Consumer Bankruptcy Committee

ABI Committee News

Repeat Filings under BAPCPA: Stays, Multiple Discharges and Chapter 20

by: Harry Boul
Boul & Associates PC; Columbia, Mo.

It’s not what a man doesn’t know that makes him a fool, it’s what he does know that ain't so.
-Josh Billings

It is now widely known that the Bankruptcy Abuse and Consumer Protection Act of 2005 (BAPCPA) changed the waiting times for certain debtors who, having previously obtained a discharge, wish to seek another. It is perhaps less widely known that BAPCPA limits or denies a stay to certain repeat filers following dismissals during the previous year. It is not unusual for a lawyer to be asked how long a person who previously filed bankruptcy must wait to file again. A common answer to this question seems to be something like, “You now have to wait eight years.” That answer is often wrong and can mislead and discourage debtors in need of bankruptcy relief from seeking a remedy for which they qualify.

Read the full article.

An Examination of The Rule Making Process –The Proposed National Bankruptcy Rules

by: Judge Christopher M. Klein
U.S. Bankruptcy Court; Sacramento, Calif.

Judge Keith M. Lundin
U.S. Bankruptcy Court; Nashville, Tenn.

Prof. Alan N. Resnick
Fried, Frank, Harris, Shriver & Jacobson LLP; New York

Judge Thomas F. Waldron
U.S. Bankruptcy Court; Dayton, Ohio

These materials from the Winter Leadership Conference describe the significant proposed changes in the Federal Rules of Bankruptcy Procedure, resulting from the passage of BAPCPA in 2005. It covers proposed changes to the Official Forms as well.

Read the full article. (Materials from the 2006 Winter Leadership Conference)

Minutes from 2006 Winter Leadership Conference

Hon. Dennis Dow, co-chair of the committee, discussed several opportunities for the members of the committee to become more active:

            1.         Electronic newsletter – the committee always needs submissions. Judge Dow will send out an email to members of the committee seeking articles.

            2.         ListServe – for members to participate in discussions.

            3.         Articles for Consumer Corner – members are encouraged to submit longer articles for publication in the Consumer Corner section of the ABI Journal. Please contact Timothy Moratzka with Mackall, Crounse & Moore in Minnesota, 612-305-1456 or tdm@mcmlaw.com.

Judge Dow discussed the committee meeting at the Annual Spring Meeting (April 2007). The topic will be §707(b), Income and Expense Issues in Chapter 7 and Chapter 13 Cases. Judge Eileen Hollowell from Arizona will moderate. Diane Kerns, a chapter 13 trustee, will be on the panel along with Mark Redmiles of the U. S. Trustee’s Office, who is the chief of enforcement.

A panel discussion was held regarding the promulgation of new Bankruptcy Rules. The distinguished panel was made up of Judge Keith Lundin, Judge Christopher Klein, Judge Thomas Waldron, and Prof. Allen Resnick. Judge Waldron reviewed the process of promulgating new and amended rules by the Rules Committee. Materials related to this process are available online. Judge Waldron noted that the language in BAPCPA is “a mess,” and it may be beyond the ability of the Bankruptcy Rules to address some of the problems in the statute. Prof. Resnick also spoke about the rule-making process. He formerly served on the Rules Committee. He noted that the Rules Committee is a part of the Judicial Conference. The Advisory Committee on the Bankruptcy Rules, which is a subcommittee of the Rules Committee, is made up of 16 members.

There was discussion about the work of the Rules Committee to promulgate interim rules after BAPCPA was enacted. Since they had only four months to come up with draft interim rules, these did not go through the standard rule-making process. This process generally takes three years to promulgate both new rules and forms.

In March 2006, a draft of proposed rules were published and put out for public comment. The draft rules are available for review online at www.uscourts.gov/rules. The deadline to submit comments is Feb. 15, 2007. In addition, a hearing by the Rules Committee to consider testimony related to the proposed amended rules is set for Jan. 22, 2007 in Washington, D.C. Anyone can submit a request to testify at the hearing.

There was discussion regarding the official forms, which are promulgated pursuant to Bankruptcy Rule 9009. Putting together these official forms, and attempting to stay neutral with regard to issues related to different interpretations of the Bankruptcy Code, is sometimes a difficult process. There was discussion of director forms, which are put out by the director of the Administrative Office of the U. S. Courts. These forms do not go through the standard rule-making process. One of these forms is the reaffirmation form.

The panel then addressed issues related to the Form 22, which is the form used to calculate current monthly income (CMI) under the new “means test.” Judge Lundin noted that Form 22 seems to be driving the case law. There was a discussion regarding the continued relevance of Form 6 (schedules I and J). There was a very lively discussion regarding issues related to the calculation of CMI.

At the conclusion of the committee meeting, David Wheeler made a brief presentation on the survey currently being taken by the ABI’s Rules Task Force. The Task Force has requested all ABI members to fill out the survey, which is available online at the ABI Web site (www.abiworld.org/source/rules_survey/loginpage). The information from the survey will be compiled and used by ABI in submitting comments to the Rules Committee. ABI has filed a request to testify at the upcoming hearing in January 2007.

Not able to attend the 2006 ABI Winter Leadership Conference?

Watch or listen to selected sessions of various ABI programs via ABI Distance Learning starting at the low cost of $65 per session. ABI Distance Learning provides expanded online access to programming from ABI meetings and events in audio or video format, with the opportunity to earn CLE credit from the convenience of your home or office computer— 24 hours a day, seven days a week. CLE credit is available in certain states (click here to see if your state allows online CLE credit). Now available through the ABI Distance Learning Center: Consumer Bankruptcy Committee Educational Session