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New Federal Bankruptcy Rules Taking Effect 12/1/2017: Looking Ahead

Posted By USFN, Monday, November 6, 2017
Updated: Friday, October 20, 2017

November 6, 2017

by Jason A. Weber
Sirote & Permutt, PC
USFN Member (Alabama)

Finally, after several years of debate, major changes have been approved that will have a profound impact on consumer bankruptcy cases. On April 27, 2017, the Supreme Court of the United States, through Chief Justice Roberts, submitted amendments to the Federal Rules of Bankruptcy Procedure to Congress. The amendments set forth extensive changes pertaining to forms and the filing of claims. The proposed changes will take effect December 1, 2017 and will significantly change how creditors should approach consumer bankruptcy cases (Chapters 7, 12, and 13) and will require crucial adjustments to conform to the shortened timelines for creditors to take action, particularly in Chapter 13 cases. The most noteworthy changes are discussed below.

Rule 2002: Notice to Creditors — The amendments to this Rule now require that creditors are to be provided at least 21 days’ notice of the time fixed for filing an objection to confirmation of a Chapter 13 plan and be provided at least 28 days’ notice of the confirmation hearing in a Chapter 13 case. Neither of these notice provisions existed prior to the rule change, and each provides creditors with advance notice for the date of the scheduled confirmation hearing and the deadline for filing an objection.

Rule 3002: Filing of Proofs of Claim — The amendments to this Rule may have the biggest impact on creditors, largely due to the shortened deadlines for filing claims and the requirement that all creditors — including secured creditors — must file proofs of claim within 70 days of the filing date of a Chapter 7, 12, or 13 case (or within 70 days of the date of conversion to a Chapter 12 or 13) in order for the claim to be deemed allowed. The new Rule does add a provision that allows a creditor the opportunity for an extension of time of up to 60 days to file a proof of claim (POC) upon motion and order if the creditor can establish that it did not have a reasonable time to file a POC because the debtor failed to timely file the list of creditors and addresses, or because the notice was mailed to the creditor at a foreign address. Additionally, the Rule does clarify that a lien securing a claim is not void should the creditor fail to file a POC.

Moreover, the new Rule adds a two-stage deadline for filing proofs of claim secured by a security interest in the debtor’s principal residence. These claims must be filed with the Official Form 410, the Attachment (Official Form 410A), and an escrow account statement no later than 70 days of the petition filing date (or conversion date). Also, in order to be timely, all other loan documents evidencing the claim [e.g., the note (allonge), mortgage, assignment of mortgage] must be filed as supplements to the POC within 120 days of the filing date (or conversion date). For such a claim to be timely, both of these deadlines must be met.

The new 70/120-day time period is significantly shortened compared to the pre-12/1/2017 rules that permit a claim to be timely if it is filed within 90 days after the Section 341 meeting of creditors date, which, in practice, permits claims to be filed within an approximate 120-day to 140-day time period from the petition filing date or conversion date.

Rule 3007: Objection to Claims — This Rule requires at least 30 days’ notice to creditors of an objection to claim. The objection may be filed on “negative notice” and provides for service via first-class mail to the name and address most recently designated on the creditors’ original or amended POC, or in accordance with Rule 7004 for federally insured depository institutions. This is significant because it clarifies that Rule 7004 no longer applies to the service of most claim objections with the exception of insured depository institutions. Instead, service can be accomplished by first-class mail, meaning creditors must be cognizant of the name and address listed on their proofs of claim and may no longer rely on raising Rule 7004 as a defense to a claim objection.

Rule 3012: Determining the Amount of Secured Claims — This Rule sets forth numerous ways for the court to determine the amount of secured claims, including by motion, claim objection, or Chapter 12 or 13 plan. Most importantly, the new Rule, in combination with amended Rule 3015 (see below), provides that any determination made in a plan formed under 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, and regardless of whether an objection to the claim has been filed. This is a significant change to the prior rules, particularly for creditors in Florida and similarly situated districts, which (effective 12/1/2017) will require creditors to file objections to confirmation of Chapter 12 and Chapter 13 plans, or be bound by the plan terms upon confirmation.

Rule 3015: Filing of Plan, Effect of Confirmation of Plan — Model Chapter 13 Plan — This Rule requires the use of an Official Form Model Chapter 13 Plan unless a Local Form is adopted and is in compliance with Rule 3015.1. For example, the Southern District of Florida has recently announced that it will “opt out” and adopt a Local Form and has solicited public comment prior to its implementation in December. It would not be a surprise to see many districts across the country announce similar opt-out plans enabling them to marry the content and notice provisions required under the Model Plan with the local customs and language incorporated into the Local Form. The Model Chapter 13 Plan is intended to streamline the plan review process for creditors. The new Rule also requires an objection to plan confirmation to be filed at least seven days before the confirmation hearing. As noted above, the proposed changes further provide that a determination of value or “valuation” of a secured claim done through the plan will become effective and binding upon confirmation despite the absence of a claim objection or a contrary POC.

Closing Words — Once again, these Rules will become effective December 1, 2017 and apply to all Chapter 7, 12, and 13 cases filed after that date, as well as all pending cases “insofar as just and practicable” — meaning they will likely apply to almost all consumer bankruptcy cases. Accordingly, it is important that creditors take immediate measures to ensure compliance under these Rules. Although the shortened deadlines and increased attention to plan treatment might be burdensome in some respects, the above rule changes may well provide some assistance to creditors by establishing predictable proof of claim deadlines, consistent plan content, and clear notice and objection deadlines across all districts — which should enable creditors to more efficiently process consumer bankruptcy cases.

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