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Clerk's 14-day Extension of Time to Answer

Clerk's 14-day Extension of Time to Answer

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LBR 5075.1(a)(1)(A) Refresher – Clerk’s Extension of Time to Answer

Formerly known to many practitioners as the “Clerk’s 10-day extension,” consistent
with the time computation amendments to the Federal Rules of Bankruptcy
Procedure, the local rule allows the Clerk to enter an Order granting a 14-day
extension of time to answer or respond to an adversary complaint. Remember, the
Clerk’s extension is a one-time extension. See LBR 5075.1(a)(1)(A)(i).

LBR 5075.1(a)(3) requires that the Order submitted for the Clerk’s signature
contain certain information: (1) the original answer date (the date that the answer
is initially due); (2) the new answer date (the date that the answer will be due with
the 14-day extension); and (3) the initial answer date has not expired (i.e. the
Clerk’s extension is timely sought).

A Clerk’s 14-day extension should be sought by Motion also containing the above
information, together with a proposed Order attached as an exhibit to the motion
for the Clerk’s signature (see attached sample re: Clerk’s 14-Day Extension Of
Time). A Clerk’s Order should not be combined with any other pleading such as an
Entry of Appearance for the defendant. The motion should be docketed to the
adversary case in CM/ECF using the following menu option: Adversary >
Motions > Extend/Shorten Time

Calculating the original answer date:
There appears to be much confusion or misunderstanding of when the answer time
begins to run in an adversary proceeding. It differs from a non-bankruptcy federal
district court civil suit. Fed. R. Bankr. P. 7012(a) states that if the adversary
complaint is duly served, a non-governmental defendant shall serve an answer
within 30 days after the issuance of the summons. In contrast, Fed. R. Civ. P.
12(a)(1)(A)(i) states that a non-governmental defendant shall serve an answer
within 21 days after being served with the summons and complaint. In short, 30
days after issuance of the summons is not necessarily the same as 30 days after
service of the summons. It is not uncommon in adversary proceedings where service
may be made by first class mail, Rule 7004(b), that the summons is issued on a
different date than the summons is served. In the docket report of an adversary
proceeding, there will be docketed entries for a request for summons, issuance of thesummons, and execution (or service) of the summons. Keep in mind that under Fed.

R. Bankr. P. 7004(e), the plaintiff has up to 7 days after issuance of the summons to
deposit the summons and complaint in the mail for service. Also, if the 30th dayafter issuance of the summons lands on a Saturday, Sunday, or Legal Holiday, the
answer is due on the next day that is not a Saturday, Sunday, or Legal Holiday. See
Fed. R. Bankr. P. 9006(a)(1).
Debtor Defendants:

Fed. R. Bankr. P. 7012(a) is careful to contain the proviso “if the adversary
complaint is duly served,” the answer is due 30 days after issuance of the summons.


Remember, if the defendant is the debtor and debtor is represented by counsel in
the bankruptcy case, Rule 7004(g) requires service of summons and complaint on
both the debtor and the attorney. Debtor is served pursuant to Rule 7004(b)(9) and
debtor’s attorney is served pursuant to Fed. R. Civ. P. 5(b). In such a case, if either
one is not served, service is incomplete and insufficient. Giving the debtor’s attorney
notice of the filing of the adversary complaint through the ECF system is notsufficient. See Clune Company, LC v. Johnson (In re Johnson), 2011 WL 482837
(Bankr. D. Kan. Feb. 7, 2011) (Somers, J.); Appendix 1-01 to D. Kan. LBR 5005.1, §

II.D. and § IX.C. Service on the debtor by first class mail to the address provided on
the petition is complete when the summons and complaint are mailed, whether the
address is correct or not. See In re Tatum, 2012 WL 2076424 (Bankr. D. Kan. June7, 2012) (Nugent, C.J.); In re Wallace, 316 B.R. 743, 747 (10th Cir. BAP 2004); Fed.
R. Bankr. P. 9006(e) (service of process by mail is complete on mailing).

 

Continuation of the Stay, 11 U.S.C. § 362(c)(3) and D. Kan. LBR 4001(a).3 [formerly S.O. 14-5]

Continuation of the Stay, 11 U.S.C. § 362(c)(3) and D. Kan. LBR 4001(a).3 [formerly S.O. 14-5]

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Read more: Continuation of the Stay, 11 U.S.C. § 362(c)(3) and D. Kan. LBR 4001(a).3 [formerly S.O. 14-5]

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