Pursuant to the authority vested in this Court by Rule and Statute;
IT IS ORDERED that the rules attached hereto and designated "Local Rules of the United States Bankruptcy Court for the District of Kansas" are adopted and shall become effective January 1, 2000, and shall supersede the Court's existing rules and standing orders which are repealed effective January 1, 2000.
DATED this 3rd day of November, 1999.
- /s/ James A. Pusateri
- JAMES A. PUSATERI, CHIEF JUDGE
- /s/ John K. Pearson
- JOHN K. PEARSON, JUDGE
- /s/ John T. Flannagan
- JOHN T. FLANNAGAN, JUDGE
- /s/ Julie A. Robinson
- JULIE A. ROBINSON, JUDGE
ATTEST:
/s/ Fred W. Jamison
FRED W. JAMISON, CLERK
Counsel who are unfamiliar with Kansas bankruptcy practice may find some helpful information in this preface to The Rules of Practice and Procedure of the United States Bankruptcy Court for the District of Kansas.
The Bankruptcy Code consists of amendments to the Bankruptcy Reform Act of 1978, P.L. 95-598, Title I, Sec. 101, 92 Stat. 2549, enacted into positive law November 6, 1978, effective October 1, 1979. Since its enactment, Congress has amended this law at least every other year:
1982--Bankruptcy Technical Corrections Act, Pub. L. No. 97-222, ß 1(a), 96 Stat. 235, July 27, 1982.
1984--Bankruptcy Amendments and Federal Judgeship Act of 1984 (BAFJA), Pub. L. No. 98-353, 98 Stat. 333, July 10, 1984.
1986--The Bankruptcy Judges, United States Trustee, and Family Farmer Bankruptcy Act of 1986, Pub. L. No. 99-554, Title III, 100 Stat. 3119, Oct. 27, 1986.
1988--Retiree Benefits Bankruptcy Protection Act of 1988, Pub. L. No. 100-334, ß 2(a), 102 Stat. 610-613, June 16, 1988.
1990--Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, November 5, 1990.
1992--Bankruptcy Judges Act of 1992, Pub. L. No. 102-361 (H.R. 5688), August 26, 1992.
1994--Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, 108 Stat. 4106, October 22, 1994.
In 1982, the Supreme Court declared the jurisdictional support for the 1978 Act unconstitutional in Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). It did so because 28 U.S.C. ß 1471(c) invested non-Article III bankruptcy courts with powers exercisable only by Article III courts.
After Marathon, the bankruptcy system operated under an Emergency Rule promulgated by the Judicial Conference of the United States until 1984 when Congress enacted corrective legislation including 28 U.S.C. ß 1334 which states in subparagraph (b) that, "the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11."
Hoping to cure the constitutional infirmity, Congress declared that bankruptcy judges would "constitute a unit of the district court to be known as the bankruptcy court for that district." 28 U.S.C. ß 151.
To transfer the bankruptcy power to the bankruptcy courts, the 1984 amendments provided through 28 U.S.C. ß 157(a) that, "[each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district."
In Kansas, 28 U.S.C. ß 157(a) has been implemented by a Standing Order dated August 1, 1984 (effective July 10, 1984). However, the order itself does not appear in the Rules of Practice and Procedure of the District Court. Rather, it is mentioned in District Court Rule 705 entitled "Clarification of General Reference to Bankruptcy Judges." The exact text of the order reads:
Pursuant to Sec. 104 of the Bankruptcy Amendments and Federal Judgeship Act of 1984, 28 USC Sec. 157, this court refers all cases under Title 11, and any and all proceedings arising under Title 11, or arising in or related to a case under Title 11, to the bankruptcy judges for the District of Kansas, for consideration and resolution consistent with the law. The Court recognizes the exception contained in Sec. 157(b)(5).
IT IS HEREBY ORDERED that the Bankruptcy judges for the District of Kansas be and they hereby are directed to exercise the authority and responsibilities conferred upon them by the Bankruptcy Amendments and Federal Judgeship Act of 1984.
IT IS FURTHER ORDERED, effective as of July 10, 1984, that any and all cases under Title 11, and any and all proceedings arising under Title 11, be and hereby are referred to the bankruptcy judges of the District of Kansas for consideration and resolution consistent with the law.
Dated this 1st day of August, 1984.
The following hierarchy of rules underlie and aid the application of the statutory bankruptcy law:
The Federal Rules of Civil Procedure
The Federal Rules of Evidence
The Federal Rules of Bankruptcy Procedure
The Rules of Practice and Procedure of the United States District Court for the District of Kansas
The Rules of Practice and Procedure of the United States Bankruptcy Court for the District of Kansas
The Federal Rules of Civil Procedure apply in bankruptcy adversary proceedings through Rule 7001 of The Federal Rules of Bankruptcy Procedure.
The Federal Rules of Evidence state in Rule 101: "These rules govern proceedings in the courts of the United States and before United States bankruptcy judges . . ., to the extent and with the exceptions stated in rule 1101."
The following terms of Rule 83 of the Federal Rules of Civil Procedure permit district courts to enact local rules:
Each district court by action of a majority of the judges thereof may from time to time, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice not inconsistent with these rules. A local rule so adopted shall take effect upon the date specified by the district court and shall remain in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located. Copies of rules and amendments so made by any district court shall upon their promulgation be furnished to the judicial council and the Administrative Office of the United States Courts and be made available to the public. In all cases not provided for by rule, the district judges and magistrates may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act.
Accordingly, in Kansas the Court has enacted The Rules of Practice and Procedure of the United States District Court for the District of Kansas to assist litigants.
Next in the hierarchy are The Federal Rules of Bankruptcy Procedure. They find their source in 28 U.S.C. ß 2075 which provides:
The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure in cases under Title 11.
Such rules shall not abridge, enlarge, or modify any substantive right.
The Supreme Court shall transmit to Congress not later than May 1 of the year in which a rule prescribed under this section is to become effective a copy of the proposed rule. The rule shall take effect no earlier than December 1 of the year in which it is transmitted to Congress unless otherwise provided by law.
Rule 9029 of The Federal Rules of Bankruptcy Procedure authorizes the District Court to adopt local rules relating to bankruptcy:
Each district court by action of a majority of the judges thereof may make and amend rules governing practice and procedure in all cases and proceedings within the district court's bankruptcy jurisdiction which are not inconsistent with these rules and which do not prohibit or limit the use of Official Forms. Rule 83 F. R. Civ. P. governs the procedure for making local rules. A district court may authorize the bankruptcy judges of the district, subject to any limitation or condition it may prescribe and the requirements of 83 F. R. Civ. P., to make rules of practice and procedure which are not inconsistent with these rules and which do not prohibit or limit the use of the Official Forms. In all cases not provided for by rule, the court may regulate its practice in any manner not inconsistent with the Official Forms or with these rules or those of the district in which the court acts.
Rule 9009 of The Federal Rules of Bankruptcy Procedure fixes the responsibility for Official Bankruptcy Forms:
The Official Forms prescribed by the Judicial Counsel of the United States shall be observed and used with alterations as may be appropriate. Forms may be combined and their contents rearranged to permit economies in their use. The Director of the Administrative Office of the United States Courts may issue additional forms for use under the Code. The forms shall be construed to be consistent with these rules and the Code.
Finally, to effectuate Federal Rule of Bankruptcy Procedure 9029, Rule 83.8.12 of The Rules of Practice and Procedure of the United States District Court provides: "The Bankruptcy Court may adopt supplemental Local Rules not inconsistent with these District Court Rules, the Bankruptcy Rules, or Title 11 or Title 28 of the United States Code."
The Rules of Practice and Procedure of the United States Bankruptcy Court for the District of Kansas flow from the outlined authorities and the efforts of the members of the Bankruptcy Rules Committee listed within.
In addition to the Bankruptcy Court Standing Orders appearing at the end of these local bankruptcy rules, there may be additional standing orders that are not published herein. Counsel can obtain any additional standing orders from the Clerk of the Bankruptcy Court.
Individual bankruptcy judges have issued practice Guidelines suggesting procedures for matters pending before them which counsel can obtain from the Deputy Clerk where the individual judge presides.
The Rules and Standing Orders can be electronically accessed through PACER.
The bankruptcy court is a unit of the district court and these rules merely supplement the district court rules. This means counsel in bankruptcy proceedings must follow the district court rules relating to bankruptcy (D.Kan.Rules 83.8.1 through 83.8.13) and, where applicable, the other district court rules. Attorneys who are not admitted to practice before the federal courts in Kansas should note carefully and follow closely D.Kan.Rules 83.5.1 through 83.6.12 on the responsibility, registration, appearance, and withdrawal of counsel.
Finally, D.Kan.Rules 83.8.1 through 83.8.13 are devoted to bankruptcy topics such as withdrawal of reference, removal, abstention, jury trial, and appeal of bankruptcy cases from the Bankruptcy Court to the United States District Court.
LBR 1001.1 SCOPE OF RULES; CITATION
LBR 1004.1 PARTNERSHIP PETITIONS
LBR 1005.2 CAPTIONS; CASE NUMBERING SYSTEM
LBR 1007.1 FILING OF PETITIONS AND ACCOMPANYING PAPERS
LBR 1007(b).1 PREPARATION OF PETITION AND SCHEDULES; COPIES
LBR 1009.1 AMENDMENTS OF VOLUNTARY PETITIONS,
LISTS OF CREDITORS, SCHEDULES AND
LBR 1017.1 TRUSTEE'S DUTIES UPON CONVERSION
LBR 1073.1 ASSIGNMENT OF CASES
LBR 2002.1 NOTICE TO CREDITORS AND OTHER
LBR 2014.1 APPLICATION FOR EMPLOYMENT OF
LBR 2015(a).1 TRUSTEE COMPLIANCE WITH
ADMINISTRATIVE REQUIREMENTS OF
LBR 2016.1 COMPENSATION OF PROFESSIONALS
LBR 2090.1 ATTORNEYS - ADMISSION TO PRACTICE
LBR 2091.1 PROFESSIONAL CONDUCT
LBR 3022.1 FINAL DECREE IN CHAPTER 11
LBR 4001(a).2 EFFECT OF AUTOMATIC STAY IN CHAPTER 12
AND 13 CASES ON INCOME WITHHOLDING
LBR 4002.1 TRUSTEE REQUESTS FOR INFORMATION
LBR 4002.3 DELINQUENT TAX RETURNS
LBR 4003(a).1 TIME LIMITS FOR AVOIDANCE OF LIENS ON
LBR 4070.1 INSURANCE ON MOTOR VEHICLES
LBR 5003.1 ACCESS TO COURT RECORDS
LBR 5003.2 WITHDRAWAL OF COURT RECORDS
LBR 5072.1 COURTROOM PRACTICES
LBR 5074.1 GENERAL RULE ON DOCUMENTS
TRANSMITTABLE BY FACSIMILE FILING
LBR 5075.1 ORDERS GRANTABLE BY BANKRUPTCY
LBR 6004.1 PERSONS PROHIBITED FROM PURCHASING
LBR 6007.1 ABANDONMENT OF PROPERTY OF THE
LBR 6008.1 REDEMPTION OF EXEMPT/ABANDONED
LBR 7003.1 COMMENCEMENT OF ADVERSARY
LBR 7004.1 SERVICE OF SUMMONS AND COMPLAINT
LBR 7041.1 DISMISSAL OF BANKRUPTCY CODE ß727
COMPLAINTS OBJECTING TO DISCHARGE
LBR 7054.1 TAXATION AND PAYMENT OF COSTS
LBR 7056.1 MOTIONS FOR SUMMARY JUDGMENT
LBR 7065.1 RESTRAINING ORDERS AND TEMPORARY
INJUNCTIONS IN ADVERSARY ACTIONS
LBR 8006.1 RECORD AND ISSUES ON APPEAL
LBR 9004.1 FORM OF PLEADINGS AND PAPERS
LBR 9010.1 APPEARANCE BY CORPORATIONS,
PARTNERSHIPS AND ENTITIES OTHER
LBR 9013.1 BRIEFS AND MEMORANDA
LBR 9019.2 ALTERNATIVE DISPUTE RESOLUTION
LBR 9070.1 FILING - NUMBER OF COPIES
LBR 9074.1 JOURNAL ENTRIES AND ORDERS
LBR 9078.1 CERTIFICATES OF SERVICE
S.O. 99-1 PREPARATION AND FILING OF MATRIX
S.O. 99-2 SCHEDULING, LISTING AND NOTICING THE UNITED STATES AS A CREDITOR
S.O. 99-3 SERVICE OF NOTICE IN CHAPTER 13 CASES
These supplemental rules are adopted pursuant to Fed. R. Bankr. P. 9029 and D. Kan. Rule 83.8.12. To the extent not provided by more specific Fed. R. Bankr. P. or D. Kan. LBR, practice before this court is governed by applicable D. Kan. Rules. See D. Kan. Rule 83.8.2. These rules shall, in special cases, be subject to such modification as the court may deem necessary or appropriate to meet emergencies or to avoid injustice or great hardship. These rules shall be cited as D. Kan. LBR 1001.1, e.g.
The petition of a partnership shall not be combined with the petition of any individual or other entity.
(a) Captions. The caption of each petition filed shall state the full and correct name of the debtor, whether individual, partnership, or corporation. For individuals, the absence of a middle name, or the existence of a middle initial only, shall be indicated parenthetically, e.g., John (NMN) Smith or John T. (MIO) Smith. The debtor's social security number and/or taxpayer identification number (as applicable) shall be set out below the caption.
(b) Case Numbering System. Each case when filed shall be assigned a number by the Clerk, which shall begin with a two-digit indicator of the year in which the case was filed, followed by a hyphen and the individualized case number of five digits, followed by another hyphen and the chapter number of the case. The five-digit individualized case numbers shall be as follows: Wichita cases shall begin with a "1" (e.g., 99-10001-7); Kansas City cases shall begin with a "2" (e.g., 99-20001-11); and Topeka cases shall begin with a "4" (e.g., 99-40001-13). The Clerk may add a judge identifier code.
Installment payment of filing fees may be permitted by the court as provided by Fed. R. Bankr. P. 1006(b)(1). The Clerk of the Bankruptcy Court shall not accept checks issued by debtors for filing fees. If a check given by an attorney for the debtor(s)' filing fee is not honored by the drawee bank, the Clerk shall promptly so advise a bankruptcy judge.
Petitions, schedules and statements of affairs and lists of creditors shall conform to the Official Bankruptcy Forms and be printed on one side of the paper only.
All original documents and pleadings filed with the court shall be 2-hole punched at the top and shall not be stapled. Copies may be stapled together for distribution.
Every petition must be accompanied by a matrix in a form prescribed by the Clerk and adopted by Standing Order of the court. Names and complete addresses of creditors must be listed in alphabetical order. The first and succeeding pages of the matrix must list on the reverse side of the page the name of the debtor(s).
(a) Creditors' Schedules. Creditors shall be listed alphabetically with the full address of each, including post office box or street number, city or town, state and zip code. If it is known that the account or debt has been assigned or is in the hands of an attorney or other agency for collection, the full name and address of such assignee or agent shall be set forth, but without twice extending the dollar amount of the debt. Each entry required by this subsection shall be separated by two spaces from the next succeeding entry. If the United States is listed as a creditor, the agency shall be noticed as provided by Standing Order 99-2.
(b) Schedule of Current Income and Expenditures of Individual Debtors. On the schedules of current income and current expenditures of individual debtors, spousal income and expenditures must be completed in all cases filed by joint debtors and by a married debtor in Chapter 7, 11, 12, or 13 cases, whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.
(c) Copies. Unless otherwise ordered by the court, the combined number of the executed original and conformed copies of initiatory petitions and accompanying statements, lists and schedules shall be:
Original and four copies in cases under Chapter 12;
Original and three copies in cases under Chapters 7 and 13; Original and five copies in cases under Chapters 9 and 11.
(d) Assembly of Petition and Accompanying Papers.
(1) Voluntary petitions and accompanying papers shall be assembled in the following order:
Voluntary Petition (including certified copy of
corporate resolution in corporate cases)
Signature Page
Statement of Financial Affairs
Declaration Under Penalty of Perjury on Behalf of a Corporation or Partnership (if applicable)
Exhibit A (if debtor is a corporation filing under Chapter 11)
List of Creditors Holding 20 Largest Unsecured Claims (to be used in Chapter 11)
Schedules A through J
Summary of Schedules
Declaration Concerning Debtor's Schedules
Chapter 7 Individual Debtor's Statement of
Intention
Rule 2016(b) Statement of Attorney Compensation
(2) The following documents must not be stapled to the Petition:
Application to Pay Filing Fees in Installments (if applicable)
Matrix
Matrix Verification
Plan (if submitted when petition is filed in
Chapters 11, 12 and 13)
(a) Caption Sheet. All amendments to a voluntary petition, list, schedule or statement shall accord with Fed. R. Bankr. P. 1009 and also must contain a caption sheet titled "AMENDMENT TO (name petition, statement, list, schedule or statement being amended)."
(b) Content of Amendments. Amendments to the list of creditors shall include information pertaining only to the amended creditors.
(c) Noticing of Amendments. In addition to the requirements of Fed. R. Bankr. P. 1009, the Clerk or such party as the court orders shall forthwith mail to any creditor added by the amendment a copy of the initial notice of the ß341 meeting, together with a statement advising that such mailing is the result of an amendment to the list of creditors and setting forth the date of the filing of such amendment.
(d) Signature of Debtor(s). All amendments must be signed and verified by the debtor(s) in the same manner required for originals.
(e) Additional Filing Fees. Any amendment to Schedules or lists of creditors must be accompanied by the applicable filing fee as prescribed by the Administrative Office of the United States Courts as of the date of the filing of the amendment.
(f) Supplement to the Mailing Matrix. If an amendment contains an additional creditor(s), the debtor must submit a supplemental mailing matrix listing only the additional creditor(s), in the same manner required by D. Kan. LBR 1007(a).1.
A case trustee appointed in a case filed under a chapter of Title 11 that is converted to another chapter of Title 11 in which a trustee is appointed shall furnish to the successor trustee a copy of the debtor(s)' petition, schedules and statement of affairs, filed claims, stay relief pleadings and any other documents in the trustee's file necessary to efficient case administration.
The United States Bankruptcy Court for the District of Kansas shall be in continuous session for transaction of judicial business on all business days throughout the year at the Kansas City, Topeka and Wichita Divisions. The court may conduct special sessions of court at other places within the district.
(a) Initial Assignment of Cases. Cases shall be assigned by the Clerk to the Kansas City, Wichita and Topeka divisions, respectively, based on where the commencement filing is made.
(b) Reassignment of Cases. A bankruptcy judge, in the interest of justice or to further the efficient disposition of court business, may return a case in whole or in part to the Clerk for reassignment to another bankruptcy judge as directed by the Chief Bankruptcy Judge.
(c) Judicial Business. Administration of the judicial business of the court is the responsibility of the Chief Bankruptcy Judge.
(a) Petitions. The petition of a corporation shall not be combined with the petition of any individual or other entity.
(b) Court appearances. See D. Kan. LBR 9010.1.
Notices served by the clerk will generally be mailed by the Bankruptcy Noticing Center ("BNC"). A matrix which does not comply with the requirements of D.Kan. LBR 1007(a).1 and any applicable Standing Order may cause certain notices to be undeliverable by the BNC. The clerk, or some other person as the court may direct, will notify the debtor's attorney, or the debtor if not represented, of any undelivered notices, together with the underlying matrix deficiency (e.g. incomplete address, missing zip code). Within five (5) days after such notification, the debtor's attorney, or the debtor if not represented, must: (1) file a corrected matrix; (2) serve any undelivered notice(s) to all parties not served by the BNC; and (3) file a certificate of service as to the same.
(a) Trustee/Debtor-in-Possession's Application to Employ Attorney to Conduct Chapter 11 Case. [Fn1] Under Bankruptcy Code ß 327 a trustee/debtor-in-possession may employ attorneys to conduct the Chapter 11 case. To do so, the trustee/debtor-in-possession must file with the petition an application to employ attorneys to conduct the case. The application must include the following information for the firm and for each individual attorney who will appear before the court in the conduct of the case:
(1) the attorney's name, address;
(2) specific facts showing the necessity for the employment;
(3) the reasons for the selection;
(4) the professional services to be rendered; and
(5) any proposed arrangement for compensation.
The application must be accompanied by the statement of compensation paid or agreed to be paid required by ß 329---Official Form B203, Disclosure of Compensation of Attorney for Debtor.
(1) Accompanying Affidavit. The application to employ attorneys to conduct the case must be accompanied by an affidavit signed by each individual attorney who will appear before the court in the conduct of the case, stating:
(A) that the attorney is disinterested;
(C) a description of the inquiry made to determine that the attorneys who will appear before the court in the conduct of the case and all the members of the firm do not hold or represent an adverse interest to the estate and are disinterested persons;
(D) the firm's and the attorney's connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States Trustee, or any person employed in the office of the United States Trustee;
(E) the attorney understands that there is a continuing duty to disclose any adverse interest and change in disinterestedness; and
(F) the attorney understands that the court's approval of the application is not approval of any proposed terms of compensation and under ß 328(a) the court may allow compensation on terms different from those proposed.
(2) Service. The application and attorney affidavits must be served forthwith upon the United States Trustee, all creditors holding secured claims, all parties requesting notice, any operating creditors' committee, or if none, upon the List of Creditors Holding 20 Largest Unsecured Claims--Official Form 4.
(3) Notice and Certificate of Service. The application must be accompanied by a Notice with Opportunity for Non-Evidentiary Hearing or Notice with Objection Deadline in accordance with the noticing guidelines applicable to the division and judge to whom the case is assigned and must contain a certificate evidencing service of the application, the affidavits, and the notice upon the required parties.
(4) Objections. Interested parties must object to the application within 20 days. If no objections to the application are timely filed, the court may forthwith approve the attorney's employment to represent the trustee/debtor-in-possession.
(5) Proposed Order Approving Employment. The trustee/debtor-in-possession must submit with the application a proposed Order Approving Employment in accordance with the noticing guidelines for submission of orders applicable to the division and judge to whom the case is assigned. The proposed order must acknowledge that (1) the court's approval of an application in which a professional states an intention to be compensated at a specific hourly rate shall not constitute approval of the hourly rate or other terms of compensation, and (2) approval of the terms of compensation will be considered by the court when a final allowance of compensation is made.
(b) Trustee's or Committee's Application to Employ Professionals other than attorneys to represent the trustee/debtor-in-possession in conducting a Chapter 11 case. Trustees or committees applying to employ firms of professionals or individual professionals (whether special counsel, accountants, appraisers, or otherwise) must also follow the application, service, notice and certification of service, objection, and proposed order procedures set forth in subsection (a). Each individual professional (whether or not an attorney) seeking employment must file an affidavit containing the information required by subsection (a)(1). However, when Chapter 7 trustees who are also attorneys apply for appointment of themselves or their firms as counsel for the estate, they may restrict notice to United States Trustee only.
[FN1] 11 U.S.C. 327(e) recognizes the distinction between counsel employed "to represent the trustee in conducting the case" and other employed attorneys. This heading highlights this critical difference and sets out the mandatory steps for qualifying as counsel employed to represent the trustee in conducting the case.
Trustees shall comply with all administrative reporting requirements of the United States Trustee, including the types of reports to be filed, the contents of those reports, and the timing of filing the reports.
(a) Submission and Service. In a Chapter 11 or 12 case, a professional employed or seeking employment pursuant to ß 327 may file a motion to be paid fees and expenses on a monthly basis. The motion must state the filing date of the application to employ and, if applicable, the date an order granting the application to employ was entered of record. Unless the court directs otherwise, the motion must be served on the debtor, debtor's counsel, the U.S. Trustee, all creditors holding secured claims, all parties requesting notice, any operating creditors' committee, or if none, upon the List of Creditors Holding 20 Largest Unsecured Claims--Official Form 4. The motion must be served with notice as provided by the noticing guidelines applicable to the division and judge to whom the case is assigned. A proposed order must be submitted in accordance with the court's guidelines for submission of orders. Any proposed order must state that the allowance of monthly payments of fees and expenses shall not constitute an interim or final approval of the fees and expenses.
(b) Provisions for Payment of Fees and Expenses. The motion must state the percentage amount of fees and expenses the professional seeks to collect on a monthly basis. The motion may request that up to 100% of the fees and 100% of the expenses be paid on a monthly basis. However, the motion and the proposed order granting the motion must provide that in the event 100% of the fees are paid, the professional will hold no less than 20% of the fees in trust pending approval by the court of an interim or final fee application, unless otherwise ordered by the court.
(a) Admission of Attorneys. The bar of this court shall consist of those attorneys heretofore admitted to practice and in current good standing as members of the bar of the United States District Court for the District of Kansas and in addition those attorneys hereafter admitted to practice before said district court or this court in accordance with D. Kan. Rules 83.5.1, 83.5.2, 83.5.3 and 83.5.4.
(b) Appearance Pro Hac Vice. D. Kan. Rule 83.5.4 shall apply to the attorneys of the court.
D. Kan. Rules 83.5.4 through 83.6.12 shall apply to the attorneys of the court.
(a) Copies of Claims/Service. All proofs of claim shall be filed in duplicate. Claimants filing proofs of claim in cases under Chapters 11, 12 and 13 shall send a copy of the proof of claim to debtor's counsel, or if not represented to the debtor, at the time of filing.
(b) Withdrawal of Written Instruments Filed with Claims. Written instruments or other papers filed with a proof of claim may be withdrawn upon request of the claimant provided such request is accompanied by photostatic or other exact copies of the papers to be withdrawn. If such papers are negotiable instruments, the originals shall be stamped with a statement indicating they were filed in support of a claim and showing the name, case number and the date of filing of the claim.
(c) Secured and Unsecured Claims. All proofs of claim filed shall indicate whether the claim is secured, unsecured, or if both, shall specify the respective amounts claimed to be secured and unsecured. The claim may include proposed amounts for secured and unsecured claims. Such a claim shall clearly indicate that it includes a proposed amount.
(d) Amendment to Claim in Chapter 7. In a Chapter 7 case, proofs of claim, other than priority claims, may be amended anytime prior to notice of final distribution by the case trustee, but not thereafter. Priority claims may be filed or amended at any time before the trustee commences distribution. If the case trustee has not objected to secured claims, such trustee shall give twenty (20) days notice to all parties who have filed secured claims of the case trustee's intent to file and serve a notice of final distribution.
(e) Filing of Requests for Administrative Expenses in a Chapter 7 Case. All requests for payments of administrative expenses must be filed prior to the notice of final distribution by the case trustee.
A Chapter 13 Plan filed with the petition will be served, (together with notice of the time for filing objections and the hearing to consider confirmation) by the Bankruptcy Noticing Center ("BNC"). Plans filed after the petition must be served (together with notice of the time for objections and the hearing to consider confirmation) by the debtor's attorney, or the debtor if not represented. A certificate of service of the same must be filed within five (5) days of service. Failure to file a plan, together with a certificate of service, prior to the first scheduled meeting of creditors pursuant to ß341 shall result in dismissal of the case for unnecessary delay without further notice to the debtor or counsel unless an extension has been obtained.
(a) Within three (3) months after the order of confirmation has been entered the plan proponent shall file an application for a final decree, or show cause why the final decree cannot be entered. If an application is not filed within three (3) months, a status report must be filed every six (6) months thereafter until the entry of the final decree. The application for final decree must show that the estate has been fully administered and must include information concerning (1) the date the order confirming the plan became final, (2) whether deposits required by the plan have been distributed, (3) whether the property proposed by the plan to be transferred has been transferred, (4) whether the debtor or successor of the debtor under the plan has assumed the business or the management of the property dealt with by the plan, (5) whether payments under the plan have commenced, (6) whether all motions, contested matters and adversary proceedings have been finally resolved, and (7) other facts as may be necessary to enable the court to pass on the provisions to be included in the final decree. The application must also provide a summary of professional fees awarded in the case, the percent to be paid to unsecured creditors and state whether or not all fees have been paid that are due under 28 U.S.C. ß 1930.
(b) The application for a final decree must be noticed by the applicant to all parties that have requested notice in the case, the United States Trustee and to all committees formed in the case or if a committee was not formed then to the 20 largest unsecured creditors. The applicant must give 30 days notice to the above stated parties as required by the noticing guidelines provided by the clerk of the court.
A motion for stay relief may be combined with a request for adequate protection. The inclusion in the motion of a request for any other relief or the setting of such motion pursuant to D.Kan. LBR 9013.2 for a docket more than thirty (30) days from filing of the motion shall constitute a waiver of the thirty (30) day requirement of 11 U.S.C. ß362(e). Any hearing on a motion for relief from stay appearing on the motions docket within such thirty (30) days shall be considered a preliminary hearing and movant's failure to request that the final hearing be concluded within thirty (30) days thereafter shall constitute a similar waiver.
COMMENT: This section was amended in 1995 to provide that the movant's setting of a motion for stay relief, pursuant to D.Kan.LBR 9013.2 for a docket more than thirty (30) days from the filing of the motion constitutes a voluntary waiver of the thirty (30) day requirement for a hearing contained in 11 U.S.C. ß362(e). Any hearing so set shall be considered a preliminary hearing under such section. Further, the failure to request that the final hearing be concluded within thirty (30) days of the preliminary hearing constitutes a waiver of that requirement of ß362(e).
The following procedure furthers public policy and prevents hardship to children of debtors.
(a) INCOME WITHHOLDING ORDERS FOR CURRENT CHILD SUPPORT. In cases filed under Chapters 12 and 13 of the Bankruptcy Code, 11 U.S.C. ß1201, et seq., and ß1301, et seq., the stay imposed by 11 U.S.C. ß362(a) will be annulled as it pertains to current child support orders being enforced on the date of the filing of the bankruptcy petition by income withholding orders, whether imposed or voluntary, unless the debtor files along with the petition a motion pursuant to paragraph (c) below.
(b) INCOME WITHHOLDING ORDERS FOR PAST-DUE CHILD SUPPORT. In cases under chapters 12 and 13, the stay will remain in force as it pertains to past-due child support being enforced through an income withholding order, whether imposed or voluntary, on the condition that the debtor's plan specifically addresses the debtor's obligation to pay past-due child support and treats it in the plan.
(c) TERMINATION OF INCOME WITHHOLDING ORDERS. If the debtor wants to terminate an income withholding order which is enforcing a current child support obligation, he or she must file a proper motion with the Bankruptcy Court. The motion must set out specific grounds justifying the termination of the withholding order and the continued application of the automatic stay. Should the motion be denied, the prevailing party may be awarded reasonable costs, fees, and expenses incurred in opposing the motion, as authorized by applicable rule or statute.
(d) Nothing in this rule shall affect the obligation of a debtor to pay child support not being collected by an income withholding order.
(a) Compliance with Trustee's Request. All debtors, whether in Chapter 7, 9, 11, 12 or 13 shall comply promptly with a request for information made by a case or standing trustee or the United States trustee. No later than fifteen (15) days after service of any written request, a debtor shall:
(1) serve on the trustee an appropriately executed writing containing the information requested; or
(2) serve on the trustee and file with the court a written objection stating the grounds therefore, a copy of the request, and a request for a hearing.
(b) Filing of Requests and Responses. The Trustee shall not file copies of the requests with the court unless the debtor(s) fails to comply with this rule and the trustee requests the court to compel compliance. The debtor(s) shall not file copies of responses with the court unless such responses are in the form of an amendment to the statements of affairs, schedules, monthly financial statements or the debtor(s) is otherwise required to do so.
In all cases filed under or converted to Chapter 13, the debtor(s) must bring to the First Meeting of Creditors called pursuant to Section 341, copies of the most recent two years of Federal and State income tax returns and current pay stubs or other evidence of current income for the period of time from 30 days prior to filing of the case to the date upon which the First Meeting of Creditors is held.
(a) Duty to file returns. In all cases, debtors must file tax returns for all pre-petition period, except income tax returns the due date of which is more than three years prior to the date of the petition in bankruptcy, within seventy-five days of the date of filing the petition in bankruptcy or by the due date of the return if later.
(b) Place of filing.
(1) The original of all federal tax returns filed as required by section (a) of this Rule and all post-petition federal returns coming due prior to confirmation of any plan must be filed with the Internal Revenue Service, Special Procedures Branch, 271 W 3rd Street N, Suite 3000, STOP 5020 WIC, Wichita, Kansas 67202. A signed copy of each return must be sent to the United States Attorney's Office located in the city where the bankruptcy case is filed.
(2) Except as required by paragraph (b)(3) of this Rule, the original of all state of Kansas tax returns filed as required by section (a) of this Rule and all post-petition state of Kansas tax returns coming due prior to confirmation of any plan must be filed with Kansas Department of Revenue, Civil Tax Enforcement, P 0 Box 12005, Topeka KS 66612-2005.
(3) The original of all state of Kansas unemployment tax returns filed by a Kansas employer, as required by paragraph (a) of this Rule, and all post-petition state of Kansas unemployment tax returns coming due prior to confirmation of any plan must be filed with Kansas Department of Human Resources, ATTN: Delinquent Account Unit, 401 Topeka Blvd., Topeka, KS 66603-3182.
(c) Dismissal for Non-Filing. If any pre-petition return remains unfiled after expiration of the seventy-five day period or the due date, the taxing authority may file a Notice of Non-Filing of Tax Returns with Objection Deadline and serve copies on the Trustee and the debtor's attorney. The Notice must specify the deadline for the filing of objections to dismissal and state the date and time the matter will be heard by the court. If no objection is filed, or if the court determines dismissal is warranted after hearing as provided for in section (d) below, the court will dismiss the case without prejudice unless the court determines that the circumstances warrant dismissal with prejudice
(d) Hearing on Objection to Dismissal. The debtor or Trustee may, within fifteen calendar days of the filing of the Notice of Non-Filing of Tax Returns, file and serve a written objection to dismissal of the case upon the taxing authority and the U.S. Attorney's Office located in the city where the bankruptcy case is filed if the tax return at issue is a federal tax and the Kansas Department of Revenue if the tax return at issue is a Kansas State return. The objection must state good cause as to why the case should not be dismissed and, if filed by the debtor, good cause why the past due returns have not been timely filed. In the event an Objection to Dismissal is timely filed by the debtor or Trustee, the matter will be heard by the court at the date and time set forth in the Notice of Non-Filing of Tax Returns With Objection Deadline required by section (c) above.
A motion to avoid a judicial lien or a nonpossessory, nonpurchase money security interest against exempt property pursuant to Bankruptcy Code ß522(f) in a case under Chapter 7 shall be filed not later than 60 days from the first date set for the meeting of creditors called pursuant to ß341 of the Code, or if the exemption is allowed after said 60 day period, the motion shall be filed not later than 30 days from the date the exemption is allowed. Except for cause shown, a motion filed thereafter shall be deemed untimely. This rule shall not affect the application of Bankruptcy Code ß521 in consumer cases.
(a) Proof of Insurance. Proof of insurance against physical damage and loss for any motor vehicle belonging to or leased by the debtor or the estate which is subject to the lien of a creditor holding an allowed secured claim must be furnished to the trustee and the creditor at or before the Bankruptcy Code ß341 meeting or upon written demand as hereinafter provided. Failure to immediately furnish proof of insurance shall be presumed to mean no insurance is in effect. "Motor vehicle" shall include, but is not limited to, any automobile, motorized mobile home or house trailer designed for travel on the public highways and/or capable of travel on the public highways. "Proof of insurance" shall mean a certificate of insurance, or such other written evidence of sufficient reliability from the insurance carrier stating that insurance is in force, the amounts and types of coverage, a notation of the secured party as a loss payee, and the time period for which such coverage exists. Any written "binder" shall be followed by proof of permanent insurance.
(b) Termination of Insurance. If during the pendency of a case, insurance is canceled, not renewed, expires or lapses for any reason, on any motor vehicle subject to the provisions of this rule:
(1) A creditor with an allowed claim secured by the motor vehicle for which insurance has been terminated, as hereinbefore defined or has received notice of the insurer's intent to terminate insurance for any reason hereinbefore defined, shall notify, in writing, the debtor(s), the debtor(s)' attorney and the trustee of such termination, or notice of intent to terminate insurance. Service of such notice upon the debtor(s) and the debtor(s)' attorney shall be in the manner specified in Fed. R. Bankr. P. 7004(b)(9).
(2) The debtor(s) shall be enjoined from using the motor vehicle for which insurance has, in fact, been terminated as long as the motor vehicle remains uninsured.
(3) If the debtor(s) fails to provide proof of reinsurance to the creditor within five business days following delivery of the notice provided in subsection (b)(1) of this section, or fails to provide proof of re-issuance by the day before termination of any grace period granted by the insurer, if later, the debtor(s) shall surrender the motor vehicle to the creditor or the creditor may take possession of the motor vehicle securing its claim and hold the same pending presentation of proof of insurance by the debtor(s).
(4) Within five days after taking possession of a motor vehicle pursuant to subsection (3) of this section, the creditor shall file with the court a motion for relief from stay of 11 U.S.C. ß362.
(c) Subsequent Termination. In the event insurance on a motor vehicle subject to this Rule lapses twice during the pendency of a case, the court may, upon the filing of a motion in accordance with section (b)(4) hereof accompanied by an affidavit evidencing compliance by the creditor with the provisions of this Rule and evidencing the previous lapse of insurance coverage, grant the creditor relief, including relief from the stay of 11 U.S.C. ß362, without further hearing.
(a) Access. The public records of the court are available for examination in the office of the Clerk during normal business hours.
(b) Copies. The Clerk will make and furnish copies, as time permits, of official public court records upon request and upon payment of prescribed fees.
(c) Sealed or Impounded Records. Records or exhibits ordered sealed or impounded by the court are not classed as public records within the meaning of this rule.
(d) Search for Cases by the Clerk. The office of the Clerk of this court is authorized to make a search of the most recent ten years of the master index maintained in the office, and to issue a certificate of such search. The Clerk shall charge a fee as prescribed by the Administrative Office of the United States Courts in advance for each name for which a search is conducted.
(a) Case files. A bankruptcy case file may not be withdrawn.
(b) Exhibits. Exhibits introduced into evidence may be withdrawn from the custody of the Clerk with permission of the Clerk or upon order of the court. Any exhibit not withdrawn after final disposition of the proceeding may be destroyed or otherwise disposed of by the Clerk.
(a) Addressing the Court. Attorneys or pro se litigants shall rise when addressing the court, and shall make all statements to the court from the counsel table or the lectern facing the court. They shall not approach the bench, except upon the permission of the court.
(b) Questioning Witnesses. While questioning witnesses, attorneys or pro se litigants shall stand at the counsel table or at the lectern. They shall not approach the witness except with the court's permission. Only one attorney for each party may participate in the examination or cross examination of a witness.
(a) General. Parties may transmit briefs, lists of witnesses, exhibits and motions for extension of time by facsimile, but only in an emergency, and only if the judge to which the case or adversary proceeding has been assigned has granted permission prior to transmission. No other pleadings, documents or requests for relief may be transmitted and filed by facsimile.
(b) Original documents, filing. Within forty-eight hours of the initial transmission of a document by facsimile, the original documents, with all necessary signatures must be physically delivered to the Clerk of the Bankruptcy Court. When the rules require the filing of multiple copies of a document, only one copy must be transmitted by fax. Additional copies must be delivered at the time the original document is tendered for filing. Upon receipt of the original documents, they must be filed by the Clerk as of the date of receipt of the facsimile transmission.
(c) Method of facsimile transmission. All facsimile transmissions must be on the highest resolution mode in order to transmit a clear copy to the court and any other party. The document transmitted shall be sent in reverse page order so that the item emerges in correct page order.
At the same time a document is transmitted by facsimile to the court, the sender must transmit it by facsimile on all other parties in the case. Any period which runs from the date of transmission must be calculated as if the document were hand-delivered. If a party to whom a document is to be sent does not have a facsimile machine, the party responsible for service must arrange for physical delivery of the document not later than the next calendar day following the initial facsimile transmission to the court.
(d) Signatures. The originals of all facsimile transmissions must be signed by the party or attorney transmitting the same. Any signature on a facsimile document will be subject to Fed. R. Civ. P. 11 and Fed. R. Bankr. P. 7011 and 9011.
(e) Risk of transmission errors. The party transmitting a document by facsimile assumes the risk of nonreceipt or the receipt of an unintelligible copy.
(f) General policy on facsimile transmission. The United States Bankruptcy Court for the District of Kansas recognizes that facsimile transmission may greatly facilitate the transmission of documents between and among parties to pending cases. However, since many lawyers and individuals do not possess facsimile machines and there are substantial questions concerning the accuracy, timeliness and authenticity of facsimile transmissions, the court will authorize use of facsimile transmission for nondispositive pleadings only for good cause shown.
(a) Orders. The Clerk of the Bankruptcy Court is authorized to grant the following orders without further direction by the court:
(1) In adversary proceedings, orders extending once for ten days, the time within which to answer, reply or otherwise plead to a complaint, cross-claim or counterclaim if the time originally prescribed to plead has not expired;
(2) Orders for the payment of money on consent of all parties interested therein;
(3) Consent orders for the substitution of attorneys;
(4) In adversary proceedings, consent orders dismissing an action, except in cases governed by Fed. R. Bankr. P. 7023 and/or D.Kan. LBR 7041.1;
(5) In adversary proceedings, entry of default and judgment by default as provided for in F. R. Bankr. P. 7055;
(6) Any other orders that are specified by Standing Order as not requiring special direction by the court.
Any order submitted to the Clerk of the Bankruptcy Court under this rule shall be signed by the party or attorney submitting it, and shall be subject to the provisions of Fed. R. Bankr. P. 9011 and D. Kan. LBR 9011.3. Any order submitted to the Clerk for an extension of time under paragraph A shall state: (1) the date when the time for the act sought to be extended is due, (2) the date to which the time for the act is to be extended, and (3) that the time originally prescribed has not expired.
(b) Action Reviewable. Any order entered by the Clerk of the Bankruptcy Court under this rule may be suspended, altered or rescinded pursuant to Fed. R. Bankr. P. 9024.
(a) General. A bankruptcy judge, the Clerk of the bankruptcy court, currently on active services and their employees and spouses shall not directly or indirectly purchase property from any bankruptcy estate. No former bankruptcy judge, Clerk of the bankruptcy court and no former member of their staffs may purchase property directly or indirectly from any bankruptcy estate pending at the time such person left office.
(b) Current service. No person who is currently serving as trustee, examiner, appraiser, auctioneer, accountant, realtor or attorney for a bankruptcy estate, their employees and spouses and the spouses of their employees shall directly or indirectly purchase property from any bankruptcy estate pending while such person is serving.
(c) Pending cases. No person who has served as a trustee, examiner, auctioneer, accountant, realtor or attorney for a bankruptcy estate and no spouse or employee of such persons shall purchase directly or indirectly property from a bankruptcy estate pending at the time such person ceased service.
Within sixty (60) days from the date set for the ß341 meeting of creditors, the Trustee may file notice of intended abandonment of any or all of the debtor's non-exempt property of the estate pursuant to 11 U.S.C. ß554 without service on creditors except as noticed in case commencement; and unless a creditor objects to such abandonment within seventy-five (75) days from the ß341 meeting date, such property shall be deemed abandoned without further notice or order of the Court.
A motion to redeem exempt property in a case under Chapter 7 pursuant to Bankruptcy Code ß722 shall be filed not later than 60 days from the first date set for the meeting of creditors called pursuant to ß341 of the Code, but if the trustee recovers exempt property that debtor is entitled to exempt, the motion shall be filed not later than 15 days after the property is deemed exempt. Except for cause shown, a motion filed thereafter shall be deemed untimely. This rule shall not affect the application of Bankruptcy Code ß521 in consumer cases.
A motion to redeem abandoned property in a case under Chapter 7 pursuant to Bankruptcy Code ß722 shall be filed not later than 60 days from the first date set for the meeting of creditors called pursuant to ß341 of the Code, but if the trustee has not abandoned the property within that time, the motion shall be filed not later than 15 days after abandonment. Except for cause shown, a motion filed thereafter shall be deemed untimely. This rule shall not affect the application of Bankruptcy Code ß521 in consumer cases.
(a) Cover Sheet. An Adversary Proceeding Cover Sheet, in a form supplied by the Clerk, must be completed and submitted with each complaint commencing an adversary proceeding; the provisions of Fed. R. Bankr. P. 7003 apply.
(b) Case Number System. Each adversary proceeding when filed shall be assigned a number by the Clerk which shall begin with a two-digit indicator of the year in which the proceeding was filed followed by a hyphen and the individualized case number of four digits. The four-digit individualized case numbers shall be as follows: Wichita proceedings shall begin with a "5" (e.g., 99-5001); Kansas City proceedings shall begin with a "6" (e.g., 99-6001); and Topeka proceedings shall begin with a "7" or an "8" (e.g., 99-7001).