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New Amendments to the Federal Rules of Bankruptcy Procedure Effective Today December 1, 2012

Several new changes to the Federal Rules of Bankruptcy Procedure will become effective today, December 1, 2012.  These rule changes include amendments to: Rules 1007 (deadlines for debtor schedules), 2015 (Trustee records), 3001 (proof of claim for consumer credit), 7054 (response times for requests for costs), and 7056 (summary judgment deadlines).

Rule 1007(c)—Deadlines for filing Debtor’s Schedules

The amended Rule 1007(c) clarifies the timeframe for filing the debtor’s schedules, statements, and other documents, except for the list of creditors in Rule 1007(a)(2), for an involuntary bankruptcy case. In a voluntary case, Rule 1007(c) requires that the debtor’s statements, schedules, and other documents be filed with the petition or within fourteen days of the petition.  This technical amendment to Rule 1007 removes the inconsistency that previously existed between Rule 1007(a)(2), which required that the list of creditors in an involuntary case be filed within seven days after the entry of the order for relief, and Rule 1007(c), which required the involuntary debtor to file the same list of creditors within fourteen days of the entry of the order for relief.

Rule 2015—Required Trustee Reports

Rule 2015 clarifies and corrects the statutory reference to the records and reports that must be kept and filed by the trustee or debtor in possession. The amendments to Rule 2015(a)(3) require that the trustee or debtor in possession file the reports and summaries required by section 704(a)(8) of the Code, which “shall include a statement, if payments are made to employees, of the amounts of deductions for all taxes required to be withheld or paid for and in behalf of employees and the place where these amounts are deposited…” This amendment corrects a clerical error resulting from the enactment of the 2005 amendments, which split 11 U.S.C. section 704 into subsections. Accordingly, the amendment makes clear that the reference in Rule 2015 to section 704 should reference post-BAPCPA section 704(a)(8) as opposed to the pre-2005 section 704(8).

Rule 3001—Proof of Claim for Consumer Credit Agreements

Significant changes were made in 2011 affecting the proof of claim process for mortgage holders. Additional amendments for open-end or revolving consumer credit agreements become effective December 2.  When the claim is based upon a writing, the amendments to Rule 3001(c)(1) exempt holders of open-end or revolving consumer credit agreements from filing a copy of the writing on which the claim is based with the proof of claim. However, if a party in interest requests a copy of the writing, the holder of the claim must provide the writing within 30 days of the request. This deadline may be extended under Rule 9006 for cause.

Even it the underlying writing upon which the claim is based will no longer be required in connection with the filing of a proof of claim for these holders, Rule 3001(3)(A) provides certain additional requirements for claims based on an open-end or revolving consumer credit agreement, except when the agreement is secured by the debtor’s principal residence. These additional requirements are that each proof of claim must include:

  1. the name of the entity from whom the creditor purchased the account;
  2. the name of the entity to whom the debt was owed at the time of an account holder’s last transaction on the account;
  3. the date of an account holder’s last transaction;
  4. the date of the last payment on the account; and
  5. the date on which the account was charged to profit or loss. Rule 3001(3)(A).

This additional information required under the amendments to Rule 3001(3)(A) will assist the debtor with identification of the particular account upon which the claim is based and ascertaining the timeliness of the claim.

Note that to the extent a claim filed by the holder of an open-end or revolving consumer credit agreement complies with Rule 3001(a), (b), (c)(1), (c)(2), (c)(3)(A), and (e), the holder’s claim will be prima facie evidence of the validity of the claim despite the fact that the writing upon which the claim is based may not have been received or requested by a party in interest. Holders of open-end or revolving consumer credit agreements also expose themselves to sanctions for failure to comply with the new amendments.

Rule 7054—Time to Respond to Request for Costs

Rule 7054 was also amended to modify the timeframe in an adversary proceedings which a party may respond to a prevailing party’s requests for costs in a case, in addition to the time frame in which a party may seek court review of the costs taxed by a clerk. Amended Rule 7054 changes the time for a party to respond to a prevailing party’s request for costs from one day to fourteen days, and extends the time frame to seek court review of the costs taxed from five days to seven days. The amended Rule will conform the existing Rule with the time frames under the Federal Rules of Civil Procedure, Rule 54 and the 2009 time-computation amendments.

The revised 2013 Federal Rules of Bankruptcy Procedure will appear in the 2013 edition of Argyle’s Consumer Bankruptcy Handbook.

Rule 7056—Deadlines for Summary Judgment in Adversary Proceedings

Finally, Rule 7056 was revised to require that a motion for summary judgment in an adversary proceeding must be filed at least thirty days before the initial date scheduled for an evidentiary hearing on any issue upon which summary judgment is sought. This amendment is designed to make similar the procedure that is followed in both bankruptcy and federal civil procedure. In 2010, Civil Rule 56 was amended to mandate that a motion for summary judgment be filed within 30 days from the close of discovery. Due to the more expedited process often imposed in bankruptcy adversary cases, and because evidentiary hearings are often frequently scheduled shortly after the close of discovery in an adversary case, amended Rule 7056 connects the timing for filing a motion for summary judgment to the first scheduled evidentiary hearing date, as opposed to the close of discovery. This amendment will allow the bankruptcy courts to rule on summary judgment prior to an evidentiary hearing scheduled on the same issues, which will be more economical for the parties and the court.

The amended rules, along with the 2013 Federal Bankruptcy Code, will appear in Argyle’s 2013 Attorney’s Handbook on Consumer Bankruptcy, available for preorder here for $59.

For more information see the U.S. Courts website.