The Advisory Committee on Bankruptcy Rules met in the
Thurgood Marshall Federal Judiciary Building in Washington, D.C.,
December 8-9, 1994. The following members were present:
Bankruptcy Judge Paul Mannes, Chairman
District Judge Adrian G. Duplantier
District Judge Eduardo C. Robreno
Honorable Jane A. Restani, United States Court
of International Trade
Bankruptcy Judge Donald E. Cordova
Bankruptcy Judge Robert J. Kressel
Bankruptcy Judge James W. Meyers
R. Neal Batson, Esquire
Kenneth N. Klee, Esquire
J. Christopher Kohn, Esquire, United States
Department of Justice
Leonard M. Rosen, Esquire
Gerald K. Smith, Esquire
Henry J. Sommer, Esquire
Professor Charles J. Tabb
Professor Alan N. Resnick, Reporter
Circuit Judge Alice M. Batchelder was unable to attend. Joseph
Patchan, Director Designee, represented the Executive Office for
United States Trustees.
The following representatives of the Committee on Rules of
Practice and Procedure also attended:
District Judge Alicemarie H. Stotler, Chair
District Judge Thomas S. Ellis, III, liaison to the Advisory Committee
Peter G. McCabe, Assistant Director, Administrative Office of the United States Courts, Secretary
The following additional persons attended all or part of the
meeting: Perry Apelbaum, counsel, House Subcommittee on Economic
and Commercial Law; James G. Whiddon, counsel, Senate
Subcommittee on Courts and Administrative Practice; Richard G.
Heltzel, Clerk, United States Bankruptcy Court for the Eastern
District of California; Mark Van Allsburg, Clerk, United States
Bankruptcy Court for the Western District of Michigan; Francis F.
Szczebak, Patricia S. Channon, James H. Wannamaker, and John D.
Howard, Bankruptcy Judges Division, Administrative Office of the
United States Courts; Mary Louise Mitterhoff, Bankruptcy Court
Administration Division, Administrative Office of the United
States Courts; John K. Rabiej, Joseph F. Spaniol, Jr., Mark D.
Shapiro, and Judith W. Krivit, Rules Committee Support Office,
Administrative Office of the United States Courts; Elizabeth C.
Wiggins, Federal Judicial Center; and several members of the
The following summary of matters discussed at the meeting
should be read in conjunction with the various memoranda and
other written materials referred to, all of which are on file in
the office of the Secretary to the Committee on Rules of Practice
and Procedure. Unless otherwise indicated, all memoranda
referred to were included in the agenda book for the meeting.
Votes and other action taken by the Advisory Committee and
assignments by the Chairman appear in bold.
The Chairman introduced Bankruptcy Judges Cordova and
Kressel, new members of the Committee, and Mr. Patchan, who has
been designated to head the Executive Office for United States
Trustees. (Mr. Patchan was a bankruptcy judge from 1969 to 1975
and a member of the Committee from 1969 to 1991.) The Chairman
also welcomed to the meeting Judge Stotler, Judge Ellis, Mr.
Apelbaum, and Mr. Whiddon.
The Chairman said he called the special meeting for the
purpose of considering what immediate action is required as to
the Federal Rules of Bankruptcy Procedure and the Official
Bankruptcy Forms as a result of the enactment of the Bankruptcy
Reform Act of 1994.
The Reporter stated that two provisions in the Reform Act
affect the Bankruptcy Rules but do not require action by the
committee. First, 28 U.S.C. § 2075 has been amended to make
amendments to the Bankruptcy Rules effective on December 1 of the
year in which they are promulgated by the Supreme Court. Second,
Rule 7004 was amended to require, with certain exceptions,
service by certified mail on insured depository institutions.
The Reporter suggested that, in view of the time required
for completing the rules amendment process, the Committee
consider proposing "suggested interim rules" for adoption as
local court rules pending the promulgation of amendments to the
Bankruptcy Rules. The same process was used when chapter 12 was
added to the Bankruptcy Code in 1986. A motion to request that
the Standing Committee on Rules of Practice and Procedure
expedite the consideration and approval of the amendments
required by the Reform Act failed for lack of a second. Mr.
Rosen said the experience gained from using interim rules might
assist in the formation of permanent rules. The consensus of the
Committee was to propose interim rules and to complete the full
rules amendment process for permanent rules.
Notices to Creditors. The Reporter stated that section 225
of the Reform Act amended section 342 of the Bankruptcy Code to
provide that notices required to be given by a debtor to
creditors must contain the name, address, and taxpayer
identification number of the debtor, although failure to do so
does not invalidate the notice. The Reporter discussed three
alternative responses to the statutory change: 1) do nothing and
let the statute speak for itself; 2) amend rule 2002(n) only to
the extent required by section 342(c); or 3) amend Rule 1005 to
require the information specified in section 342(c) in the
caption of every notice, regardless of who gives the notice.
Mr. Klee outlined the history of the provision, which he
said was prompted by creditors' desires to identify debtors in
their databases more readily. Because it was argued that
requiring the use of account numbers would be too burdensome,
creditors agreed to the use of the debtor's name, address, and
taxpayer identification number. Mr. Klee said the reference to
invalidity of the notice was included in response to a court
decision that a debt was not discharged because two digits in the
debtor's Social Security were transposed in a notice. The
amendment was restricted to notices by debtors because they have
the necessary information. Mr. Klee said notices given by
bankruptcy clerks were not considered.
Professor Tabb moved to accept the Reporter's draft
amendment for the second alternative as set out in his memorandum
of November 7, 1994. Several committee members questioned the
need for putting the debtor's address in every caption.
Professor Tabb agreed to a request to delete the phrase "The
caption of" from the Reporter's draft. Mr. Sommer said the
easiest place to put section 342(c) information is in the
caption. The Reporter said including the information in the
caption would recognize the legislative history, which stated
that Congress intended for the caption of every bankruptcy notice
to include the information. Professor Tabb returned to his
original motion, without the deletion. The motion to approve the
original text of the Reporter's draft amendment carried by a vote
Election of Chapter 11 Trustee. The Reporter stated that
section 211 of the Reform Act amended section 1104 of the
Bankruptcy Code to permit creditors to elect a disinterested
person to serve as trustee in a chapter 11 case if a timely
request is made for an election. The Reporter said he assumed
that the person elected must be approved by the court as
"disinterested" and that the U.S. trustee should apply for the
approval with full disclosure of the person's connections.
Further, the Reporter said he believed the U.S. trustee should
appoint a trustee under section 1104(d) (after consultation) as
soon as practicable after the court orders the appointment of a
chapter 11 trustee and that this trustee will serve unless and
until another person is elected under new section 1104(b).
Accordingly, the Reporter offered draft amendments to Rules
2007.1 and 2002(a).
The Committee discussed whether an elected trustee is
subject to appointment by the U.S. trustee and court approval
under section 1104(d). Several members said the U.S. trustee
should not be required to appoint an elected trustee which the
U.S. trustee believes is unqualified. Other members said the
appointment is automatic but the U.S. trustee should inform the
court of any factors (positive or negative) relative to the
appointment. Mr. Klee noted that the debtor's exclusive right to
file a plan and several other chapter 11 provisions are tied to
the appointment of a trustee, not to the election of a trustee.
Mr. Rosen said a court order approving the trustee is
particularly important because millions of dollars may be turned
over to a chapter 11 trustee. The Committee agreed by a straw
vote that the person elected should be appointed by the U.S.
trustee and approved by the court.
Judge Restani moved to approve the draft revision of Rule
2007.1 in the Reporter's memorandum of November 7, 1994, with the
addition of the words "approval of" after the word "for" in lines
24 and 28. The motion carried on a vote of 9-2. Mr. Sommer
moved to require notice of the request for election. The
Reporter said this is unnecessary because creditors will get
notice of the meeting of creditors (called for the election)
within a few days. The motion failed. The Committee agreed by
consensus to delete the brackets and retain the bracketed
language in section (b)(1) of the Reporter's draft. Mr. Klee
moved to insert the phrase "appoint the person elected to be
trustee" after the word promptly in line 28. Mr. Smith said that
if the Committee believes the U.S. trustee must appoint the
person elected, then the rule should say so. The motion carried
with one dissenting vote.
Mr. Klee moved to amend line 27 by inserting the phrase "or,
for cause shown, any party in interest," after the word
"trustee". The Reporter stated that, under the current rule,
only the U.S. trustee can apply for court approval of an
appointment of a chapter 11 trustee, but, if the U.S. trustee
fails to act, a party could seek redress under Rule 2020. The
Committee agreed that the U.S. trustee should make the
application. Judge Restani said the word "only" in line 43 was
too strong. After a discussion of whether the word created a
inference that Rule 2020 was inapplicable, the Committee voted
unanimously to delete "only." A motion to insert the phrase
"approved in accordance with" after the word "and" in line 37 was
The Committee approved the draft amendment to Rule 2002(a)
in the Reporter's memorandum of November 7, 1994, by consensus.
Filing Proofs of Claim. Section 213(a) of the Reform Act
amended section 502(b)(9) of the Bankruptcy Code to specify that
claims filed by governmental units are timely if they are filed
within 180 days after the order for relief. The Reporter stated
that the statutory change made the proposed amendment to Rule
3002(d), which has been published for comment by the bench, bar,
and public, unnecessary.
The Committee discussed whether the 180-day limit was
intended to apply to just chapter 7 cases or to cases in all
chapters. Mr. Klee said the understanding in the proponents'
negotiations with Congress was that the amendment would apply to
all chapters. The Reporter stated that he prepared the draft
amendment to Rule 3002 set out in his memorandum of November 7,
1994, on that assumption although the time for filing by
governmental units could be fixed by the rule as long as it did
not conflict with the statute.
Mr. Klee stated that all governmental units should be
treated the same way in order to avoid discriminating against
foreign governments. A motion to delete the phrase "of the
United States, a state, or a subdivision thereof" from lines 17-18 of the Reporter's draft and to substitute "of a governmental
unit made" carried unanimously.
Mr. Sommer moved to add the following language: "If the
claim is tardily filed, the party filing the claim shall serve
copies on the trustee and the debtor." He said chapter 13
trustees should be served so that they do not have to constantly
check the claims dockets in thousands of cases which may remain
pending for several years. Several Committee members questioned
whether checking the dockets is an unreasonable burden. The
Committee discussed whether the amendment should include
sanctions for not serving the trustee and whether it is proper
for the rules to impose such sanctions. Professor Tabb's motion
to table the matter until the next Committee meeting carried
without dissent. Professor Tabb's motion to approve the
remaining changes in Rule 3002 was passed unanimously.
Small Business Cases. Section 217 of the Reform Act amended
the Bankruptcy Code by adding a new definition of "small
business" and making special provisions for chapter 11 cases in
which the debtor is a small business. The Reporter presented
drafts of a new Rule 1020, Election to be Considered a Small
Business in a Chapter 11 Reorganization Case, and amendments to
Judge Kressel suggested that all parties should receive
notice if the court orders that no creditors' committee be
appointed under section 1102(a)(3) in a small business case. Mr.
Batson stated that the statute did not require notice and that
new Rule 1020 should not do so, either. His motion not to
require the notice carried without dissent.
The Committee discussed the form and timing of the debtor's
election to be considered as a small business and the potential
for abuse if the debtor made the election shortly before the 160-day deadline for any party to file a plan. The Reporter said he
used a 100-day deadline for the election in his draft because
that coincides with the end of a small business debtor's
The Reporter stated that his draft would permit, but not
require, the debtor to make the election on the petition. Mr.
Kohn stated that making the election on the petition would allow
the parties to proceed in a more informed manner and would avoid
any mischief in the timing of the election. The Reporter said
the debtor and its counsel might be unaware of the possibility of
making the election at the time of filing but that the judge
could raise it at a status conference. Mr. Klee asked why the
Reporter had not drafted a rule for chapter 11 status
conferences. The Reporter stated that the statute was detailed
and that no rule appeared to be needed.
Judge Restani moved to approve the Reporter's draft Rule
1020 after substituting "60 days" for "100 days" in line 4,
substituting "a later" for "another" in line 5, and adding "for
good cause shown" to the end of line 6. The motion carried with
one dissenting vote. Mr. Klee proposed adding the following:
"For cause shown, the court may allow the debtor to withdraw the
election." His motion failed by a vote of 4-8.
Judge Kressel said the amendment to Rule 3017 should
preserve the court's right to disapprove a conditionally-approved
disclosure statement, even if no party objects. The Reporter
agreed. A motion to delete the last sentence of the draft
carried with one dissenting vote. Judge Duplantier suggested a
separate Rule 3017.1 for small business cases. The Committee
agreed in a straw vote.
Mr. Klee suggested deleting the word "unimpaired" on line 45
of the Reporter's draft or adding a reference to a convenience
class of claims under section 1122(b) of the Bankruptcy Code.
The Reporter said deleting the requirement for sending copies of
the plan and disclosure statement to unimpaired classes was very
controversial and indicated that not sending the documents to
some impaired creditors would be more controversial. The
Committee discussed whether a plan proponent can go directly to
cramdown for a class when the debtor is insolvent. Professor
Tabb's motion to table the matter until the March meeting passed
with one dissenting vote.
Mr. Smith asked whether the Reporter referred to the
debtor's "application" for conditional approval of the disclosure
statement in line 109 in order to avoid the requirement of
notice. The Reporter stated that he used "application" in an
effort to be consistent with Rule 9013 and the streamlined
process used for matters such as "first day" orders. Judge
Duplantier asked why he did not refer to "ex parte motions" as in
civil practice before the district court.
In response to a question about the use of "application" in
the bankruptcy rules, Mr. Patchan said the drafters of the 1983
rules tried to restrict use of the word to administrative matters
in an effort to be as consistent as possible with civil practice.
He said the drafters avoided use of the phrase "ex parte"
whenever possible because of its bad connotation in past
bankruptcy practice and the policy against ex parte meetings.
The Reporter said he could substitute "ex parte motion" for
the word "application" in the draft but that the change could
lead to confusion until the Committee considers the use of
"application" throughout the bankruptcy rules. A motion to make
the substitution in the draft and require notice pursuant to Rule
9013 failed for lack of a second. Mr. Batson said requiring
notice would defeat the goal of "fast tracking" small business
cases. Judge Robreno said the rule should acknowledge that
Congress permitted an ex parte process.
Judge Kressel moved to delete the phrase ", on application
of the plan proponent," from line 109. The Chairman ruled the
motion out of order. In response to a question about a deadline
for a secured creditor's section 1111(b) election in a small
business case, the Reporter agreed to add a reference to Rule
3014 to the Committee Note. He said the creditor could not make
the election by the time of the conditional approval of the
disclosure statement because the creditor would not get a copy of
the plan until later. The Committee agreed that the Reporter
would include the substance of his draft Rule 3017(f) in a
separate small business rule.
Appeals. The Reporter recommended that the Committee
consider amending subsections (a), (b), and (e) of Rule 8001 to
conform to the Reform Act's provisions for appeals as a matter of
right from exclusivity orders and for the creation of Bankruptcy
Appellate Panel (BAP) Services. The Reform Act reversed the
statutory presumption that bankruptcy appeals will go to the
district court and provided that, if a BAP is available in the
district, bankruptcy appeals will go to it unless one of the
parties elects to go to the district court.
The Reporter said it seems logical for the appellant to make
the election in the Notice of Appeal. Judge Meyers stated,
however, that the Notice of Appeals printed by some publishers
contain references to the district court which could be viewed as
an election -- albeit inadvertent -- to take the appeal to the
district court. He said requiring that the election be made in a
separate writing would avoid the potential problem. Judge
Restani moved to approve the Reporter's draft revision to Rule
8001 after deleting the bracketed language on lines 38-40. The
motion carried on a vote of 12-0.
After discussing whether Rule 8007 should be amended to
provide in more detail for the transmittal of the record on
appeal, the Committee agreed that the circuits could handle the
matter or leave it to the bankruptcy clerks to resolve.
Jury Trials. The Reporter stated that former Rule 9015 was
abrogated in 1987 to avoid any inference that the rule conferred
a right to a jury trial in a bankruptcy case. Since then, the
Supreme Court held in Granfinanciera, S.A. v. Norberg that a
person who has not filed a proof of claim in the bankruptcy case
is entitled to a jury trial under the Seventh Amendment in
certain proceedings, such as fraudulent conveyances or preference
actions. Further, the Reform Act provides that a bankruptcy
judge may conduct a jury trial if specially designated by the
district court to do so and if the parties expressly consent.
The Reporter presented a draft of a new Rule 9015 and an
alternative which included issues arising in involuntary
petitions and specified that the bankruptcy judge may determine
whether there is a right to a jury trial when one is demanded.
The Committee discussed whether the district court should give
the bankruptcy judges a blanket designation to conduct jury
trials or do so on a case-by-case basis and whether the
bankruptcy judge may determine whether there is a right to a jury
Judge Duplantier said there was no need for a separate,
detailed bankruptcy rule on jury trials. He said the bankruptcy
rule could state that when a right to a jury trial exists, the
following civil rules apply: Civil Rule 38, part of Rule 39, and
Rules 47-51. Consent to the bankruptcy judge's conducting the
jury trial could be patterned on the procedure in Civil Rule
73(b) for the parties' filing a joint consent to a jury trial
before a magistrate judge. Mr. Sommer said incorporating the
civil rules to the maximum extent possible would permit use of
the extensive body of case law developed under those rules.
Judge Meyers said a bankruptcy rule is needed on the form
and timing of the demand for a jury trial. The Chairman stated
that a bankruptcy rule is needed because the Civil Rule 81(a)
provides that the Civil Rules do not apply to proceedings in
bankruptcy unless specifically incorporated. The Reporter agreed
to present another draft of a rule on jury trials.
Applicability of Rules in Alabama and North Carolina. Rule
9035 provides that the bankruptcy rules apply to cases in Alabama
and North Carolina only to the extent that the rules are not
inconsistent with the provisions of title 11 and title 28
effective in the case. The Reporter stated that the Reform Act
contained provisions relating to bankruptcy administrators in
those two states which will not be codified in either title 11 or
title 28. For that reason he recommended amending Rule 9035 to
apply the rules to the extent that they are not inconsistent with
any federal statute effective in the case.
Mr. Klee questioned whether the amendment would constitute a
substantive position on the constitutionality of the bankruptcy
administrator program. The Reporter said the amendment made a
change required by statute. The proposed amendment was approved
by an unanimous vote.
Mr. Klee presented the report from the Long Range Planning
Subcommittee. He distributed draft copies of two surveys
developed with the help of Elizabeth Wiggins of the Federal
Judicial Center to ascertain the views of the bankruptcy
community on the scope, format, and organization of the
Bankruptcy Rules. One version is to be mailed to a sample of
bankruptcy attorneys and the other is to be sent to bankruptcy
judges, bankruptcy clerks, U.S. trustees and their assistants,
chapter 7 trustees, and chapter 13 trustees.
At Judge Ellis' request, Mr. Klee agreed to send the survey
to chief district judges. At Mr. Kohn's suggestion, he agreed to
include references to the bankruptcy rules and forms. At Judge
Meyers' suggestion, Ms. Wiggins agreed to include questions on
the scope, format, and organization of local bankruptcy rules.
The two authors also agreed to send the survey to bankruptcy law
professors and to delete the phrase "In your opinion" from the
questions. The Committee voted to continue the project.
Mr. Sommer presented the amendments to the Official
Bankruptcy Forms approved by the Forms Subcommittee on December
7, 1994, and set out in the subcommittee's memorandum of December
Official Form 1. Voluntary Petition. The Committee
discussed the difference between being a small business and
electing to be considered one, and whether there should be a
check box for the election on the petition. A motion was
approved unanimously to have two "check box" lines on the
petition worded as follows:
[ ] Debtor is a small business as defined in 11 U.S.C. § 101.
[ ] Debtor is and elects to be considered a small business.
(11 U.S.C. § 1121) (Optional)
At Mr. Klee's request, the Committee agreed to substitute
the phrase "I have been authorized to file this petition on
behalf of the debtor" for the phrase "the filing of this petition
on behalf of the debtor has been authorized" in the first
sentence of the corporate or partnership debtor declaration on
page two. In order to make space for the Certification and
Signature by Non-Attorney Bankruptcy Petition Preparer, the
Committee agreed to move the reference to Exhibit "A" to the
corporate or partnership debtor declaration by adding the
following sentence: "If debtor is a corporation filing under
chapter 11, Exhibit "A" is attached and made part of this
In order to clarify a chapter 9 debtor's eligibility for relief, the Committee agreed, at Mr. Klee's request, to revise the Request for Relief on page two by inserting the phrase "is eligible for and" after the word "Debtor". The Committee also agreed to the following changes on page one of the Petition:
-- Move the Small Business section to the right-hand column on page one.
-- Insert the phrase "check one" after the phrases "TYPE OF
DEBTOR" and "NATURE OF DEBT" in the left-hand column on page one.
Official Form 19. Certification and Signature of Non-Attorney Bankruptcy Petition Preparer. The Committee discussed at some length the Certification and Signature and its completion by preparers. The Committee agreed to move the signature line and date to the bottom of the form. The Committee agreed to add the following warning below the signature: "A bankruptcy petition preparer's failure to comply with the provisions of title 11 and the Federal Rules of Bankruptcy Procedure may result
in fines or imprisonment or both. 11 U.S.C. § 110; 18 U.S.C.
Although the statute requires the disclosure of only the
Social Security numbers of other individuals who prepared or
assisted in preparing the document, the Committee agreed to
require the disclosure of their names as well. The Committee
agreed to add the phrase "of Bankruptcy Petition Preparer" under
the line for the preparer's printed or typed name and to move the
line above the preparer's Social Security number.
By acclamation, the Committee approved the Certification and
Signature, as revised, as a new Official Form 19 and as a block
on the second page of the Petition. The Committee also approved
the Petition as revised.
Official Form 3. Application and Order to Pay Filing Fee in
Installment. The Committee approved the addition of the
Certification and Signature of Non-Attorney Bankruptcy Petition
Preparer to the Application and Order.
Official Form 6. Schedules. The Subcommittee proposed a
number of amendments to Schedule E - Creditors Holding Unsecured
Priority Claims. In order to reduce the need for future changes
in the form, the Subcommittee recommended deleting the dollar
amount of priorities because the amounts are subject to
adjustment every three years under section 104 of the Bankruptcy
Code, as amended by the Reform Act. The Subcommittee suggested
deleting the references to subsections of section 507(a) of the
Bankruptcy Code because the subsections are renumbered frequently
In order to make it easier for debtors to complete the form
accurately, the Committee decided to retain the dollar amounts,
as amended by the Reform Act, in Schedule E but to include a
footnote as follows: "Amounts are subject to adjustment on April
1, 1998, and every three years thereafter with respect to cases
commenced on or after the date of adjustment." The Committee
deleted the reference to omitting dollar amounts from the
Committee Note. The Committee also decided to retain the
references to subsections of section 507(a). Including the
references will make it easier to complete the form and the
subsections usually are renumbered only when Congress adds a new
priority, which requires revising the form anyway. The Committee
agreed to add a reference to commissions owing to qualifying
independent sales representatives to Schedule E and a
Certification and Signature of Non-Attorney Bankruptcy Petition
Preparer at the end of Form 6. The Committee approved the
Schedules, as amended.
Official Form 7. Statement of Financial Affairs. Mr. Sommer
said the Subcommittee considered adding a question concerning
single asset real estate but decided not to do so because secured
creditors have other ways to determine the information. The only
change recommended by the Subcommittee was the addition of a
Certification and Signature of Non-Attorney Bankruptcy Petition
Preparer. Mr. Klee suggested that the cover sheet state that
municipalities need not complete the form. Ms. Channon said Rule
1007(b) clearly provides that chapter 9 debtors are not required
to prepare and file the statement. The Committee approved the
revised Statement of Financial Affairs as proposed by the
Official Form 8. Individual Debtor's Statement of Intention.
The only change recommended by the Subcommittee was the addition
of a Certification and Signature of Non-Attorney Bankruptcy
Petition Preparer. The Committee approved the revision.
Official Form 9. Notice of Commencement of Case under the
Bankruptcy Code, Meeting of Creditors, and Fixing of Dates. The
Committee approved the Subcommittee's recommendation to add
references to dischargeability actions under section 523(a)(15)
to Forms 9(A), 9(C), 9(E), 9(E)(Alt.), 9(G), and 9(H). The
Subcommittee recommended including separate deadlines for filing
claims for governmental units and all other creditors on Forms
9(C), 9(D), 9(E)(Alt.), 9(F)(Alt.), 9(G), 9(H), and 9(I). The
Committee agreed that the claims deadline box would read as
For all creditors (other than governmental units): For governmental units:
The Committee approved Official Form 9, as revised.
Official Form 10. Proof of Claim. The Committee agreed to
add the following footnote to the dollar amounts in the priority
section: "Amounts are subject to adjustment on 4/1/98 and every
three years thereafter with respect to cases commenced on or
after the date of adjustment." The Committee agreed to the
conforming changes recommended by the Subcommittee.
Official Form 16. Captions. The Subcommittee recommended:
-- Revising Form 16A to include the debtor's address in furtherance of the debtor's duty under section 342(c) of the Code to include this information in every notice given by the debtor;
-- Noting on Form 16B that it may be used if section 342(c) is not applicable;
-- Revising Form 16C for use as the caption of a complaint in an adversary proceeding filed by the debtor; and
-- Redesignating former Form 16C as Form 16D for use as a
caption in an adversary proceeding other than for a complaint
filed by the debtor. The Committee approved the four forms as
Form 17. Notice of Appeal. Mr. Sommer said the draft
Notice of Appeal approved by the Forms Subcommittee is consistent
with the Committee's vote to require a separate Statement of
Election. The Committee discussed whether the warning concerning
the appellant's election to proceed in the district court should
be included in the Notice of Appeal; if so, in what form; and
whether a similar warning should be included for the appellee.
The Committee agreed to move the warning below the appellant's
signature and revise it to read as follows: "If a Bankruptcy
Appellate Panel is authorized to hear this appeal, each party has
a right to have the appeal heard by the district court. The
appellant may exercise this right only by filing a separate
statement at the time of the filing of this notice of appeal."
The Committee approved the Notice of Appeal as revised.
Form 18. Discharge of Debtor. The Committee approved the
addition of a reference to dischargeability actions under section
The Committee approved conforming changes to the following
forms issued by the Director of the Administrative Office under
18J Discharge of Joint Debtors
18JO Discharge of Joint Debtor
242A Order Discharging Debtor After Completion of Chapter 13 Plan
200 Required Lists, Schedules, Statements and Fees
201 Notice to Individual Consumer Debtor
The Committee approved the following new Director's Forms:
280 Disclosure of Compensation of Bankruptcy Petition Preparer
13S Order and Notice with Respect to Conditionally Approving
Disclosure Statement and Plan in a Small Business Case
15S Order Finally Approving Disclosure Statement and Confirming Plan
281 Appearance of Child Support Creditor or Representative
After discussing the new Form 281, the Committee directed
the Chairman to write the chairman of the Committee on the
Administration of the Bankruptcy System to request that the
Bankruptcy Committee consider whether section 304(g) of the
Reform Act exempted child support creditors from payment of fees
for filing motions for relief from the automatic stay and
The Committee considered the interim rules drafted by the
Reporter as both suggested interim local rules and, with
appropriate stylistic changes, as proposed amendments to the
national Bankruptcy Rules. (These drafts were not contained in
the agenda materials.) The final draft of the proposed
amendments covered by the interim rules will not be submitted
until after the March 1995 meeting.
Interim Rule 1. Election of Trustee in Chapter 11
Reorganization Case. The Committee approved the interim rule as
presented by the Reporter.
Interim Rule 2. Small Business Chapter 11 Reorganization
Case. The Committee approved the interim rule as presented and
deleted the second paragraph of the draft Committee Note.
Interim Rule 3. Appeals to the District Court [or
Bankruptcy Appellate Panel]. The Committee concluded that, to
the extent a rule is needed, the districts and circuits can
develop their own. The Chairman will write the Ninth Circuit to
suggest that it adopt an interim rule.
Interim Rule 3. Jury Trials. The Reporter presented a
draft containing the alternative language he prepared that
morning in response to the Committee's request on the previous
day. Judge Kressel questioned the need for an interim rule on
jury trials. The Chairman said he has received requests for such
a rule from a number of bankruptcy judges.
The Reporter stated that, as requested by the Committee, he
attempted to incorporate by reference the Civil Rules as much as
possible. He also informed the Committee that Judge Stotler was
unable to attend the meeting on that day, but had given him
comments concerning his prior draft. The Reporter stated Judge
Stotler's concerns that his prior draft, which combined the form
and timing of the parties' consent into one provision, (and which
required filing a written statement of consent before a deadline
fixed by the court as the "only" method of giving consent),
possibly should be changed so that: (1) parties would not be
barred from making an oral stipulation on the record consenting
to have the bankruptcy judge conduct the jury trial, (the statute
does not require written consent), provided consent is given
before the time deadline, and (2) the court would have
flexibility to set the consent deadline by local rule (rather
than by court order in the particular case). This flexibility is
needed to enable the court to deal with logistics problems
related to jury trials.
In response to Judge Stotler's comments, the Committee
agreed to delete the word "only" from the consent subsection of
the Reporter's draft. The Committee also agreed to leave the
time period to local rule. The Reporter stated that leaving the
period to local rule would enable the local courts, if they so
desire, to provide by local rule that a judge may fix a different
date in a particular case.
After a discussion focusing on the Reporter's draft, the
Committee agreed to delete the separate paragraph on removed
actions, to delete a separate sentence on removed actions, and to
make several other stylistic changes. The Committee approved the
following text by unanimous vote:
(a) APPLICABILITY OF CERTAIN FEDERAL RULES OF CIVIL
PROCEDURE. Rules 38, 39, and 47-51 F.R.Civ.P., and Rule
81(c) F.R.Civ.P. as it applies to jury trials, apply in
cases and proceedings, except that a demand made under Rule
38(b) F.R.Civ.P. shall be filed in accordance with
Bankruptcy Rule 5005.
(b) CONSENT TO HAVE TRIAL CONDUCTED BY BANKRUPTCY
JUDGE. If the right to a jury trial applies, a timely
demand has been filed under Rule 38(b) F.R.Civ.P., and the
bankruptcy judge has been specially designated to conduct
the jury trial, the parties may consent to have a jury trial
conducted by a bankruptcy judge under 28 U.S.C. § 157(e) by
jointly or separately filing a statement of consent no later
than [insert period specified by local rule].
This rule provides procedures relating to jury trials.
The rule is not intended to expand or create any right to
trial by jury where such right does not otherwise exist.
Judge Ellis asked whether the Advisory Committee would issue the suggested interim rules immediately. The Reporter stated that the original plan was to do so but that, since the standing committee is meeting in four weeks, Judge Mannes and Judge Stotler had agreed that the interim rules would be referred to the Standing Committee with a request for that committee's concurrence. He said the interim rules would be accompanied by a cover letter from Judge Mannes which states that the interim
rules are provided for consideration for use as local rules
pending the adoption of national bankruptcy rules.
James H. Wannamaker, III