreed that we should not make any change in this for bankruptcy rule
changes, as this is a better place to publish this for several reasons.

D. Kan. Rule 83.5.3(e) and (f)
The change in these two subsections is to allow for payment from the Bar Registry funds
for out of pocket expenses that have not been recovered (as opposed to a much larger
“recoverable” standard) by appointed counsel. A new subsection (f)(6) requires
reimbursement to the Fund if money is later recovered. Since we do not have appointed
counsel in bankruptcy cases, this should not have any impact on our practice.

New D. Kan. Rule 83.5.8 Limited Scope Representation in Civil Cases

This allows a lawyer to limit the scope of representation “if the limitation is reasonable
under the circumstances and the client gives informed consent in writing,” requiring
compliance with Kansas S.Ct. Rule 115A (noting that 115A(c), which appears to allow
ghost-writing, does not apply in our District). Subsection (b) says “The Bankruptcy Court
may have additional Local Rules that govern its limited scope of practice.”

The group discussed the American Bankruptcy Institute’s Best Practices for Limited
Services Representation [which suggests this should only apply in Chapter 7 cases], as
well as numerous facets of the proposed U.S. District Court Rule. After considerable
discussion, Emily Metzger, David Arst, Wendee Elliott-Clement and Dana Milby were
appointed to a sub-committee to draft a proposed rule to address Bankruptcy Court
concerns pertaining to limited scope representation. It was suggested that the proposed
rule could be initally adopted by a Standing Order. The group spent a great deal of time
discussing what was considered to be “core duties” of all Chapter 7 counsel, and Judge
Karlin emphasized that the judges have been very reluctant to allow attorneys to
“unbundle” core services (such as reaffirmation agreements, etc.).


D. Kan. LBR 4002.3-related Form Revision
Emily asked the CM/ECF system-generated Order To Debtor-In-Possession Respecting
Report and Payment of Federal Taxes be updated to reflect the current address for filing Federal
Income Tax Returns. That address is:

Internal Revenue Service
ATTN Insolvency/Advisory
2850 NE Independence Ave
Stop 5334 LSM
Lees Summit MO 64064-2327

Hugh agreed to amend the system-generated order [and has done so since the date of the
meeting].

National Form Plan Update

Laurie Williams briefly discussed the National Form Plan and related Federal Rule
changes. Those Rule changes are necessary to implement the Form Plan and are currently
available for public comment through February of 2014. The Form Plan and the proposed Rules
can be found at the link below. Members of the Bar are encouraged to review the proposed
changes and submit comments on or before February 15, 2014. Judge Karlin had recently met
with Judge Wedoff, chair of the committee proposing the plan, and he indicated that although
they will review every comment, those areas receiving more numerous comments will likely get
even closer scrutiny. Here is the link to where you make comments, and you can view the
comments already made before submission.
http://www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx

Notice of Fees Under Fed. R. Bankr. P. 3002.1

Wendee Elliott-Clement noted that creditors are sometimes very nervous about Fed. R.
Bankr. P. 3002.1 (which requires notice of payment changes, fees, expenses, charges, etc.) and
often err on the side of caution and file Notices of Fees in cases where the home mortgage is
being paid outside the Chapter 13 Plan. Since the plan does not provide for the Chapter 13
Trustee to pay the home mortgage, some of the Trustees object to the Notice just so everyone
(especially the Debtor and counsel) will know that the Trustee is not going to pay any claim.
Wendee Elliott-Clement will draft a proposed local rule to address this situation for the group’s
consideration. She will also work with Laurie to ensure that the proposed local rule addresses
the concerns of the Chapter 13 Trustees.

Proposed Amendment to the Appendix to D. Kan. LBR 5005.1

Hugh proposed, on behalf of the Clerk’s Office, a minor amendment to the Appendix to

D. Kan. LBR 5505.1. The purpose is to permit implementation of the revisions to Fed. R. Bankr.
P. 1007 which take effect December 1, 2013. Emily moved and Gary seconded a motion to
recommend the change. The motion was passed unanimously.
New Fee for Motions to Sell Free and Clear

Judge Karlin briefly explained that a new Miscellaneous Fee will become effective
December 1, 2013. This fee is for motions to sell property free and clear of liens under 11


U.S.C. § 363(f). There is no provision to defer or waive this fee (as there is for adversary
proceedings for trustees, for example).
CM/ECF Addresses

Emily explained that there was a recent thread on the bk-listserv regarding preferred
address substitution for creditors. Hugh explained that under 11 U.S.C. 342(f) creditors can file
a preferred address. The preferred address can apply nation-wide, to a particular district, or even
to a particular case. In the District of Kansas these preferred addresses are filed in the National
Creditor Registration Service (N.C.R.S.) pursuant to D. Kan. LBR 2002.1(d). Hugh also pointed
out that data from the court’s CM/ECF system is analyzed, substituted where appropriate, and
merged in real-time with data from N.C.R.S. to direct notices queued to the BNC to a creditor’s
“preferred” address. He also noted that the PACER Creditor List report (Reports>Creditor List
from the CM/ECF main menu) also does an on-line real time merge of the two systems’ data to
produce a printable matrix with substituted “preferred” addresses. So contrary to the suggestion
in the listserve, the Kansas bankruptcy court does not have a list of “secret” addresses, does not
maintain that list, and that list (where it does exist) could literally change every day since
creditors can change the address they wish to use whenever they wish.

 The meeting was adjourned at 12:57 p.m.



Minutes from the September 24, 2012 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
September 24, 2012

 PDFClick here for a PDF Copy of the Minutes


 Minutes of the Bench Bar Committee
Topeka Courtroom 210
September 24, 2012


Members Present: Emily B. Metzger, Committee Chair

Hon. Janice M. Karlin, Judges Representative
Lee W. Hendricks
Jay D. Befort, US Trustee Representative
Gary E. Hinck
Robert L. Baer, Chapter 7 Trustee
David P. Eron
Paul D. Post
Jan Hamilton
Dana M. Milby
Eric L. Johnson

Court Staff Present: Hugh Zavadil, Clerk’s Representative

The meeting was called to order at 10:10 a.m. Emily Metzger welcomed the Committee. Emily
explained that the minutes from the March 21, 2012 had been approved via electronic mail. New
members of the Committee were welcomed and introduced.

Agenda Items

1.
A draft revision to D. Kan. LBR 7054.1 had been previously circulated via email for
comment. The Committee voted unanimously to recommend adoption of the proposed
revision, which eliminates subsection (c) of the Rule.
2.
The group considered a series of proposed revisions to the Chapter 13 Form Plan. The
first proposal1 dealt with post-confirmation foreclosures. Paul Post noted that currently
debtor’s counsel must file a Motion to Modify the Plan (to clarify that the deficiency, if
any, should be discharged) when real property surrendered pursuant to the plan is
foreclosed (See Form Plan ¶ 8). Jan Hamilton noted some of the competing interests that
drive this proposal. After an extended discussion, it was decided that this situation would
1

“If during the pendency of this case, a mortgage loan holder obtains relief from
stay and forecloses its mortgage loan on the collateral resulting in sale of the collateral at
sheriff's sale, any remaining debt owed on such mortgage loan will be treated as general,
unsecured debt and discharged upon completion of the case.” OR “If during the
pendency of this case, the holder of a secured claim obtains relief from stay and forecloses its
lien on the collateral resulting in sale of the collateral, any remaining debt owed on such claim
will be treated as general, unsecured claim and discharged upon completion of this case. In
order to participate in any distribution to unsecured creditors, the holder of the claim must amend
its claim within __ days of the sale of collateral.”


be better addressed in a modified plan (and/or in the language of any Order Granting Stay
Relief), and the proposed language was not adopted.

3.
Next, Paul introduced a discussion to amend paragraph 3(b) of the form plan to include
explicit designation of case closing fees. This is to clarify, especially in cases where a
debtor has paid counsel all fees up front, that the attorney has already been paid for end
of case work. The proposal received unanimous support; it only adds one line to the
plan. Hugh was directed to make the change to the form plan documents and to draft a
Standing Order to adopt the revisions.
4.
The next proposed revision to the Form Plan would strip the lien of any creditor who
refuses to take property abandoned by the Plan.2 The consensus of the group was that
such a provision would not conform to existing case law, and that it is not provided by
the Code.
5.
Three different revisions to paragraph 8 were discussed.3 After extended discussion, the
following redline language was adopted, and the other changes were rejected:
RELIEF FROM STAY REGARDING PROPERTY TO BE SURRENDERED: On
Plan confirmation, any creditor may repossess, foreclose upon, sell or obtain possession
of the property the Plan proposes to surrender without obtaining stay relief. This
provision does not prevent the earlier termination of the stay under operation of law or
court order. Nothing contained in this section operates to permit in personam relief,
modify any applicable co-Debtor stay or to abrogate Debtor’s rights and remedies under
non-bankruptcy law. The trustee shall not make distributions on account of any secured
claim in this class.

New Business/Non-Agenda Discussions

6.
After a brief discussion of Employer Pay Orders, Judge Karlin suggested that anyone
having problems should collect several examples, send them to the Divisional Deputy In
2 “Any secured creditor listed who does not retrieve property to be surrendered under the
plan within ninety (90) days after confirmation, creditor will be deemed to have abandoned their
lien to the property and the confirmation order will constitute a release of lien. Debtor will be
authorized to dispose of the property without further claim of the creditor. “

3 Three parts were considered: 1) “This provision does not permit in personam relief of
any kind against the Debtor; 2) The surrender of assets under this provision shall constitute full
satisfaction of the claim secured by such collateral, unless within ___ days after confirmation,
the claim holder shall submit a claim for any deficiency balance; and 3) If the holder of a claim
secured by property to be surrendered under the plan fails to take possession of its collateral with
__ days after confirmation, the claim holder shall be deemed to have abandoned its lien. Debtor
may thereafter submit an appropriate order stating that such lien has been abandoned.”


Charge of the pertinent Clerk’s office, and, if necessary, meet with Clerk’s office staff to
discuss how to solve whatever problem exists.

7.
Jan Hamilton noted that a direct bill payment system for trustee payments is being
developed in Topeka.4 Other Chapter 13 Trustees are considering similar functionality.
8.
Judge Karlin discussed the proposed District Court Rule regarding Limited Scope
Representation. Judge Berger will serve on a committee to do further work on this
proposed rule. Dave Eron volunteered to represent the Bankruptcy Bench Bar committee
on that committee.
9.
The Topeka docket changes were discussed. It was the consensus that the changes were
effectively reducing the length of the dockets.
10.
Jan Hamilton requested video evidence presentation demonstrations at each of the
respective bar groups. Hugh will try to arrange these sessions. He also noted that anyone
wishing to use the video evidence presentation system can call the local Clerk’s office to
arrange training.
11.
Eric Johnson suggested a local rule to handle noticing Rule 2004 Examinations. Judge
Karlin suggested that Eric draft a possible revision and circulate it via email. The
committee can then vote via email whether to adopt the proposal. To get it in the next
edition of the published local rules, it would need to be adopted by November 14, 2012.
12.
The conduit payment Standing Order 11-3 was discussed. It is working well. It has
forced debtors to address early in the Chapter 13 process whether they can actually afford
the house. Despite higher trustee fees, the process does allow debtors to save on late
payment fees, etc.
The meeting was adjourned at 11:46 a.m.

4 After the meeting, Mr. Hamilton supplied the following web address for the bill pay
service he is considering: https://www.tfsbillpay.com.



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