Minutes from the May 8, 2015 Meeting

Minutes of the Bench Bar Committee
Topeka Courtroom 210
May 8, 2015

PDFClick here for a PDF Copy of the Minutes

Minutes of the Bench Bar Committee
Topeka Courtroom 210
May 8, 2015

Members Present:
Emily B. Metzger, ChairHon. Janice M. Karlin, Judges Representative
Jordan Sickman, U.S. Trustee’s Office

 David Arst
Wendee Elliott-Clement
Laurie B. Williams
Jill A. Michaux
Steven Rebein,
Justin W. Whitney
Andrew J. Nazar
David Lund

Court Staff Present:
David Zimmerman, Clerk
Stephanie Mickelsen, Chief Deputy Clerk

Members Absent:

Emily Metzger called the meeting to order at 10:05 am. She noted that the
committee had approved the minutes from the previous meeting via e-mail.

Old Business

Possible Modification to D. Kan. Bk. Standing Order 08-4(b)(5)
to Require Email Notice of Letter Alleging Default

Emily Metzger noted that, apart from the ongoing question of any possible
amendments to our Chapter 13 Form Plan, the only outstanding old business itemis the possible modification of D. Kan. Bk. Standing Order 08-4(b)(5) to require a
mortgage creditor to email any letter alleging default to the debtor and the debtor’s
attorney. Jill Michaux reported that the speed of delivery by surface mail of thewarning letter that is required before a creditor seeks to modify the automatic stay
is not improving. She renewed her request that when the warning letter is sent by

U.S. mail, a copy should also be sent electronically to debtor’s counsel because it
takes a large part of the 10-day period provided by the rule for the letter to arrive.
She stated that there is a movement to address this issue nationally, but that would
take years before a national rule could be promulgated. It was suggested that the
letter might be filed with the court, thereby prompting an ECF notification to
counsel. Jill Michaux responded that that would be acceptable, but it would
highlight the debtor’s default (and perhaps result in the trustee or the judge
invoking the conduit mortgage rule). It was suggested that from a creditor’s point

of view, filing it could help demonstrate that there were multiple defaults and
multiple cures. It was also suggested that changing the 10-day period to a 14-day
period would help resolve the concern and would bring the rule into conformity with
the counting periods used by the federal rules generally.

The Committee resolved unanimously to recommend the period of
time in Standing Order 08-4(b)(5) be increased from 10 days to 14 days. It
further resolved that creditors’ counsel are encouraged to
contemporaneously email a copy of the letter alleging default to debtor’s
counsel at the same time the letter is sent by regular mail.

Judge Karlin and David Zimmerman will consult about the best way to
implement this proposed change to Standing Order 08-4.

New Business

Debtor Electronic Bankruptcy Noticing (DeBN) and
Proposed D. Kan. Bk. S.O. 15-1

David Zimmerman advised that Debtor’s Electronic Bankruptcy Noticing
(DeBN) is a new program that allows debtors to open an account with the
Bankruptcy Noticing Center so they can receive copies of court-issued notices and
orders by email rather than by regular mail. It is different from the Notice of
Electronic Filing (NEF) issued by CM/ECF. Proposed Standing Orders 15-1 and 152
are proposed to govern DeBN. Previous drafts containing the substance of theseorders were unanimously approved by the Committee by email. The questionpresented to the Committee is what the effective date should be, i.e. from what date
forward will debtors in every new voluntary case be required to file a DeBN optin/
opt-out form.

David Zimmerman introduced the DeBN Request Form and explained how it
is designed to minimize errors by requiring debtors to enter their email twice in all
capital letters. It would be filed as a private entry, but the debtors’ emails will be
publicly visible on the certificate of mailing.

Standing Order 15-2 merely adds a new subparagraph to LBR 1007.1(a)(2) so
that it requires the DeBN Request Form to be filed in CM/ECF as a document
separate from the petition. This is to allow the Clerk’s Office to track debtors using
DeBN and (it is hoped) eventually to automate what is now a manual process used
by the Clerk’s Office to create DeBN accounts.

When asked whether the DeBN Request Form will be provided to softwarevendors, David Zimmerman advised that he already has a list of vendors to whom
the form will be provided. It is hoped that the vendors will include the forms in the


bankruptcy software packages so the program will be as easy as possible for
attorneys. Some court DeBN Request Forms from other jurisdictions have already
been picked up by at least one software vendor.

Other details about the DeBN program that were discussed include the
following. DeBN will only email copies of documents that the court would otherwisemail to debtors. Attorneys will continue to receive ECF notices immediately when
items are filed in CM/ECF but DeBN notices are sent the night after the items arefiled (still several days before debtors would likely have received documents by
regular mail). If the debtor has a DeBN account from a prior case, the account will
remain active for subsequent cases. DeBN became active in Kansas on May 5,
2015, so debtors in existing cases are permitted to enroll in DeBN now. One email
address is permitted per debtor and joint debtors can opt to use the same email
address. It is unlikely that a DeBN account could send an email notice to multiple
email addresses (e.g., to notify several individuals working for a corporate debtor),
but if the debtor provides an email that is configured by the debtor to be forwarded
to a distribution list then that action might allow distribution to multiple recipients.
DeBN is at least 9 times more cost effective than mail notice. The DeBN RequestForm should be filled out and signed electronically and filed, rather than printing
the form, scanning, and filing the wet-ink-signed document.

Judge Karlin explained that there will be a strong presumption that a debtor
with a DeBN account received items by email (since the court would receive a
“bounce back” notice if the account has been closed). When asked about
enforcement for failure to file a DeBN Request Form, David Zimmerman advised
that a Notice of Deficiency will be issued. Judge Karlin stated that she herself has
not had to decide what the consequences will be for failing to file.

Judge Karlin also noted that at the national level there is a proposed change
to Fed. R. Bankr. P. 9036 to require entities to register for electronic noticing if they
are sent more than 100 notices via BNC within a month. Some creditors receiving
huge numbers of notices are not registered for electronic noticing. The enforcement
mechanism for the proposed rule change is controversial. The Administrative Office
of the U.S. Courts is considering setting up an email account for the creditors who
meet the threshold and electronically sending all notices to that account (and giving
the creditor access to the account with the ability to set up its own preferred email

Jill Michaux indicated that there is a proposal at the national level to allow
attorneys to use the BNC to serve mailings and take advantage of preferred
addresses provided by creditors to the BNC.

David Zimmerman explained that DeBN has been tested for an extended
period of time in Central California and Central Illinois. In response to questions,


he also explained that DeBN will only provide electronic noticing of court-issued
orders and notices to debtors. Service of documents by other parties won’t change;
they will need to be served as before. Creditors who desire electronic notification
through the BNC can sign up for an EBN account with the BNC.

The principal question presented to the Committee about DeBN is when the
court should begin to require debtors to file the DeBN Request Form in new cases.
Jill Michaux recommended that the date be the first day of a calendar month.
When asked how the new requirement will be publicized, Judge Karlin observed
that the court can post it to the court’s website and make an announcement on the
bklistserve and post the requirement as part of this meeting’s minutes. Jill
Michaux suggested that the court post a PowerPoint showing how to file the DeBN
form. David Zimmerman agreed that can be done. He also explained that somedelay in implementing the requirement to file the DeBN form is advisable to (1)
educate the attorneys about the new requirement and (2) to allow the court to
provide the DeBN form to software vendors. He also explained that the court ismaking a fillable pdf version of the form available that will prompt the user to fill inthe email address twice and verify that it was entered the same both times.

When asked how long software providers will need to make the DeBN form
available to its attorney users, David Zimmerman answered that because there are
so many software vendors it is unknown how much time they would each need to
make the form available as part of their software.

July 1 was suggested as the mandatory start date. David Zimmerman opined
that education about DeBN could be accomplished by July 1, but suggested that
August 1 would provide software vendors additional time to include the DeBN form
in their packages. Jill Michaux offered to begin using DeBN immediately.

The Committee unanimously recommended adoption of Standing
Order 15-1 with August 1, 2015, as the date to begin requiring debtors in
every new voluntary case to begin filing the DeBN opt-in/opt-out form.

In response to various questions about the DeBN Request Form, David
Zimmerman answered that it was drafted locally using the best features from forms
used by other courts around the country. It is acceptable for attorneys to replicate
the form without individual cells for each letter of the email address if it is typed.
All caps should be used to enter the email address on the form, particularly if
handwritten, to make it easier to read and reduce errors. The pdf form will
automatically use all caps.

David Zimmerman also explained that FAQs about DeBN are already postedon the court’s website.


Andrew Nazar suggested adding the word “publicly” to the DeBN Request
Form (second sentence) so it will read “I understand that my email address will
appear publicly on any certificate of mailing filed by the electronic noticing
provider.” David Zimmerman agreed to make the edition.

The Committee unanimously recommended adoption of Standing
Order 15-2 amending LBR 1007.1(a)(2).

Local Rule Addressing 11 U.S.C. § 521(f)

Judge Karlin posed the question whether a local rule should be adopted to
govern requests pursuant to 11 U.S.C. § 521(f). As background, she explained that
a local creditor had filed Section 521(f) requests in a number of Topeka Chapter 13
cases. This appeared to be the first time such requests had been made in this
district . Judge Karlin indicated the statute required disclosure of the requested
information in most instances, and that her biggest concern was with security,
particularly of tax returns. She explained that there is a CM/ECF event that, if
used, immediately locks the information and prevents others from seeing it.
[Editor’s Note: Two such events are found under the Bankruptcy Events menu,
Other category, as events named “Tax Documents” and “Tax Documents Small
Business.”] And the concern for security might be less with a party who is already
required by law to take prescribed measures to protect tax return information, suchas a bank, as compared with a former spouse or a small entity (i.e., Joe’s Bait Shop).

It was observed that only one creditor has filed such requests and none have
been filed since. When asked about the motivation behind the requests, Judge
Karlin recognized that creditors may have a reason to seek updated information
under this statute since Debtors often promptly move to modify their plans to pay
less when their income decreases, but seldom do so when their income significantly
increases. The Chapter 13 Trustee opposed the requests on the basis that the
trustee routinely reviews the tax returns (especially in above median income cases)
to see if there was a big change in debtor’s circumstances, but Judge Karlin noted
that under the statute the creditor did not need to trust the debtor nor seek
information through the trustee but could file a motion to formally obtain the

Laurie Williams stated that she was concerned about the risk of tax returns
being made public. She opposed adoption of a local rule on the issue, explaining
that if a debtor is concerned that a particular creditor, such as an ex-spouse or
“Joe’s Bait Shop,” lacks the means to protect the sensitive tax information then the
debtor could make a record of the concern and request ad hoc protection from the


Emily Metzger commented that a local rule might draw additional attention
to the section. It was noted by another Committee member that it was not worth
the time for most unsecured creditors to pursue these kinds of requests. Jill
Michaux recommended against creating a local rule because it would encourage
Section 521 requests. She also invited the court to look at two dictionary events
that are similarly named. She thought one event might lock the tax information
and the other might not, although she had not used either event. [Editor’s Note:
The “Tax Documents” and “Tax Documents Small Business” are found under the
Bankruptcy Events menu, Other category. Documents filed using either of these
events are restricted from public view.] Jill Michaux said that she tried to ascertain
if Section 521 requests are being made in other courts around the country, but
found no one who was routinely making such requests. She also said that if a non-
bank made requests, she would want specific protections from the court and might
want to file the documents with the court rather than submitting the information
directly to the creditor. Judge Karlin said she would be open to such requests.

No one on the Committee thought that more formal action should be
taken on this issue.

Requiring Filers to Provide Email Address for Service and Other Contact

Andrew Nazar brought two recommendations at the request of a non-
committee member of the bar. The first request was that if a creditor or pro se
debtor communicated by email, they should thereafter be deemed to consent to
service by email. The request grew out of a situation where she was corresponding
with a creditor who would send her materials by email but would not accept email
from her so she had to also mail everything to the creditor by regular mail. Andrew
Nazar voiced concern that because of Fed. R. Bankr. P. 9036 and 7004 and Fed. R.
Civ. P. 5 the proposal was impermissible because a party had to take an affirmative
step such as signing up for CM/ECF or requesting electronic service before the party
could be served by email. Therefore, he thought a local rule could not enforce what
was requested.

Jill Michaux asked if a creditor could be required to sign up for electronic
noticing. David Zimmerman indicated that an amendment to Rule 9036 is under
consideration. Judge Karlin noted that the amendment would apply only to
creditors who received 100 notices per month by mail. Jill Michaux noted that the
3-day rule for service is being eliminated for electronic service but not for mailed

The Committee decided that no action could be taken on the request.


Proposed Amendment to the Court’s Discharge Order to Reflect
Lack of Judgment Liens on Homestead Property

Andrew Nazar explained that the second request grows out of title company
requests for comfort orders stating that liens do not attach to homestead property
even though Kansas law is extremely clear that liens do not attach and no order is
necessary. Emily Metzger agreed that the law is clear. Judge Karlin observed thata generic recitation of the law in the discharge order is not likely to satisfy a title
company (without a specific legal description actually identifying what real propertyis the homestead). She explained that she has a text order that she enters when
these motions are filed, hoping it will discourage others from filing the motions,
which she thinks are unnecessary under settled Kansas law. She finds it hard to
believe that there is a title company that does not understand this point of law,
though she does not mind signing the comfort orders in the rare cases where
debtor’s counsel is getting push back. [This is an example of the text Judge Karlin
frequently uses: “I sign this as a ‘comfort’ order, only, since I believe the order is
unnecessary under Kansas law. See Deutsche Bank Nat. Trust Co. v Rooney, 39
Kan. App.2d 913, 917 (Kan. App. 2008) (holding judicial lien doesn't even attach to
homestead property), thus no lien to remove/release.”]

Judge Karlin observed that the December 2007 version of the discharge order
contains three provisions about nondischargeable debts that are only applicable to
cases filed on and after October 17, 2005. All agreed that those lines can and should
be removed since there should be no further discharge orders in pre-BAPCPA cases.
But she recommended further review of the discharge order for any changes needed,
and invited the Committee to review the discharge orders. Comments will be
shared by email.

Jill Michaux observed that the discharge order under discussion was marked
as Official Form B18, but is a variant of the national form, but if new Rule 9009 is
adopted then it will not allow us to alter national forms.

David Zimmerman added as an aside that the court has now adopted an
autodischarge feature that will automatically enter discharge in cases that meet the
array of requirements. Therefore, if a party wishes to delay discharge (for example,
to file reaffirmation agreements since some judges will not reopen cases for a post-
discharge reaffirmation agreement), they should be sure to file a motion to delay
entry of discharge.

David Zimmerman will send the Committee the current Chapter 7
and Chapter 13 discharge orders to review.


National Form Plan Update

Laurie Williams shared that the national form plan comment period ended in
February and received more comments than any other rule has received, including
a letter signed by 144 bankruptcy judges opposing the form plan. Most comments
were in opposition. After a hearing on the plan, two judges proposed a last-minute
compromise that would allow bankruptcy courts to use a single, locally-approved
form plan, otherwise the national form plan would be required. In April, the vote
was to pursue the compromise with further amendments to be made. It is now
before a subcommittee.

Judge Karlin explained that a 9-judge subcommittee drafted the letter inopposition that the 144 judges signed. The letter basically said we do not need or
want a national form plan. The two judges who proposed the compromise made the
proposal without first clearing it with the other 142 judges. The compromise wouldnot impact Kansas—at least today since we have our own form plan, but the
concern is that it establishes a slippery slope and would be used as a means to
impose the national form plan in a few years. Advocates of the national form plan
are also proposing that provisions be included in the compromise plan to make it
more like the national form plan. Those changes would require us to amend our
plan to place certain things in certain places, but would not dictate most of the

Laurie Williams explained that some are trying to minimize the number of
changes so they can avoid republishing the plan for more public comments. That
would allow it to become effective December 1, 2016, rather than in 2018. Jill
Michaux explained that those asserting it need not be republished espouse that the
compromise is a lesser included proposal so it need not be republished.

Jill Michaux listed those who testified in favor and in opposition to the
national form plan. She also said there were 30+ bankruptcy judges who signed a
letter in favor of the national form plan, 144 bankruptcy judges who signed a letter
in opposition, and 83 trustees who oppose the plan. At the beginning of the hearing,
the chair of the standing committee noted that because of the extent of the
opposition, something like a lesser plan or interim pilot project should be
considered, so questions were asked about what kind of lesser proposal should be
considered. The proposed compromise grew out of that discussion. At a subsequent
April 20 meeting, a general concept of a compromise plan was supported. Jill
Michaux outlined the essential elements that would determine whether a local plan
would qualify as a “conforming plan” under the compromise. Some of the initial
supporters of the compromise no longer support it. Jill Michaux said everyonesupports the concept of a compromise, but they dislike the compromise under
consideration when they learn the details. Jill Michaux understood that NACTT,
NACBA, and NCBJ refused to take a formal position on the national form plan


because members are on both sides of the issue. Judge Karlin said the BankruptcyJudges Advisory Group refused to take a position for the same reason. Jill Michaux
said the issue was assigned to the forms subcommittee to work on the details of the
compromise. She is on the subcommittee. Judge Dow of the W.D. Mo. is the chair.
There is concern about the politicization of the Rules Committee, due in part to
increased access to information via the internet.

Judge Karlin noted that once the Rules Committee adopts a rule, it goes to
the Judicial Conference, then to the Supreme Court.

Jill Michaux said that if there had been a vote on approving the plan or no
plan, there would have been only one or two votes against adopting the national
form plan notwithstanding the comments.

National Rules Changes Update

Jill Michaux provided a detailed report on changes to national rules and
forms. She said there will be form changes to address ABLE accounts, which are
like health savings accounts for disabled persons.

Separate forms will be issued for individuals as a 100-series and non-
individual entities as a 200-series. The 300-series are for notices and 400-series will
be claim forms.

Form questions will be different so software will be different. Forms were
changed to make it easier for pro se debtors to fill them out by hand. They arelonger and may ask several questions where the previous form asked only one.

Amending forms will be more complicated because of the mismatch between
old and new forms. Jill Michaux suggested that debtors might seek leave to amend
using the old forms.

Lengthy instruction booklets will accompany the forms, similar to IRS
instruction booklets for Form 1040.

Electronic Self Representation (ESR) is available in California Central, New
Mexico, and New Jersey. This software helps Chapter 7 pro se debtors enter data
and print forms to file with the court, similar to TurboTax. This is an effort to
relieve the Clerk’s Office from typing pro se forms, Jill Michaux says. ESR users
will be permitted to use old forms because ESR software is not ready for the new
forms. Jill Michaux has concerns that it will encourage pro se filers and internet
petition preparers.


New Form 410A will replace Attachment A to automate mortgage companies’
itemizing charges by date and amount.

Rule 5005(a) will conform to Fed. R. Civ. P. 5(d). Electronic filing will be
required by everyone but pro se filers because of concerns about prisoner filers.

Rule 1006(b) is being amended to say individual districts can have their own
rules about paying filing fees in installments, but they must accept a petition even
if the filing fee is not paid. Courts cannot refuse to file the petition for failure to pay
but can issue a deficiency order. Judge Karlin noted that our court has tightened
its enforcement of installment fee payments and is more frequently dismissing
cases (especially in Chapter 7, where there is no plan on file, as in Chapter 13s, to
pay the fees). Jill Michaux said she fought vigorously to protect the debtors’ ability
to pay the filing fee through the plan.

Additional discussion of federal civil rules and evidence rules will take place
during the Committee’s next meeting. Judge Karlin said she will volunteer one of
her law clerks to review the changing rules to determine how they will impact our
court rules.

As an aside, David Zimmerman asked for feedback about a new CM/ECF
dictionary event that the Clerk’s Office is considering. It would allow parties tocreate a record on appeal by clicking buttons next to a list of docket items in the
case. The event would then generate the record on appeal including hyperlinks tothe selected docket items. Exhibits, which are not filed in the case, would need to
be listed in addition to the selected items. The Committee enthusiasticallysupported the proposal. The bankruptcy court is talking with the district court tolearn whether it would accept a notice of electronic availability of the record in lieu
of the record on appeal itself.

Jill Michaux noted that proposed Rule 9009 would prohibit local amendmentsto national forms. That was geared principally to preventing local courts from
modifying the national form plan, but she notes that there may be unintended
consequences. She invites people to let her know of any examples.

Jill Michaux advised that the Proof of Claim Form is also changing.

Jill Michaux explained that all of the new proposed forms will go into effect
on December 1, 2015. The new forms are located in the agenda books. JudgeKarlin suggested that the link be included in the minutes. [Editor’s Note: The
Standing Committee agenda books for the April 20-21, 2015 meeting and the May
28-29, 2015 meeting can be downloaded from http://www.uscourts.gov/rulespolicies/


The meeting was concluded at 12:31 pm.


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


$ 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


$ 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


$ 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


LBR 8009.1


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


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 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

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

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.

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 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.

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