Type: Client Alerts
Business and Consumer Cases
The following amendments to the Federal Rules of Bankruptcy Procedure apply generally to business and consumer bankruptcy cases:
Administration of the Bankruptcy Rules
Amended Rule 1001 has been amended to provide that the Federal Rules of Bankruptcy Procedures are to be “administered” and “employed by the court and the parties” to secure the just, speedy, and inexpensive determination of every case and proceeding. The amendment emphasizes the importance of prompt administration of bankruptcy cases. [The prior version of Rule 1001 simply required that the Rules be “construed” to secure such just, speedy, and inexpensive determinations.]
Alterations to Official Forms
Amended Rule 9009(a) more strongly requires the use of Official Forms without alteration, except when another Bankruptcy Rule, the Official Form itself, or the national instructions accompanying such a form, permit alteration. Minor alterations, such as to expand or delete spaces, are permitted.
Proof of Claim Bar Date
Secured Claims: Amended Rule 3002(a) provides that a secured creditor is now required to file a proof of claim for chapter 7, 12 and 13 cases to have an allowed secured claim and be eligible to receive distributions from the estate. Failing to file a proof of claim, alone, will not cause the voiding of the security interest or lien. [Note that, in chapter 11 cases, some courts have held that confirmation does void or extinguish a secured claim for which a proof of claim has not been filed.]
Bar Date: Amended Rule 3002(b) provides that the deadline for filing proofs of claim has been shortened in chapter 7, 12 and 13 cases, and the deadline is no longer determined with reference to the date first set for the meeting of creditors. Now, a proof of claim in a voluntary chapter 7 case must be filed no later than 70 days after the petition date. In an involuntary chapter 7 case, a proof of claim must be filed no later than 90 days after the entry of the order for relief. [The prior version of Rule 3002 established the 90th day after the “first date set for the meeting of creditors” as the bar date.]
Extension of Bar Dates: Amended Rule 3002(c)(6) now authorizes the court, on motion filed before or after the deadline expires, to extend the time for filing a proof of claim in chapter 7, 12 and 13 cases for not more than 60 days following entry of an order granting such motion, where (a) notice was insufficient because the debtor did not timely file its list of creditors, or (b) notice was mailed to a foreign address and was insufficient under the circumstances. [The former version of Rule 3002(c)(6) permitted an extension for 60 days where notice to a foreign creditor was insufficient.]
Chapter 11: Note that there is no amendment to the establishment of bar dates in chapter 11 cases under Rule 3003(c)(3).
Service: Amended Rule 3007(a) has been revised to clarify that Rule 7004 (which provides for service of complaints and, pursuant to Rule 9014, motions in contested matters) does not apply to the service of most claim objections. Instead, a claimant must be served by first-class mail addressed to the person whom the claimant most recently designated on its proof of claim to receive notices. Rule 7004’s service requirements will apply where the claimant is the United States, its officers or agencies, or an insured depository institution.
Hearing? Amended Rule 3007(a) no longer requires a hearing on every claim objection. Amended Rule 3007 now permits courts to require a claimant to timely request a hearing or file a response in order to obtain a hearing. The Committee Note, however, makes clear that the court will still need to determine if the claim is valid, even if the claimant does not file a response or request a hearing.
Priority: Amended Rule 3012 now permits a court to determine, by motion after a claim is filed or in an objection, the amount of a claim entitled to priority (in addition to the amount of a secured claim). The priority (or amount) of the governmental unit’s secured claim, however, can only be determined by motion or in a claim objection after the governmental unit has either filed a proof of claim, or the time for doing so has expired.
The following amendments to the Federal Rules of Bankruptcy Procedure apply to consumer bankruptcy cases:
Official Form Chapter 13 Plan
Official Form or Local Form: Official Form 113 is a new form chapter 13 plan. Amended Rule 3015 provides that the Official Form chapter 13 plan must be used unless a local form has been adopted in compliance with new Rule 3015.1, which includes certain requirements for local forms, such as an initial paragraph indicating whether the plan contains any nonstandard provisions, limits a secured claim based on a valuation of the collateral, or whether the plan voids any security interest or lien. The debtor’s attorney (or an unrepresented debtor) must certify that the local plan contains no nonstandard provision other than those set forth in the initial paragraph. Certain claims must be treated in separate paragraphs of the plan.
Nonstandard Provisions: Amended Rule 3015(c) provides that “nonstandard provisions” are effective only if included in the appropriate designated section of the form, and are identified in accordance with the requirements of the Official Form or compliant local form chapter 13 plan. “Nonstandard provisions” are provisions not included in the Official Form or the local form chapter 13, or that deviate from it. Rules 3015 and 3015.1 should streamline creditor’s review of chapter 13 plans and enable creditors to more easily locate the debtor’s proposed treatment of their claims and any nonstandard plan provisions.
Proof of Claim Requirements for Claims Secured by the Debtor’s Principal Residence
Bar Date: As indicated above, Amended Rule 3002(c) provides that in voluntary cases under chapter 7, 12 or 13, a proof of claim is timely filed if it is filed not later than 70 days after the petition date. However, new Rule 3002(c)(7) provides that a proof of claim filed by the holder of a claim that is secured by a consensual lien (such as a mortgage) on the debtor’s principal residence is timely filed if:
- the proof of claim (Official Form 410), together with the proof of claim attachment (Official Form 401A) and escrow analysis (if applicable) required under Rule 3001(c)(2)((C), is filed no later than 70 days after the petition date (or the order for relief in an involuntary case);1 and
- any attachments required by Rule 3001(c)(1) and (d) – such as the note (with any endorsement or allonge), mortgage or deed of trust, and relevant assignments or supporting documents – are filed as a supplement to the holder’s claim no later than 120 days after the petition date (or the order for relief in an involuntary case).
Plan Objection and Confirmation Hearing Deadlines
Notice of Chapter 13 Plan Confirmation Hearing: Amended Rule 2002(b) provides that the clerk, or some other person as the clerk may direct, shall give at least 28 days’ notice by mail of the hearing on confirmation of a chapter 13 plan.
Notice of Deadline to Objection to Confirmation of Chapter 13 Plan. New Rule 2002(a)(9) provides that the clerk, or some other person as the clerk may direct, shall give at least 21 days’ notice by mail of the deadline to object to confirmation of a chapter 13 plan. Amended Rule 3015(f) also provides that an objection to confirmation of a plan shall be filed and served at least seven days before the date set for the hearing on confirmation, unless the court orders otherwise. These rules provide a degree of uniformity and predictability across districts with respect to the timing of key events in the chapter 13 plan confirmation process.
Determining the Amount of Secured and Priority Claims
Determination of Secured Claim in Chapter 12 or 13 Plan: As discussed above, Amended Rule 3012 provides that courts may determine the amount of a secured claim by motion, claim objection, or under a chapter 12 or 13 plan. Amended Rule 3015(g) provides that a determination in plan under Amended Rule 3012 regarding the amount of a secured claim is binding on the holder of the claim, even if the holder files a contrary proof of claim or the debtor schedules that claim, and regardless of whether an objection to the claim has been filed. The confirmed plan will trump the proof of claim and the schedules. Thus, secured creditors must carefully review a debtor’s plan to determine whether an objection is necessary. Note that the secured amount of a governmental entity’s proof of claim cannot be determined under a plan.
Motion to Satisfy Secured Claim and Release Lien: New Rule 5009(d) provides that a debtor may file a motion to have a secured claim declared satisfied and the lien released.
Avoiding Liens on Exempt Property in Chapter 12 or 13 Plan
Avoiding Liens on Exempt Property: Amended Rule 4003(d) provides that a chapter 12 or 13 plan may avoid a lien that impairs the debtor’s exemption property. The debtor must serve the affected creditor in the same manner that it would serve a summons and complaint.
Termination of Stay: A chapter 12 or 13 plan may provide for the termination of the automatic stay (see new Rule 3015(g)(2)).
Applicability of Amendments to Pending Cases?
The amendments apply to bankruptcy cases filed on or after December 1, 2017. In addition, the amendments may apply in bankruptcy cases filed prior to December 1, 2017.
By an Order dated April 24, 2017, the United States Supreme Court approved the above-referenced amendments to the Bankruptcy Rules. The Order provides that the amendments “shall take effect on December 1, 2017, and shall govern in all proceedings in bankruptcy cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” See Order at ¶ 2.
“Of course, the mere fact that a new rule is procedural does not mean that it applies to every pending case. A new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime, and the promulgation of a new rule of evidence would not require an appellate remand for a new trial. Our orders approving amendments to federal procedural rules reflect the commonsense notion that the applicability of such provisions ordinarily depends on the posture of the particular case.” Landgraf v. USI Film Products, 511 U.S. 244, 275 n.29 (1994).
“‘Courts generally apply amendments to procedural rules retroactively to the maximum extent possible’ if the proceeding at issue was ‘then pending’ when the amendments took effect and if applying the amendment would be ‘just and practicable.’” In re Crutchfield, 492 B.R. 60, 68 (Bankr. M.D. Ga. 2013) (quoting Michel v. U.S., 519 F.3d 1267, 1271 (11th Cir. 2008)).
In re Berardi, Case No. 12-35856/JHW, 2013 WL 6096227, at *3 (Bankr. D.N.J. Nov. 20, 2013) (applying revised Rule 3001 and Official Form where “[a]pplying Rule 3001 as amended promotes the goals of an efficient claims allowance process that minimizes economic burdens on the creditor without in any way limiting the debtor’s ability to challenge a claim”) (internal quotation marks omitted).
In re Brunson, 486 B.R. 759, 771 (Bankr. N.D. Tex. 2013) (applying amended version of Rule 3001 where “none of these ‘new’ provisions are really new at all”).
In re Reynolds, No. 11-30984 HRT, 2012 WL 3133489, at *4 (Bankr. D. Colo. July 31, 2012 (stating that “[b]ecause a claim objection is a discrete matter within the bankruptcy case, the fact that the rule was revised after the bankruptcy case itself was filed does not present retroactivity concerns where the objection ... was filed after the effective date of the revised rule”).
- Note that the bar date for a claim secured by a debtor’s principal residence is 70 days after the entry of an order for relief in an involuntary case, even though other creditors have 90 days after the order for relief to file their claims. Compare Fed. R. Bankr. P. 3002(c) and (c)(7).
Client Alert 2017-291