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How Do You Implement a Statute with no Rules? PowerPoint Presentation
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How Do You Implement a Statute with no Rules?

How Do You Implement a Statute with no Rules?

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How Do You Implement a Statute with no Rules?

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  1. How Do You Implement a Statute with no Rules?

  2. Final Interim Rules • The Final Interim Rules were approved by the Advisory Committee and the Committee on Rules of Practice and Procedure in August 2005.

  3. Standing Order Number 2(S.O. 2) • Adopts Interim Rules in their entirety without change • Adopts Forms – over 40 new forms • Makes changes to existing Local Rules (L.R.) • Adds Appendix E

  4. How Do You Implement the Fee Waiver Program?

  5. Changes to Part I: Commencement of Case. • Int.Rule 1006: Filing Fee • Fee Waivers: • A debtor can now request installment payments even if the debtor has already made payments to an attorney or another person in connection with the case. • Fee waiver in Chapter 7 case [see Standing Order 2] • Use Official Forms

  6. S.O. 2 /L. R. 5080-1 – Fee Waivers • A procedure is added to provide for filing and processing of an application for waiver of the filing fee in a chapter 7 case.

  7. How Do You Comply With the Pre-Filing Budget and Credit Counseling Requirements?

  8. Certification Concerning Debt Counseling by Individual/Joint Debtor(s) • I/we have received approved budget and credit counseling during the 180-day period preceding the filing of this petition. • I/we request a waiver of the requirement to obtain budget and credit counseling prior to filing based on exigent circumstances. (Must attach certification describing).

  9. Section 109(h) Cert. • File the Section 109(h) certification with the petition. • S.O. 2 /L.R. 1007-2. A debtor must . . . • (1) certify compliance with § 109(h)(1), • (2) request a waiver under § 109(h)(3)(A) on the petition and file a separate application and proposed order granting the waiver with the petition, or • (3) request a determination under § 109(h)(4) by separate pleading filed with the petition. • Or the clerk must enter an order of dismissal for failure to comply with § 109(h) at the time the petition is filed.

  10. Section 109(h) continued • Request for waiver under § 109(h)(3)(A). • Granted, denied, or set for hearing. • If the application is granted but the debtor fails to timely file a certification indicating compliance with § 109(h)(1), the clerk must enter an order of dismissal. • If the application for exemption is denied, the clerk must enter an order of dismissal. • If the court does not determine that § 109(h)(4) is applicable within 40 days of filing the petition, the clerk must enter an order of dismissal.

  11. If a Presumption of Abuse Arises, How Do You Communicate that Information to Interested Parties?

  12. Notice Regarding Presumption of Abuse • Int. Rule 5008 Notice Regarding Presumption of Abuse in Chapter 7 Cases of Individual Debtors (see also Int. Rule 2002(f)(9) & (10) • Clerk has the duty to notify creditors that a § 707 presumption of abuse has arisen within 10 days of the petition being filed. • If the debtor fails to file a statement regarding the presumption, the clerk must inform creditors of the deficiency within 10 days of the petition being filed.

  13. How Do You Provide Necessary Information to Trustees to Administer the Case, and to Interested Parties Including Domestic Support Creditors? What is the Sanction for Failure to Comply? How Do You Protect a Debtor’s Privacy?

  14. Changes to Part I • Int. Rule 1007 Lists, Schedules, Statements, and Other Documents; Time Limits • 15 days from DOP to file documents including payment advices and record of interest in § 521(c) account.

  15. NO Ex Parte Extensions • Any extension of time to file schedules, statement, and other documents, may be granted only on motion for cause shown and on notice to the USt, trustee, committee, or other party in interest.

  16. S.O. 2 /L. R. 1007-2: Lists, Schedules, Statements and Certifications. • Moved from L. R. 5005-1. • Separate matrix of domestic support creditors. • Changed provisions for dismissal as a result of automatic dismissal found in § 521(i).

  17. S.O. 2 /L. R. 5005-1 – Requirement to file copies Deleted • Requirement to provide extra copies has been deleted because parties in interest may now obtain copies of pleadings electronically and extra paper copies are unnecessary.

  18. Changes to Part IV – Debtors Duties and Benefits: • Int. Rule 4002(b) – Individual Debtor’s Duty to Provide Documentation • Debtor must bring the following to the § 341 meeting: • (1) picture identification issued by a governmental unit • (2) evidence of social security number • (3) evidence of current income (most recent payment advice) • (4) bank, investment, and other account statements • (5) evidence of monthly expenses as required by § 707(b).

  19. Int.Rule 4002(b) continued . . . • Seven days prior to § 341 meeting, the debtor must provide copies of most recent Federal tax return to the trustee. [Under Section 521(e)(2)(B) case dismissed for failure to comply.] • If a creditor requests a copy of the debtor’s most recent tax return 15 days prior to the first day set for the § 341 meeting, the debtor must provide a copy to the creditor seven days prior to § 341 meeting. • Any personal information should be redacted for privacy reasons. [See Director’s Guidelines]

  20. Director’s Interim Guidance Regarding Tax Information under 11 U.S.C. Section 521 • Copies of the Document are available on the web site. • “Request” must be filed with the court. • Returns may be electronically filed with the court, and, if properly submitted, will not be available to the public. • Procedure for requesting and obtaining access to tax information.

  21. S.O. 2 /L. R. 2003-1- Section 341 Meeting • Debtor must supply advices of payment and tax returns requested by the trustee or the USt. • Requests to supply tax returns referred to in this rule are not requests as referenced in § 521, do not require that the tax returns be filed with the court, and are not the kind of requests for which a discharge shall not be granted if the debtor fails to comply.

  22. How Do You Implement a Reorganization Debtor’s “Pre-Pack”?

  23. Changes to Part II – Admin., Notices, Meetings • Int. Rule 2003 Meeting of Creditors or Equity Security Holders • If the debtor has solicited acceptances to a plan before commencement of the case, the court, after notice and a hearing, may order that a meeting of creditors not be convened.

  24. How Do You Appoint an Elected Trustee, and How Do You Resolve a Disputed Election?

  25. Int. Rule 2007.1 Election of Trustee • Appointment of a disinterested person to serve as trustee in a Chapter 11 case occurs when the United States Trustee produces a report certifying the election. If there is a dispute, the court must resolve the dispute. • A verified statement of the applicant disclosing any conflicts must accompany the application.

  26. What is the Bar Date for a Tax Creditor to File Claims for Returns Filed During a Chapter 13 Case?

  27. Changes to Part III – Claims and Plans: • Int. Rule 3002(c)(1) Filing Proof of Claim or Interest • In a chapter 13 case, a claim for a tax obligations on a return filed under § 1308, [during the pendency of a chapter 13 case] shall be filed not later than 60 days after the date on which the return was filed.

  28. How Do You Protect Privacy if a Trustee Sells Personal Information?

  29. Changes to Part VI: Collection and Liquidation of the Estate • Int. Rule 6004(g) Use, Sale, or Lease of Property – Sale of Personally Identifiable Information • A motion for the sale or lease of personally identifiable information shall include a request for an order directing the USt to appoint a consumer privacy ombudsman. • No later than 5 days before the sale or use hearing, the USt shall file a report certifying the appointment and name and address of the person appointed. A report shall also include a ver. statement of the person appointed disclosing any connections with the debtor, creditors any other party in interest, attorneys, accountants and the USt.

  30. Int. Rule 2002(c) Content of Notice • A trustee leasing or selling personally identifiable information must include in the notice of lease or sale a statement as to whether the lease or sale is consistent with a policy prohibiting the transfer of the information.

  31. How Do You Ensure that Taxing Authorities Receive Notice?

  32. Changes to Part V: Courts and Clerks • Int. Rule 5003 Records Kept by the Clerk • Taxing authorities may designate an address for service of requests under § 505(b).

  33. How Do You Process Section 707(b) Actions?

  34. Int. Rule 1019 - Conversion of Chapter 11, Chapter 12, or Chapter 13 Case to Chapter 7 Liquidation Case • This rule makes new filing periods applicable to § 707(b) and (c ) motions when a case is converted to Chapter 7.

  35. Int. Rule 1017 - Dismissal or Conversion of Case for Abuse • A motion to dismiss under § 707(b)(1) and (3) shall state with particularity the circumstances alleged to constitute abuse.

  36. How Do You Implement Provisions to Prevent Abusive Exemptions?

  37. Changes to Part IV • Int. Rule 4003(b) Objecting to a Claim of Exemptions • Implements the requirements set forth in new § 522(q) which extends the time for objections to exemptions if the debtor has committed certain felonies.

  38. What Do You Do if the Discharge Date Comes and the Debtor has Not Complied with the Statute?

  39. Int. Rule 4004 Grant or Denial of Discharge • A Chapter 7 discharge shall be granted unless one of the following is present: • (1) Motion to Dismiss is pending; • (2) Debtor has failed to pay filing fees; • (3) Debtor has failed to complete financial management course; • (4) A § 727(a)(12) motion is pending [felony]; or • (5) A presumption that undue hardship has arisen do to entering into a reaffirmation agreement.

  40. Int. Rule 4008 Discharge and Reaffirmation Hearing • Section 524(k) [reaffirmation] statement must be accompanied by Schedules I and J, and must explain any discrepancies between the § 524(k) statement and Schedules I and J.

  41. Int. Rule 4007 Determination of Dischargeability of Debt • This rules makes applicable to Chapter 13 cases the time for filing a complaint to determine the dischargeability of a debt under § 523(c).

  42. When Do You File a Statement of Completion of a Course in Personal Financial Management and What Happens if you Don’t?

  43. Statement of completion of course in personal financial management Chapter 7 case. Must be filed 45 days after first date set for the meeting of creditors Chapter 13 case. Must be filed no later than the last payment made by the debtor under the plan, or the filing of a motion for entry of discharge. S.O. 2. Appendix E

  44. Int. Rule 4006 Notice of No Discharge • Creditors are entitled to notice that a case was closed without the debtor receiving a discharge if the debtor fails to complete the personal financial management course.

  45. What Changes Apply to Chapter 11 Cases?

  46. S.O. 2 /L. R. 2081-1 – Chapter 11 General • Requirement to file an initial financial report does NOT apply to a small business debtor. • Fixes a time in which ALL Chapter 11 debtors must provide certain documents to the USt.

  47. S.O. 2 /L. R. 3022-1 – Final report/Decree (Ch.11) • The rule has now been divided into two parts: one for non-individuals, and one for individual debtors. • Subsection (a) applies only to non-individuals. • Subsection (b) fixes a time for an individual debtor to request a final decree after all plan payments have been made, and for notice of the final decree and discharge to be given.

  48. What Changes Apply to Chapter 13 Cases?

  49. S.O. 2 /L. R. 2083-1- Chapter 13 General • Adequate Protection and Lease Payments in Chapter 13 cases. • Chapter 13 plan to include the information regarding the creditors to receive adequate protection or lease payments.