KSB

Minutes from the October 28, 2014 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
October 28, 2014

PDFClick here for a PDF Copy of the Minutes


Minutes of the Bench Bar Committee

Topeka Courtroom 210

October 28, 2014

 

Members Present: Emily B. Metzger, Chair

Hon. Janice M. Karlin, Judges Representative

Joyce Owen

David Arst

Wendee Elliott-Clement

Laurie B. Williams

Jill A. Michaux

Steven Rebein, Chapter 7 Trustee

Justin W. Whitney

Andrew J. Nazar

 

Court Staff Present: David Zimmerman, Clerk

Hugh Zavadil, Chief Deputy Clerk

 

Members Absent: David Lund

 

Emily called the meeting to order at 10:04 a.m. She noted that the
committee had approved the minutes from the previous meeting via e-mail. She
also provided a brief overview of the agenda.

 

Old Business

 

Payment Change Notice

 

Wendee Elliott-Clement reported that the Western District of Missouri had
promulgated local rules pertaining to Fed. R. Bankr. P. 3002.1 Notice of Fees to
eliminate the need for a trustee to object to a Notice of Payment Change in cases
where the mortgage was not being paid through the plan. After a brief discussion, it
was decided that no corresponding local rule is necessary at this time because the
Chapter 13 Trustees in Kansas handle the process differently.

 

 Need for Revision to Local Rules Given change in UST Policy

 regarding 28 USC 586(e)

 

At the last meeting, the Committee recommended a change in the form plan
to address the U.S. Trustee=s new policy requiring Chapter 13 fee assessment at the
time of collection instead of at disbursement. A subcommittee agreed to review our
local rules and standing orders to see if any other rules needed amendment due to
this change in interpretation. A review of our rules and standing orders identified
two rules needing revision: 1) D. Kan. LBR 3015(b).1(g)(2)(ii) (dealing with


adequate protection/plan payments); and 2) D. Kan. Bk. S.O. 11-3 (Conduit
Mortgage) Section V paragraph (A) regarding Trustee Duties. The consensus of the
group was to avoid amending the conduit rule, since it is referred to in other rules
and is commonly known by that number, and instead recommend that the court
adopt a new Standing Order that would abrogate recently enacted D. Kan. Bk. S.O.
14-3 (enacted to change language in the Form Chapter 13 Plan relative to these
trustee fees) and incorporate its current provisions dealing with the form plan,
together with a revision to the previously described section of D. Kan. Bk. S.O. 11-3.
In the meantime, Judge Karlin asked members of the committee to review D. Kan.
Bk. S.O. 11-3 to determine if other revisions are necessary. That matter will be
discussed at the next Bench Bar Meeting unless any member wishes to discuss it
earlier by email.

 

 Possible Revisions to D. Kan. Form Chapter 13 Plan

 

At the June 23, 2014 Meeting, a sub-committee (with Laurie, Jill, Justin, and
Emily as members) was appointed to perform a comprehensive review of the
Chapter 13 form plan to determine if other modifications were necessary or desired.
Laurie noted that, despite multiple requests for comments via the bk-listserv, the
subcommittee received very few comments from the bar. One or more members of
the sub-committee offered the following recommendations for the full committee’s
consideration:

 

$ Modify Paragraph 1(a), which deals with whether debtor is above or below
median, to have a series of check boxes for each option instead of the current
drop-down lists.


 

$ A concern was raised regarding Paragraph 1(b). It was suggested that, if a
fixed payment amount and a fixed number of months are specified in the plan
and a debtor=s circumstances change, the debtor would be locked in to the
debtor=s disadvantage. Laurie indicated she would prefer to keep this section
unchanged. The court can order a change based on changed circumstances
and a debtor could initially include non-standard provisions on a case-by-case
basis.


 

$ Modify Paragraph 6, which deals with Domestic Support Obligations, and the
language following so that, if the plan preparer checks the box indicating
there is no DSO, the subsequent language would be collapsed or deleted.


 

$ Modify Paragraph 9(b)(i), which deals with debts secured by a principal
residence, and the language following so that, if the debtor checks the box
indicating there is no residential mortgage, the language regarding the
residential mortgage would be collapsed or deleted. Concern was expressed,



however, that allowing debtors to omit irrelevant provisions may result in
non-uniform form plans.


 

$ Add a plan paragraph estimating the anticipated dividend to non-priority
unsecured creditors. Laurie noted that the Chapter 13 Trustees oppose any
attempt to specify a dividend amount since there are too many unknown or
variable factors to allow debtors to accurately predict the dividend at the
time of plan preparation. Therefore, objections and subsequent litigation
would be more likely. Some members of the committee suggested that
unsecured creditors cannot reasonably interpret most plans without some
estimation. Consequently, they do not have a basis to evaluate the plan.
Concern was expressed that debtors should disclose when there is little
likelihood that unsecured creditors will receive a dividend. It was suggested
that such a provision might fit best under Paragraph 14 as a checkbox
provision.


 

$ Paragraph 9(c)CAOther Debts Secured by non-residential Real Estate
Liens@Cpurports to only apply to non-residential real estate, but &9(c)(iii)
describes mortgages that are being modified. This provision under limited
circumstances could also apply to residential mortgage debts. If and when
the plan is modified, the subcommittee unanimously recommends that
subparagraph (c)(iii) be moved to a new subparagraph (d) and subparagraph
(c)(iv) be similarly moved to a new subparagraph (e) and stated Aany creditor
treated under Paragraph 9(c)(ii) and 9(d).@ In addition, all references to
subparagraph 9(c)(iii) should be changed to 9(d). Likewise, references in the
non-standard provision for Paragraph 9(c)(iv) should be changed to 9(e). The
consensus of the committee was to accept these changes.


 

$ The third sentence of Paragraph 8 has a grammatical error, it states,
Anothing 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 second clause should add a Ato@ so it will read Ato
modify any applicable co-Debtor stay.@ The consensus of the committee was
to accept this change.


 

$ Paragraph 8CRelief from Stay Regarding Property to be Surrendered@C
states that A...any creditor may repossess, foreclose upon, sell or obtain
possession of the property the Plan proposes to surrender without obtaining
stay relief.@ It was suggested that this should be revised to state that A...any
creditor and its successors in interest or assigns....@ should also not have to
seek stay relief after a surrender.


 

$ There was discussion about whether to place all non-standard provisions in



a single paragraph rather than after each specific paragraph in the form
plan. Various committee members were concerned that this may cause the
non-standard provision to be ambiguous because it may not be clear which
form plan paragraph is being amended by the non-standard language.


 

Upon completion of the review of the above items the group discussed
whether the proposed changes were significant enough to warrant modification of
the Standing Order and the form plan at this time. Given the uncertainty
surrounding the possible adoption of a mandatory national plan, the consensus was
that any action on these items be deferred until the status of the national form plan
becomes clearer.

 

 D. Kan. SO 8-4 and possible email notice to Debtor Attorney

 

Jill introduced a discussion of D. Kan. Bk. S.O. 8-4, dealing with information
a creditor must supply consumer debtors who are paying their debt to mortgagees
or auto lenders directly. At the June meeting, Jill suggested adding a requirement
to the notice provision contained in D. Kan. Bk. S.O. 08-4(b)(5). That subsection
presently requires a mortgage creditor to notify the debtor (and counsel) by letter, if
the creditor believes the debtor is in default, before moving for relief from stay.
Because of mail delays, Jill recommends creditors also be required to provide that
notice by email to a debtor=s counsel. Her rationale is that, because of our district=s
conduit rule, if a stay relief motion gets filed, the trustees will typically insist on
compliance by amending the plan to make it conduitCwhich she wants to avoid if
her client is not really delinquent or could quickly become current. In addition, her
review of existing rules and standing orders reflected no other changes are
necessitated to existing rules or standing orders if this change is adopted.

 

After a brief discussion, including a query whether this scenario actually
occurs often enough for email notice to really make a difference, Jill agreed to
monitor the frequency of occurrence and report at the next meeting. Each member
of the committee was also asked to review D. Kan. Bk. S.O. 8-4 to see if any
additional changes are warranted if a requirement for email notice is added in the
future. This review is to occur prior to the next meeting. In the meantime,
creditors= counsel are strongly encouraged to provide email notice of the
alleged debtor default, in addition to the surface mail requirement
contained in the local rule.

 

New Business

 

 D. Kan. Bk. S.O. 14-2 re Extensions of the Stay under ' 362

 

 Emily introduced a discussion of D. Kan. Bk. S.O. 14-2, a recently effective


standing order dealing with procedures that should be followed when seeking an
extension of the stay under ' 362(c). Judge Karlin shared the concerns of the
judges that the motions, affidavit/declarations, and scheduling of these matters are
often defective in these areas: 1) failing to allow 14 days for objections by setting a
hearing to occur before the expiration of 14 days; 2) setting the hearing, if an
objection, on the 14th or 15th day, making it more difficult for the clerk to catch the
pleading in time to actually Aset@ a hearing; 3) failing to attach an affidavit, and/or
failing to have the affidavit sworn under penalty of perjury (or a 28 USC 1746
declaration under penalty of perjury); 4) confusion over the A48 hour@ provision for
conducting a hearing if the order is not entered earlier than 48 hours prior to the
hearing; and 5) confusion over whether the order must be approved by the Chapter
13 Trustee prior to being uploaded. The group discussed a draft revision presented
by Judge Karlin, which clarified the requirements for a Motion to Extend Stay and
proposed additional revisions. Judge Karlin will prepare a revised proposal based
on comments of the committee and circulate the draft at a later date.

 

 December 1, 2014 changes to Federal Rules Appellate Procedure

 and Fed. R. Bankr. P. 8000 series

 

Judge Karlin explained that new Federal Rules of Appellate Procedure
become effective December 1, 2014, which significantly alter procedures for
bankruptcy appeals. As a result, the Bankruptcy Appellate Panel local rules are
being amended, as well. Judge Karlin suggests a proposed revision to our district’s
single local rule dealing with appeals. She recommends eliminating D. Kan. LBR
8006.1 dealing with the record and issues on appeal, and replacing it, instead, with
new D. Kan. LBR 8009.1 (the renumbering is consistent with the national rules) as
follows:

 

LBR 8009.1

RECORD AND ISSUES ON APPEAL

Designation of Record. After filing the notice of appeal, the appellant must
file by formal pleading within 14 days from the date the notice of appeal is effective
pursuant to Fed. R. Bankr. P. 8002, a designation of the items to be included in the
record on appeal and a statement of issues. The designation of the record must
include the pleading numbers and file date of those pleadings designated. Parties
must perfect their appeal pursuant to Fed. R. Bankr. P. 8009.

 

After discussing whether inclusion of new D. Kan. LBR 8009.1 is the local
rules is truly necessary, since it only reiterates the content of the applicable federal
rules themselves, the committee voted to recommend to the judges that D. Kan.
LBR 8006.1 instead be eliminated from local rules without replacement.

 

David Zimmerman and Judge Karlin also noted that U.S. District Court D.


Kan. Rule 83.8.10 will likely need amendment to conform to some rule and style
changes, and that the District Court Clerk seeks our guidance on local rule changes
impacting bankruptcy. As a result, David agreed to draft a memo for Judge
Nugent=s signature that outlines the proposed changes and recommends new
language.

 

David Zimmerman introduced a discussion regarding the pending update to
Fed. R. Bankr. P. 7054, which changes the procedure for seeking attorney =s fees in
bankruptcy proceedings. New Rule 7054 includes much of the substance of Civil
Procedure Rule 54(d)(2) and Rule 7008(b), which currently addresses attorney=s
fees, will be deleted. David noted that D. Kan. Rule 54.1 and 54.2 govern some of
the same topics as the new federal rule, and are not entirely consistent with the
pending federal rule. David was asked to incorporate any specific
recommendations into draft rules for the committee=s review.

 

David Zimmerman introduced a discussion regarding the pending update to
Fed. R. Bankr. P. 8001(c), which now provides for service of the notice of appeal
electronically instead of by mail. After a brief discussion, it was decided that no
local rule was necessary at this time. It was suggested that David also incorporate
any additional suggestions into either draft rules or his memorandum for Judge
Nugent to the U.S. District Court and, if desired, the same could be circulated to the
committee for review and comment.

 

 New Judicial Conference Policy regarding Motions to Redact

 

Judge Karlin explained the new judiciary redaction policies concerning
personal identifiers, which will become effective December 1. Those policies make
clear that one need not reopen a closed bankruptcy case (with the attendant
reopening fee) to seek redaction, but impose a new $25 redaction fee per case
affected. Judge Karlin also presented a draft local rule governing such requests.
After extensive discussion, it was decided that David and Judge Karlin will revise
the proposed rule to reflect the input provided by the committee.

 

 Possible Extension of D. Kan. LBR 2014.1 Application For Employment

 of Professionals to Chapter 13s

 

Jill suggested the addition of a new subsection (i) that would limit notice of
the employment of a professional to only the UST and the Chapter 13 Trustee in
Chapter 13 cases. After an extended discussion, the majority of the committee
opposed this proposal.

 

 Proposal to allow corporate creditors to appear without counsel to defend a claim

 


Mike Munson requested a local rule permitting corporate creditors to appear
without counsel when responding to a claim objection, suggesting a similar rule
exists in the Western District of Missouri. Committee members researching this
proposal determined that there is no such local rule in the WDMO; that the
proposal is contrary to D. Kan. 9010.1, which prohibits the practice;, and found it
would be impractical for a number of reasons. The committee took no action.

 

 Text Orders

 

Emily raised a concern expressed at a recent Wichita Bankruptcy Council
meeting that text orders could be used on a more widespread basis. Hugh was
asked to make sure that the minutes reflect that the Court is receptive to use of text
orders, and that the following text orders are available:

$ 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


 

 

 Report of National Rules Committee

 

Jill provided a report of the meeting of the national rules committee. The
members, at the most recent meeting of that committee, acted on very few issues
because most of the items were still out for public comment. She did share that
attorneys should submit new public comments on the revised form plan and
attendant rules at this address:
http://www.uscourts.gov/RulesAndPolicies/rules/proposed-amendments.aspx ).

Only Anew@public comments are showing on the commenting website,
www.regulations.gov<http://www.regulations.gov/>. If you have previously
commented, and the Rules Committee did not adopt your recommended change, or,


if you were opposed to and still remain opposed to a national mandatory plan, you
should make the comment again or it may not be considered. Further, the
committee may interpret failure to comment as a signal that the revised mandatory
plan is now desired. At the time of the Bench-Bar committee meeting, only six
public comments had been received on the revised form plan and related rules.
The public comment period runs to February 17, 2015.

 

The Hon. Sandra Ikuta of the Ninth Circuit Court of Appeals is the newly
appointed chair of the committee. Bankruptcy Judge Eugene Wedoff (ND Ill.), the
outgoing chair, has been invited to continue to participate in group meetings.

 

Jill also reminded the committee of the other rules that become effective
December 1. Among the changes are:

$ Extensive revision of appellate rules and forms,
$ Changes in the time available for service of summons,
$ Changes in how cases are processed when multiple petitions are filed
in multiple districts,
$ Changes in the way attorney fees are awarded,
$ Revised means test forms, and,
$ Revised Motion/Order to Waive Chapter 7 Filing Fee.


 

Finally, Jill reported that the next big project for the national rules
committee will be an extensive review of noticing requirements. The committee
hopes to modernize the noticing process to take advantage of the technological
advances that have occurred since the existing rules were enacted. It is
anticipated that this process will last several years.

 

 Departure of Chief Deputy Clerk Hugh Zavadil

 

Judge Karlin informed the committee that long-time Chief Deputy Hugh
Zavadil had taken a new position and was leaving our Court November 7. The
Committee extended their thanks and congratulations to Mr. Zavadil and gave him
a standing ovation for his long-standing service to the Bench Bar Committee and to
the Court.

 

The meeting was adjourned at 2:43 p.m.

 

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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