These rules govern bankruptcy proceedings in Federal courts. Pending Bankruptcy Rule Changes - Effective December 1, 2010
Federal Rules of Bankruptcy Procedure (2009)
(incorporating the revisions that took effect Dec. 1, 2008)
Note: please see Interim Rules and Official Forms Implementing the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
PART I. COMMENCEMENT OF CASE: PROCEEDINGS RELATING TO PETITION AND ORDER FOR RELIEF
PART II. OFFICERS AND ADMINISTRATION; NOTICES; MEETINGS; EXAMINATIONS; ELECTIONS; ATTORNEYS AND ACCOUNTANTS
PART III. CLAIMS AND DISTRIBUTION TO CREDITORS AND EQUITY INTEREST HOLDERS; PLANS
PART IV. THE DEBTOR: DUTIES AND BENEFITS
PART V. BANKRUPTCY COURTS AND CLERKS
PART VI. COLLECTION AND LIQUIDATION OF THE ESTATE
PART VII. ADVERSARY PROCEEDINGS
PART VIII. APPEALS TO DISTRICT COURT OR BANKRUPTCY APPELLATE PANEL
PART IX. GENERAL PROVISIONS
PART X. UNITED STATES TRUSTEES [ABROGATED]
Consolidated and Reconciled Federal Rules of
Bankruptcy Procedure, with 2009 Amendments
Rule 1001. Scope of Rules and Forms; Short Title
The Bankruptcy Rules and Forms govern procedure in
cases under Title 11 of the United States Code. The rules shall be cited as the
Federal Rules of Bankruptcy Procedure and the forms as the Official Bankruptcy
Forms. These rules shall be construed to secure the just, speedy, and
inexpensive determination of every case and proceeding.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
PART
Rule 1002. Commencement of Case
(a) Petition. A
petition commencing a case under the Code shall be filed with the clerk.
(b) Transmission to
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 1003. Involuntary Petition
(a) Transferor or Transferee of Claim. A transferor or transferee of a claim shall annex to
the original and each copy of the petition a copy of all documents evidencing
the transfer, whether transferred unconditionally, for security, or otherwise,
and a signed statement that the claim was not transferred for the purpose of
commencing the case and setting forth the consideration for and terms of the
transfer. An entity that has transferred or acquired a claim for the purpose of
commencing a case for liquidation under chapter 7 or for reorganization under
chapter 11 shall not be a qualified petitioner.
(b) Joinder of Petitioners After Filing. If the answer to an involuntary petition filed by
fewer than three creditors avers the existence of 12 or more creditors, the
debtor shall file with the answer a list of all creditors with their addresses,
a brief statement of the nature of their claims, and the amounts thereof. If it
appears that there are 12 or more creditors as provided in § 303(b) of the
Code, the court shall afford a reasonable opportunity for other creditors to
join in the petition before a hearing is held thereon.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 1004. Involuntary Petition Against a Partnership
After filing of an involuntary petition under §
303(b)(3) of the Code, (1) the petitioning partners or other petitioners shall
promptly send to or serve on each general partner who is not a petitioner a
copy of the petition; and (2) the clerk shall promptly issue a summons for
service on each general partner who is not a petitioner. Rule 1010 applies to
the form and service of the summons.
(As amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 1004.1. Petition for an Infant or Incompetent
Person
If an infant or incompetent person has a
representative, including a general guardian, committee, conservator, or
similar fiduciary, the representative may file a voluntary petition on behalf
of the infant or
incompetent person. An infant or incompetent person
who does not have a duly appointed representative may file a voluntary petition
by next friend or guardian ad litem. The court shall appoint a guardian ad
litem for an infant or incompetent person who is a debtor and is not otherwise
represented or shall make any other order to protect the infant or incompetent
debtor.
(Added Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 1005. Caption of Petition
The caption of a petition commencing a case under the
Code shall contain the name of the court, the title of the case, and the docket
number. The title of the case shall include the following information about the
debtor: name, employer identification number, last four digits of the
social-security number or individual debtor's taxpayer-identification number,
any other federal taxpayer-identification number, and all other names used
within eight years before filing the petition. If the petition is not filed by
the debtor, it shall include all names used by the debtor which are known to
the petitioners.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Mar. 27,
2003, eff. Dec. 1, 2003; Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 1006. Filing Fee
(a) General Requirement. Every petition shall be accompanied by the filing fee
except as provided in subdivisions (b) and (c) of this rule. For the purpose of
this rule, “filing fee” means the filing fee prescribed by 28 U.S.C. §
1930(a)(1)–(a)(5) and any other fee prescribed by the Judicial Conference of
the United States under 28 U.S.C. § 1930(b) that is payable to the clerk upon
the commencement of a case under the Code.
(b) Payment of Filing Fee in Installments.
(1) Application to Pay Filing Fee in Installments. A
voluntary petition by an individual shall be accepted for filing if accompanied
by the debtor's signed application, prepared as prescribed by the appropriate
Official Form, stating that the debtor is unable to pay the filing fee except
in installments.
(2) Action on Application. Prior to the meeting
of creditors, the court may order the filing fee paid to the clerk or grant
leave to pay in installments and fix the number, amount and dates of payment.
The number of installments shall not exceed four, and the final installment
shall be payable not later than 120 days after filing the petition. For cause
shown, the court may extend the time of any installment, provided the last
installment is paid not later than 180 days after filing the petition.
(3) Postponement of Attorney's Fees. All
installments of the filing fee must be paid in full before the debtor or
chapter 13 trustee may make further payments to an attorney or any other person
who renders services to the debtor in connection with the case.
(c) Waiver of Filing Fee. A voluntary chapter 7 petition filed by an individual
shall be accepted for filing if accompanied by the debtor's application
requesting a waiver under 28 U.S.C. § 1930(f), prepared as prescribed by the
appropriate Official Form.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 23,
1996, eff. Dec. 1, 1996; Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 1007. Lists, Schedules, Statements, and Other
Documents; Time Limits
(a) Corporate Ownership Statement, List of Creditors
and Equity Security Holders, and Other Lists.
(1) Voluntary Case. In a voluntary case, the
debtor shall file with the petition a list containing the name and address of
each entity included or to be included on Schedules D, E, F, G, and H as
prescribed by the Official Forms. If the debtor is a
corporation, other than a governmental unit, the debtor shall file with the
petition a corporate ownership statement containing the information described
in
Rule 7007.1. The debtor shall file a supplemental
statement promptly upon any change in circumstances that renders the corporate
ownership statement inaccurate.
(2) Involuntary Case. In an involuntary case,
the debtor shall file within 14 days after entry of the order for relief, a
list containing the name and address of each entity included or to be included
on Schedules D, E, F, G, and H as prescribed by the Official Forms.
(3) Equity Security Holders. In a chapter 11
reorganization case, unless the court orders otherwise, the debtor shall file
within 14 days after entry of the order for relief a list of the debtor's
equity security holders of each class showing the number and kind of interests
registered in the name of each holder, and the last known address or place of
business of each holder.
(4) Chapter 15 Case. In addition to the
documents required under § 1515 of the Code, a foreign representative filing a
petition for recognition under chapter 15 shall file with the petition: (A) a
corporate ownership statement containing the information described in Rule
7007.1; and (B) unless the court orders otherwise, a list containing the names
and addresses of all persons or bodies authorized to administer foreign
proceedings of the debtor, all parties to litigation pending in the United
States in which the debtor is a party at the time of the filing of the
petition, and all entities against whom provisional relief is being sought under
§ 1519 of the Code.
(5) Extension of Time. Any extension of time
for the filing of the lists required by this subdivision may be granted only on
motion for cause shown and on notice to the United States trustee and to any
trustee, committee elected under § 705 or appointed under § 1102 of the Code,
or other party as the court may direct.
(b) Schedules, Statements, and Other Documents
Required.
(1) Except in a chapter 9 municipality case, the
debtor, unless the court orders otherwise, shall file the following schedules,
statements, and other documents, prepared as prescribed by the appropriate
Official Forms, if any:
(A) schedules of assets and liabilities;
(B) a schedule of current income and expenditures;
(C) a schedule of executory contracts and unexpired
leases;
(D) a statement of financial affairs;
(E) copies of all payment advices or other evidence of
payment, if any, received by the debtor from an employer within 60 days before
the filing of the petition, with redaction of all but the last four digits of
the debtor's social-security number or individual taxpayer-identification
number; and
(F) a record of any interest that the debtor has in an
account or program of the type specified in § 521(c) of the Code.
(2) An individual debtor in a chapter 7 case shall
file a statement of intention as required by § 521(a) of the Code, prepared as
prescribed by the appropriate Official Form. A copy of the statement of
intention shall be served on the trustee and the creditors named in the
statement on or before the filing of the statement.
(3) Unless the United States trustee has determined
that the credit counseling requirement of § 109(h) does not apply in the
district, an individual debtor must file a statement of compliance with the
credit counseling requirement, prepared as prescribed by the appropriate
Official Form which must include one of the following:
(A) an attached certificate and debt repayment plan,
if any, required by § 521(b);
(B) a statement that the debtor has received the
credit counseling briefing required by § 109(h)(1) but does not have the
certificate required by § 521(b);
(C) a certification under § 109(h)(3); or
(D) a request for a determination by the court under §
109(h)(4).
(4) Unless § 707(b)(2)(D) applies, an individual debtor
in a chapter 7 case shall file a statement of current monthly income prepared
as prescribed by the appropriate Official Form, and, if the current
monthly income exceeds the median family income for
the applicable state and household size, the information, including
calculations, required by § 707(b), prepared as prescribed by the appropriate
Official Form.
(5) An individual debtor in a chapter 11 case shall
file a statement of current monthly income, prepared as prescribed by the
appropriate Official Form.
(6) A debtor in a chapter 13 case shall file a
statement of current monthly income, prepared as prescribed by the appropriate
Official Form, and, if the current monthly income exceeds the median family
income for the applicable state and household size, a calculation of disposable
income made in accordance with § 1325(b)(3), prepared as prescribed by the
appropriate Official Form.
(7) An individual debtor in a chapter 7 or chapter 13
case shall file a statement of completion of a course concerning personal
financial management, prepared as prescribed by the appropriate Official Form.
An individual debtor shall file the statement in a chapter 11 case in which §
1141(d)(3) applies.
(8) If an individual debtor in a chapter 11, 12, or 13
case has claimed an exemption under § 522(b)(3)(A) in property of the kind
described in § 522(p)(1) with a value in excess of the amount set out in §
522(q)(1), the debtor shall file a statement as to whether there is any
proceeding pending in which the debtor may be found guilty of a felony of a
kind described in § 522(q)(1)(A) or found liable for a debt of the kind
described in § 522(q)(1)(B).
(c) Time Limits. In a voluntary case, the schedules, statements, and other documents
required by subdivision (b)(1), (4), (5), and (6) shall be filed with the
petition or within 14 days thereafter, except as otherwise provided in
subdivisions (d), (e), (f), and (h) of this rule. In an involuntary case, the
list in subdivision (a)(2), and the schedules, statements, and other documents
required by subdivision (b)(1) shall be filed by the debtor within 14 days of
the entry of the order for relief. In a voluntary case, the documents required
by paragraphs (A), (C), and (D) of subdivision (b)(3) shall be filed with the
petition. Unless the court orders otherwise, a debtor who has filed a statement
under subdivision (b)(3)(B), shall file the documents required by subdivision
(b)(3)(A) within 14 days of the order for relief. In a chapter 7 case, the
debtor shall file the statement required by subdivision (b)(7) within 45 days
after the first date set for the meeting of creditors under § 341 of the Code,
and in a chapter 11 or 13 case no later than the date when the last payment was
made by the debtor as required by the plan or the filing of a motion for a
discharge under § 1141(d)(5)(B) or § 1328(b) of the Code. The court may, at any
time and in its discretion, enlarge the time to file the statement required by
subdivision (b)(7). The debtor shall file the statement required by subdivision
(b)(8) no earlier than the date of the last payment made under the plan or the
date of the filing of a motion for a discharge under §§ 1141(d)(5)(B), 1228(b),
or 1328(b) of the Code. Lists, schedules, statements, and other documents filed
prior to the conversion of a case to another chapter shall be deemed filed in
the converted case unless the court directs otherwise. Except as provided in §
1116(3), any extension of time to file schedules, statements, and other
documents required under this rule may be granted only on motion for cause
shown and on notice to the United States trustee, any committee elected under §
705 or appointed under § 1102 of the Code, trustee, examiner, or other party as
the court may direct. Notice of an extension shall be given to the
(d) List of 20 Largest Creditors in Chapter 9
Municipality Case or Chapter 11 Reorganization Case. In addition to the list required by subdivision (a) of
this rule, a debtor in a chapter 9 municipality case or a debtor in a voluntary
chapter 11 reorganization case shall file with the petition a list containing
the name, address and claim of the creditors that hold the 20 largest unsecured
claims, excluding insiders, as prescribed by the appropriate Official Form. In
an involuntary chapter 11 reorganization case, such list shall be filed by the
debtor within 2 days after entry of the order for relief under § 303(h) of the
Code.
(e) List in Chapter 9 Municipality Cases. The list required by subdivision (a) of this rule
shall be filed by the debtor in a chapter 9 municipality case within such time
as the court shall fix. If a proposed plan requires a revision of assessments
so that the proportion of special assessments or special taxes to be assessed
against some real property will be different from the proportion in effect at
the date the petition is filed, the debtor shall also file a list showing the
name and address of each known holder of title, legal
or equitable, to real property adversely affected. On
motion for cause shown, the court may modify the requirements of this
subdivision and subdivision (a) of this rule.
(f) Statement of Social Security Number. An individual debtor shall submit a verified statement
that sets out the debtor's social security number, or states that the debtor
does not have a social security number. In a voluntary case, the debtor shall
submit the statement with the petition. In an involuntary case, the debtor
shall submit the statement within 14 days after the entry of the order for
relief.
(g) Partnership and Partners. The general partners of a debtor partnership shall
prepare and file the list required under subdivision (a), the schedules of the
assets and liabilities, schedule of current income and expenditures, schedule
of executory contracts and unexpired leases, and statement of financial affairs
of the partnership. The court may order any general partner to file a statement
of personal assets and liabilities within such time as the court may fix.
(h) Interests Acquired or Arising After Petition. If, as provided by § 541(a)(5) of the Code, the debtor
acquires or becomes entitled to acquire any interest in property, the debtor
shall within 14 days after the information comes to the debtor's knowledge or
within such further time the court may allow, file a supplemental schedule in
the chapter 7 liquidation case, chapter 11 reorganization case, chapter 12
family farmer's debt adjustment case, or chapter 13 individual debt adjustment
case. If any of the property required to be reported under this subdivision is
claimed by the debtor as exempt, the debtor shall claim the exemptions in the
supplemental schedule. The duty to file a supplemental schedule in accordance
with this subdivision continues notwithstanding the closing of the case, except
that the schedule need not be filed in a chapter 11, chapter 12, or chapter 13
case with respect to property acquired after entry of the order confirming a
chapter 11 plan or discharging the debtor in a chapter 12 or chapter 13 case.
(i) Disclosure of List of Security Holders. After notice and hearing and for cause shown, the
court may direct an entity other than the debtor or trustee to disclose any
list of security holders of the debtor in its possession or under its control,
indicating the name, address and security held by any of them. The entity
possessing this list may be required either to produce the list or a true copy
thereof, or permit inspection or copying, or otherwise disclose the information
contained on the list.
(j) Impounding of Lists. On motion of a party in interest and for cause shown
the court may direct the impounding of the lists filed under this rule, and may
refuse to permit inspection by any entity. The court may permit inspection or
use of the lists, however, by any party in interest on terms prescribed by the
court.
(k) Preparation of List, Schedules, or Statements on
Default of Debtor. If a list, schedule,
or statement, other than a statement of intention, is not prepared and filed as
required by this rule, the court may order the trustee, a petitioning creditor,
committee, or other party to prepare and file any of these papers within a time
fixed by the court. The court may approve reimbursement of the cost incurred in
complying with such an order as an administrative expense.
(l) Transmission to
(m) Infants and Incompetent Persons. If the debtor knows that a person on the list of
creditors or schedules is an infant or incompetent person, the debtor also
shall include the name, address, and legal relationship of any person upon whom
process would be served in an adversary proceeding against the infant or
incompetent person in accordance with Rule 7004(b)(2).
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 23, 2001, eff.
Dec. 1, 2001; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 25, 2005, eff. Dec. 1,
2005; Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 1008. Verification of Petitions and Accompanying
Papers
All petitions, lists, schedules, statements and
amendments thereto shall be verified or contain an unsworn declaration as
provided in 28 U.S.C. § 1746.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 1009. Amendments of Voluntary Petitions, Lists,
Schedules and Statements
(a) General Right to Amend. A voluntary petition, list, schedule, or statement may
be amended by the debtor as a matter of course at any time before the case is
closed. The debtor shall give notice of the amendment to the trustee and to any
entity affected thereby. On motion of a party in interest, after notice and a
hearing, the court may order any voluntary petition, list, schedule, or
statement to be amended and the clerk shall give notice of the amendment to
entities designated by the court.
(b) Statement of Intention. The statement of intention may be amended by the
debtor at any time before the expiration of the period provided in § 521(a) of
the Code. The debtor shall give notice of the amendment to the trustee and to
any entity affected thereby.
(c) Statement of Social Security Number. If a debtor becomes aware that the statement of social
security number submitted under Rule 1007(f) is incorrect, the debtor shall
promptly submit an amended verified statement setting forth the correct social
security number. The debtor shall give notice of the amendment to all of the
entities required to be included on the list filed under Rule 1007(a)(1) or
(a)(2).
(d) Transmission to
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 23, 2008, eff.
Dec. 1, 2008.)
Rule 1010. Service of Involuntary Petition and
Summons; Petition for Recognition of a Foreign Nonmain Proceeding
(a) Service of Involuntary Petition and Summons;
Service of Petition for Recognition of Foreign Nonmain Proceeding. On the filing of an involuntary petition or a petition
for recognition of a foreign nonmain proceeding, the clerk shall forthwith
issue a summons for service. When an involuntary petition is filed, service
shall be made on the debtor. When a petition for recognition of a foreign
nonmain proceeding is filed, service shall be made on the debtor, any entity
against whom provisional relief is sought under § 1519 of the Code, and on any
other party as the court may direct. The summons shall be served with a copy of
the petition in the manner provided for service of a summons and complaint by
Rule 7004(a) or (b). If service cannot be so made, the court may order that the
summons and petition be served by mailing copies to the party's last known
address, and by at least one publication in a manner and form directed by the
court. The summons and petition may be served on the party anywhere. Rule
7004(e) and Rule 4(l) F. R. Civ. P. apply when service is made or attempted
under this rule.
(b) Corporate Ownership Statement. Each petitioner that is a corporation shall file with
the involuntary petition a corporate ownership statement containing the
information described in Rule 7007.1.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993; Apr. 11, 1997, eff.
Dec. 1, 1997; Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 1011. Responsive Pleading or Motion in
Involuntary and Cross-Border Cases
(a) Who May Contest Petition. The debtor named in an involuntary petition, or a
party in interest to a petition for recognition of a foreign proceeding, may
contest the petition. In the case of a petition against a partnership under
Rule 1004, a nonpetitioning general partner, or a person who is alleged to be a
general partner but denies the allegation, may contest the petition.
(b) Defenses and Objections; When Presented. Defenses and objections to the petition shall be
presented in the manner prescribed by Rule 12 F. R. Civ. P. and shall be filed
and served within 21 days after service of the summons, except that if service
is made by publication on a party or partner not
residing or found within the state in which the court
sits, the court shall prescribe the time for filing and serving the response.
(c) Effect of Motion. Service of a motion under Rule 12(b) F. R. Civ. P.
shall extend the time for filing and serving a responsive pleading as permitted
by Rule 12(a) F. R. Civ. P.
(d) Claims Against Petitioners. A claim against a petitioning creditor may not be
asserted in the answer except for the purpose of defeating the petition.
(e) Other Pleadings. No other pleadings shall be permitted, except that the
court may order a reply to an answer and prescribe the time for filing and
service.
(f) Corporate Ownership Statement. If the entity responding to the involuntary petition
or the petition for recognition of a foreign proceeding is a corporation, the
entity shall file with its first appearance, pleading, motion, response, or
other request addressed to the court a corporate ownership statement containing
the information described in Rule 7007.1.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 26,
2004, eff. Dec. 1, 2004; Apr. 23, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 1012. [Abrogated]
Rule 1013. Hearing and Disposition of a Petition in an
Involuntary Case
(a) Contested Petition. The court shall determine the issues of a contested
petition at the earliest practicable time and forthwith enter an order for
relief, dismiss the petition, or enter any other appropriate order.
(b) Default. If
no pleading or other defense to a petition is filed within the time provided by
Rule 1011, the court, on the next day, or as soon thereafter as practicable,
shall enter an order for the relief requested in the petition.
(c) [Abrogated]
(As amended Apr. 30, 1991, eff. Aug. 1, 1991; Apr. 22,
1993, eff. Aug. 1, 1993.)
Rule 1014. Dismissal and Change of Venue
(a) Dismissal and Transfer of Cases.
(1) Cases Filed in Proper District. If a
petition is filed in the proper district, the court, on the timely motion of a
party in interest or on its own motion, and after hearing on notice to the
petitioners, the United States trustee, and other entities as directed by the
court, may transfer the case to any other district if the court determines that
the transfer is in the interest of justice or for the convenience of the
parties.
(2) Cases Filed in Improper District. If a
petition is filed in an improper district, the court, on the timely motion of a
party in interest or on its own motion, and after hearing on notice to the
petitioners, the United States trustee, and other entities as directed by the
court, may dismiss the case or transfer it to any other district if the court
determines that transfer is in the interest of justice or for the convenience
of the parties.
(b) Procedure When Petitions Involving the Same Debtor
or Related Debtors Are Filed in Different Courts. If petitions commencing cases under the Code are filed
in different districts by or against (1) the same debtor, or (2) a partnership
and one or more of its general partners, or (3) two or more general partners,
or (4) a debtor and an affiliate, on motion filed in the district in which the
petition filed first is pending and after hearing on notice to the petitioners,
the United States trustee, and other entities as directed by the court, the
court may determine, in the interest of justice or for the convenience of the
parties, the district or districts in which the case or cases should proceed.
Except as otherwise
ordered by the court in the district in which the
petition filed first is pending, the proceedings on the other petitions shall
be stayed by the courts in which they have been filed until the determination
is made.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 1015. Consolidation or Joint Administration of
Cases Pending in Same Court
(a) Cases Involving Same Debtor. If two or more petitions are pending in the same court
by or against the same debtor, the court may order consolidation of the cases.
(b) Cases Involving Two or More Related Debtors. If a joint petition or two or more petitions are
pending in the same court by or against (1) a husband and wife, or (2) a
partnership and one or more of its general partners, or (3) two or more general
partners, or (4) a debtor and an affiliate, the court may order a joint
administration of the estates. Prior to entering an order the court shall give
consideration to protecting creditors of different estates against potential
conflicts of interest. An order directing joint administration of individual
cases of a husband and wife shall, if one spouse has elected the exemptions
under § 522(b)(2) of the Code and the other has elected the exemptions under §
522(b)(3), fix a reasonable time within which either may amend the election so that
both shall have elected the same exemptions. The order shall notify the debtors
that unless they elect the same exemptions within the time fixed by the court,
they will be deemed to have elected the exemptions provided by § 522(b)(2).
(c) Expediting and Protective Orders. When an order for consolidation or joint
administration of a joint case or two or more cases is entered pursuant to this
rule, while protecting the rights of the parties under the Code, the court may
enter orders as may tend to avoid unnecessary costs and delay.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 23,
2008, eff. Dec. 1, 2008.)
Rule 1016. Death or Incompetency of Debtor
Death or incompetency of the debtor shall not abate a
liquidation case under chapter 7 of the Code. In such event the estate shall be
administered and the case concluded in the same manner, so far as possible, as
though the death or incompetency had not occurred. If a reorganization, family
farmer's debt adjustment, or individual's debt adjustment case is pending under
chapter 11, chapter 12, or chapter 13, the case may be dismissed; or if further
administration is possible and in the best interest of the parties, the case
may proceed and be concluded in the same manner, so far as possible, as though
the death or incompetency had not occurred.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 1017. Dismissal or Conversion of Case; Suspension
(a) Voluntary Dismissal; Dismissal for Want of
Prosecution or Other Cause. Except as
provided in §§ 707(a)(3), 707(b), 1208(b), and 1307(b) of the Code, and in Rule
1017(b), (c), and (e), a case shall not be dismissed on motion of the
petitioner, for want of prosecution or other cause, or by consent of the
parties, before a hearing on notice as provided in Rule 2002. For the purpose
of the notice, the debtor shall file a list of creditors with their addresses
within the time fixed by the court unless the list was previously filed. If the
debtor fails to file the list, the court may order the debtor or another entity
to prepare and file it.
(b) Dismissal for Failure to Pay Filing Fee.
(1) If any installment of the filing fee has not been
paid, the court may, after a hearing on notice to the debtor and the trustee,
dismiss the case.
(2) If the case is dismissed or closed without full
payment of the filing fee, the installments collected shall be distributed in
the same manner and proportions as if the filing fee had been paid in full.
(c) Dismissal of Voluntary Chapter 7 or Chapter 13
Case for Failure to Timely File List of Creditors, Schedules, and Statement of
Financial Affairs. The court may
dismiss a voluntary chapter 7 or chapter 13 case under § 707(a)(3) or §
1307(c)(9) after a hearing on notice served by the United States trustee on the
debtor, the trustee, and any other entities as the court directs.
(d) Suspension. The court shall not dismiss a case or suspend proceedings under § 305
before a hearing on notice as provided in Rule 2002(a).
(e) Dismissal of an Individual Debtor's Chapter 7
Case, or Conversion to a Case Under Chapter 11 or 13, for Abuse. The court may dismiss or, with the debtor's consent,
convert an individual debtor's case for abuse under § 707(b) only on motion and
after a hearing on notice to the debtor, the trustee, the
(1) Except as otherwise provided in § 704(b)(2), a
motion to dismiss a case for abuse under § 707(b) or (c) may be filed only
within 60 days after the first date set for the meeting of creditors under §
341(a), unless, on request filed before the time has expired, the court for
cause extends the time for filing the motion to dismiss. The party filing the
motion shall set forth in the motion all matters to be considered at the
hearing. In addition, a motion to dismiss under § 707(b)(1) and (3) shall state
with particularity the circumstances alleged to constitute abuse.
(2) If the hearing is set on the court's own motion,
notice of the hearing shall be served on the debtor no later than 60 days after
the first date set for the meeting of creditors under § 341(a). The notice
shall set forth all matters to be considered by the court at the hearing.
(f) Procedure for Dismissal, Conversion, or
Suspension.
(1) Rule 9014 governs a proceeding to dismiss or
suspend a case, or to convert a case to another chapter, except under §§
706(a), 1112(a), 1208(a) or (b), or 1307(a) or (b).
(2) Conversion or dismissal under §§ 706(a), 1112(a),
1208(b), or 1307(b) shall be on motion filed and served as required by Rule
9013.
(3) A chapter 12 or chapter 13 case shall be converted
without court order when the debtor files a notice of conversion under §§
1208(a) or 1307(a). The filing date of the notice becomes the date of the
conversion order for the purposes of applying § 348(c) and Rule 1019. The clerk
shall promptly transmit a copy of the notice to the
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993; Apr. 29, 1999, eff.
Dec. 1, 1999; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 23, 2008, eff. Dec. 1,
2008.)
Rule 1018. Contested Involuntary Petitions; Contested
Petitions Commencing Ancillary Cases; Proceedings to Vacate Order for Relief;
Applicability of Rules in Part VII Governing Adversary Proceedings
The following rules in Part VII apply to all
proceedings relating to a contested involuntary petition, to proceedings
relating to a contested petition commencing a case ancillary to a foreign
proceeding, and to all proceedings to vacate an order for relief: Rules 7005,
7008–7010, 7015, 7016, 7024–7026, 7028–7037, 7052, 7054, 7056, and 7062, except
as otherwise provided in Part I of these rules and unless the court otherwise
directs. The court may direct that other rules in Part VII shall also apply.
For the purposes of this rule a reference in the Part VII rules to adversary
proceedings shall be read as a reference to proceedings relating to a contested
involuntary petition, or contested ancillary petition, or proceedings to vacate
an order for relief. Reference in the Federal Rules of Civil Procedure to the
complaint shall be read as a reference to the petition.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 1019. Conversion of a Chapter 11 Reorganization
Case, Chapter 12 Family Farmer's Debt Adjustment Case, or Chapter 13 Individual's
Debt Adjustment Case to a Chapter 7 Liquidation Case
When a chapter 11, chapter 12, or chapter 13 case has
been converted or reconverted to a chapter 7 case:
(1) Filing of Lists, Inventories, Schedules,
Statements.
(A) Lists, inventories, schedules, and statements of
financial affairs theretofore filed shall be deemed to be filed in the chapter
7 case, unless the court directs otherwise. If they have not been previously
filed, the debtor shall comply with Rule 1007 as if an order for relief had
been entered on an involuntary petition on the date of the entry of the order
directing that the case continue under chapter 7.
(B) If a statement of intention is required, it shall
be filed within 30 days after entry of the order of conversion or before the
first date set for the meeting of creditors, whichever is earlier. The court
may grant an extension of time for cause only on written motion filed, or oral
request made during a hearing, before the time has expired. Notice of an
extension shall be given to the
(2) New Filing Periods. A new time period for
filing a motion under § 707(b) or (c), a claim, a complaint objecting to
discharge, or a complaint to obtain a determination of dischargeability of any
debt shall commence under Rules 1017, 3002, 4004, or 4007, but a new time period
shall not commence if a chapter 7 case had been converted to a chapter 11, 12,
or 13 case and thereafter reconverted to a chapter 7 case and the time for
filing a motion under § 707(b) or (c), a claim, a complaint objecting to
discharge, or a complaint to obtain a determination of the dischargeability of
any debt, or any extension thereof, expired in the original chapter 7 case.
(3) Claims Filed Before Conversion. All claims
actually filed by a creditor before conversion of the case are deemed filed in
the chapter 7 case.
(4) Turnover of Records and Property. After
qualification of, or assumption of duties by the chapter 7 trustee, any debtor
in possession or trustee previously acting in the chapter 11, 12, or 13 case
shall, forthwith, unless otherwise ordered, turn over to the chapter 7 trustee
all records and property of the estate in the possession or control of the
debtor in possession or trustee.
(5) Filing Final Report and Schedule of
Postpetition Debts.
(A) Conversion of Chapter 11 or Chapter 12 Case.
Unless the court directs otherwise, if a chapter 11 or chapter 12 case is
converted to chapter 7, the debtor in possession or, if the debtor is not a
debtor in possession, the trustee serving at the time of conversion, shall:
(i) not later than 14 days after conversion of the
case, file a schedule of unpaid debts incurred after the filing of the petition
and before conversion of the case, including the name and address of each
holder of a claim; and
(ii) not later than 30 days after conversion of the case,
file and transmit to the
(B) Conversion of Chapter 13 Case. Unless the court
directs otherwise, if a chapter 13 case is converted to chapter 7,
(i) the debtor, not later than 14 days after
conversion of the case, shall file a schedule of unpaid debts incurred after
the filing of the petition and before conversion of the case, including the
name and address of each holder of a claim; and
(ii) the trustee, not later than 30 days after
conversion of the case, shall file and transmit to the United States trustee a
final report and account;
(C) Conversion After Confirmation of a Plan. Unless
the court orders otherwise, if a chapter 11, chapter 12, or chapter 13 case is
converted to chapter 7 after confirmation of a plan, the debtor shall file:
(i) a schedule of property not listed in the final
report and account acquired after the filing of the petition but before
conversion, except if the case is converted from chapter 13 to chapter 7 and §
348(f)(2) does not apply;
(ii) a schedule of unpaid debts not listed in the
final report and account incurred after confirmation but before the conversion;
and
(iii) a schedule of executory contracts and unexpired
leases entered into or assumed after the filing of the petition but before
conversion.
(D) Transmission to
(6) Postpetition Claims; Preconversion
Administrative Expenses; Notice. A request for payment of an administrative
expense incurred before conversion of the case is timely filed under § 503(a)
of the Code if it is filed before conversion or a time fixed by the court. If
the request is filed by a governmental unit, it is timely if it is filed before
conversion or within the later of a time fixed by the court or 180 days after
the date of the conversion. A claim of a kind specified in § 348(d) may be
filed in accordance with Rules 3001(a)–(d) and 3002. Upon the filing of the
schedule of unpaid debts incurred after commencement of the case and before
conversion, the clerk, or some other person as the court may direct, shall give
notice to those entities listed on the schedule of the time for filing a
request for payment of an administrative expense and, unless a notice of
insufficient assets to pay a dividend is mailed in accordance with Rule
2002(e), the time for filing a claim of a kind specified in § 348(d).
(7) [Abrogated]
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 11, 1997, eff.
Dec. 1, 1997; Apr. 29, 1999, eff. Dec. 1, 1999; Apr. 23, 2008, eff. Dec. 1,
2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 1020. Small Business Chapter 11 Reorganization
Case
(a) Small Business Debtor Designation. In a voluntary chapter 11 case, the debtor shall state
in the petition whether the debtor is a small business debtor. In an
involuntary chapter 11 case, the debtor shall file within 14 days after entry
of the order for relief a statement as to whether the debtor is a small
business debtor. Except as provided in subdivision (c), the status of the case
as a small business case shall be in accordance with the debtor's statement
under this subdivision, unless and until the court enters an order finding that
the debtor's statement is incorrect.
(b) Objecting to Designation. Except as provided in subdivision (c), the United
States trustee or a party in interest may file an objection to the debtor's
statement under subdivision (a) no later than 30 days after the conclusion of
the meeting of creditors held under § 341(a) of the Code, or within 30 days
after any amendment to the statement, whichever is later.
(c) Appointment of Committee of Unsecured Creditors. If a committee of unsecured creditors has been
appointed under § 1102(a)(1), the case shall proceed as a small business case
only if, and from the time when, the court enters an order determining that the
committee has not been sufficiently active and representative to provide
effective oversight of the debtor and that the debtor satisfies all the other
requirements for being a small business. A request for a determination under
this subdivision may be filed by the
(d) Procedure for Objection or Determination. Any objection or request for a determination under
this rule shall be governed by Rule 9014 and served on: the debtor; the debtor's
attorney; the United States trustee; the trustee; any committee appointed under
§ 1102 or its authorized agent, or, if no committee of unsecured creditors has
been appointed under § 1102, the creditors included on the list filed under
Rule 1007(d); and any other entity as the court directs.
(Added Apr. 11, 1997, eff. Dec. 1, 1997, and amended
Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 1021. Health Care Business Case
(a) Health Care Business Designation. Unless the court orders otherwise, if a petition in a
case under chapter 7, chapter 9, or chapter 11 states that the debtor is a
health care business, the case shall proceed as a case in which the debtor is a
health care business.
(b) Motion. The
(Added Apr. 23, 2008, eff. Dec. 1, 2008.)
PART II. OFFICERS AND ADMINISTRATION; NOTICES;
MEETINGS; EXAMINATIONS; ELECTIONS; ATTORNEYS AND ACCOUNTANTS
Rule 2001. Appointment of Interim Trustee Before Order
for Relief in a Chapter 7 Liquidation Case
(a) Appointment. At any time following the commencement of an involuntary liquidation
case and before an order for relief, the court on written motion of a party in
interest may order the appointment of an interim trustee under § 303(g) of the
Code. The motion shall set forth the necessity for the appointment and may be
granted only after hearing on notice to the debtor, the petitioning creditors,
the
(b) Bond of Movant. An interim trustee may not be appointed under this rule unless the
movant furnishes a bond in an amount approved by the court, conditioned to
indemnify the debtor for costs, attorney's fee, expenses, and damages allowable
under § 303(i) of the Code.
(c) Order of Appointment. The order directing the appointment of an interim
trustee shall state the reason the appointment is necessary and shall specify
the trustee's duties.
(d) Turnover and Report. Following qualification of the trustee selected under
§ 702 of the Code, the interim trustee, unless otherwise ordered, shall (1)
forthwith deliver to the trustee all the records and property of the estate in
possession or subject to control of the interim trustee and, (2) within 30 days
thereafter file a final report and account.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 2002. Notices to Creditors, Equity Security
Holders, Administrators in Foreign Proceedings, Persons Against Whom
Provisional Relief is Sought in Ancillary and Other Cross-Border Cases,
(a) Twenty-One-Day Notices to Parties in Interest. Except as provided in subdivisions (h), (i), (l), (p),
and (q) of this rule, the clerk, or some other person as the court may direct,
shall give the debtor, the trustee, all creditors and indenture trustees at
least 21 days' notice by mail of:
(1) the meeting of creditors under § 341 or § 1104(b)
of the Code, which notice, unless the court orders otherwise, shall include the
debtor's employer identification number, Social Security number, and any other
federal taxpayer identification number;
(2) a proposed use, sale, or lease of property of the
estate other than in the ordinary course of business, unless the court for
cause shown shortens the time or directs another method of giving notice;
(3) the hearing on approval of a compromise or
settlement of a controversy other than approval of an agreement pursuant to
Rule 4001(d), unless the court for cause shown directs that notice not be sent;
(4) in a chapter 7 liquidation, a chapter 11
reorganization case, or a chapter 12 family farmer debt adjustment case, the
hearing on the dismissal of the case or the conversion of the case to another
chapter, unless the hearing is under § 707(a)(3) or § 707(b) or is on dismissal
of the case for failure to pay the filing fee;
(5) the time fixed to accept or reject a proposed
modification of a plan;
(6) a hearing on any entity's request for compensation
or reimbursement of expenses if the request exceeds $1,000;
(7) the time fixed for filing proofs of claims
pursuant to Rule 3003(c); and
(8) the time fixed for filing objections and the
hearing to consider confirmation of a chapter 12 plan.
(b) Twenty-Eight-Day Notices to Parties in Interest. Except as provided in subdivision (l) of this rule,
the clerk, or some other person as the court may direct, shall give the debtor,
the trustee, all creditors and indenture trustees not less than 28 days notice
by mail of the time fixed (1) for filing objections and the hearing to consider
approval of a disclosure statement or, under § 1125(f), to make a final
determination whether the plan provides adequate information so that a separate
disclosure statement is not necessary; and (2) for filing objections and the
hearing to consider confirmation of a chapter 9, chapter 11, or chapter 13
plan.
(c) Content of Notice.
(1) Proposed Use,
(2) Notice of Hearing on Compensation. The
notice of a hearing on an application for compensation or reimbursement of
expenses required by subdivision (a)(6) of this rule shall identify the
applicant and the amounts requested.
(3) Notice of Hearing on Confirmation When Plan
Provides for an Injunction. If a plan provides for an injunction against
conduct not otherwise enjoined under the Code, the notice required under Rule
2002(b)(2) shall:
(A) include in conspicuous language (bold, italic, or
underlined text) a statement that the plan proposes an injunction;
(B) describe briefly the nature of the injunction; and
(C) identify the entities that would be subject to the
injunction.
(d) Notice to Equity Security Holders. In a chapter 11 reorganization case, unless otherwise
ordered by the court, the clerk, or some other person as the court may direct,
shall in the manner and form directed by the court give notice to all equity
security holders of (1) the order for relief; (2) any meeting of equity
security holders held pursuant to § 341 of the Code; (3) the hearing on the
proposed sale of all or substantially all of the debtor's assets; (4) the
hearing on the dismissal or conversion of a case to another chapter; (5) the
time fixed for filing objections to and the hearing to consider approval of a
disclosure statement; (6) the time fixed for filing objections to and the
hearing to consider confirmation of a plan; and (7) the time fixed to accept or
reject a proposed modification of a plan.
(e) Notice of No Dividend. In a chapter 7 liquidation case, if it appears from
the schedules that there are no assets from which a dividend can be paid, the
notice of the meeting of creditors may include a
statement to that effect; that it is unnecessary to
file claims; and that if sufficient assets become available for the payment of
a dividend, further notice will be given for the filing of claims.
(f) Other Notices. Except as provided in subdivision (l) of this rule, the clerk, or some
other person as the court may direct, shall give the debtor, all creditors, and
indenture trustees notice by mail of:
(1) the order for relief;
(2) the dismissal or the conversion of the case to
another chapter, or the suspension of proceedings under § 305;
(3) the time allowed for filing claims pursuant to
Rule 3002;
(4) the time fixed for filing a complaint objecting to
the debtor's discharge pursuant to § 727 of the Code as provided in Rule 4004;
(5) the time fixed for filing a complaint to determine
the dischargeability of a debt pursuant to § 523 of the Code as provided in
Rule 4007;
(6) the waiver, denial, or revocation of a discharge
as provided in Rule 4006;
(7) entry of an order confirming a chapter 9, 11, or
12 plan;
(8) a summary of the trustee's final report in a
chapter 7 case if the net proceeds realized exceed $1,500;
(9) a notice under Rule 5008 regarding the presumption
of abuse;
(10) a statement under § 704(b)(1) as to whether the
debtor's case would be presumed to be an abuse under § 707(b); and
(11) the time to request a delay in the entry of the
discharge under §§ 1141(d)(5)(C), 1228(f), and 1328(h).
Notice of the time fixed for accepting or rejecting a
plan pursuant to Rule 3017(c) shall be given in accordance with Rule 3017(d).
(g) Addressing Notices.
(1) Notices required to be mailed under Rule 2002 to a
creditor, indenture trustee, or equity security holder shall be addressed as
such entity or an authorized agent has directed in its last request filed in
the particular case. For the purposes of this subdivision —
(A) a proof of claim filed by a creditor or indenture
trustee that designates a mailing address constitutes a filed request to mail
notices to that address, unless a notice of no dividend has been given under
Rule 2002(e) and a later notice of possible dividend under Rule 3002(c)(5) has
not been given; and
(B) a proof of interest filed by an equity security
holder that designates a mailing address constitutes a filed request to mail
notices to that address.
(2) Except as provided in § 342(f) of the Code, if a
creditor or indenture trustee has not filed a request designating a mailing
address under Rule 2002(g)(1) or Rule 5003(e), the notices shall be mailed to
the address shown on the list of creditors or schedule of liabilities,
whichever is filed later. If an equity security holder has not filed a request
designating a mailing address under Rule 2002(g)(1) or Rule 5003(e), the
notices shall be mailed to the address shown on the list of equity security
holders.
(3) If a list or schedule filed under Rule 1007
includes the name and address of a legal representative of an infant or
incompetent person, and a person other than that representative files a request
or proof of claim designating a name and mailing address that differs from the
name and address of the representative included in the list or schedule, unless
the court orders otherwise, notices under Rule 2002 shall be mailed to the
representative included in the list or schedules and to the name and address
designated in the request or proof of claim.
(4) Notwithstanding Rule 2002(g)(1)-(3), an entity and
a notice provider may agree that when the notice provider is directed by the
court to give a notice, the notice provider shall give the notice to the entity
in the manner agreed to and at the address or addresses the entity supplies to
the notice provider. That address is conclusively presumed to be a proper
address for the notice. The notice provider's failure to use the supplied
address does not invalidate any notice that is otherwise effective under applicable
law.
(5) A creditor may treat a notice as not having been
brought to the creditor's attention under § 342(g)(1) only if, prior to
issuance of the notice, the creditor has filed a statement that designates the
name and address of the person or organizational subdivision of the creditor
responsible for receiving notices under the Code, and that describes the
procedures established by the creditor to cause such notices to be delivered to
the designated person or subdivision.
(h) Notices to Creditors Whose Claims Are Filed. In a chapter 7 case, after 90 days following the first
date set for the meeting of creditors under § 341 of the Code, the court may
direct that all notices required by subdivision (a) of this rule be mailed only
to the debtor, the trustee, all indenture trustees, creditors that hold claims
for which proofs of claim have been filed, and creditors, if any, that are
still permitted to file claims by reason of an extension granted pursuant to
Rule 3002(c)(1) or (c)(2). In a case where notice of insufficient assets to pay
a dividend has been given to creditors pursuant to subdivision (e) of this
rule, after 90 days following the mailing of a notice of the time for filing
claims pursuant to Rule 3002(c)(5), the court may direct that notices be mailed
only to the entities specified in the preceding sentence.
(i) Notices to Committees. Copies of all notices required to be mailed pursuant
to this rule shall be mailed to the committees elected under § 705 or appointed
under § 1102 of the Code or to their authorized agents. Notwithstanding the
foregoing subdivisions, the court may order that notices required by
subdivision (a)(2), (3) and (6) of this rule be transmitted to the United
States trustee and be mailed only to the committees elected under § 705 or
appointed under § 1102 of the Code or to their authorized agents and to the
creditors and equity security holders who serve on the trustee or debtor in
possession and file a request that all notices be mailed to them. A committee
appointed under § 1114 shall receive copies of all notices required by
subdivisions (a)(1), (a)(5), (b), (f)(2), and (f)(7), and such other notices as
the court may direct.
(j) Notices to the
(k) Notices to
(l) Notice by Publication. The court may order notice by publication if it finds
that notice by mail is impracticable or that it is desirable to supplement the
notice.
(m) Orders Designating Matter of Notices. The court may from time to time enter orders
designating the matters in respect to which, the entity to whom, and the form
and manner in which notices shall be sent except as otherwise provided by these
rules.
(n) Caption. The
caption of every notice given under this rule shall comply with Rule 1005. The
caption of every notice required to be given by the debtor to a creditor shall
include the information required to be in the notice by § 342(c) of the Code.
(o) Notice of Order for Relief in Consumer Case. In a voluntary case commenced by an individual debtor
whose debts are primarily consumer debts, the clerk or some other person as the
court may direct shall give the trustee and all creditors notice by mail of the
order for relief within 21 days from the date thereof.
(p) Notice to a Creditor with a Foreign Address.
(1) If, at the request of the United States trustee or
a party in interest, or on its own initiative, the court finds that a notice
mailed within the time prescribed by these rules would not be sufficient to
give a creditor with a foreign address to which notices under these rules are
mailed reasonable notice under the circumstances, the court may order that the
notice be supplemented with notice by other means or that the time prescribed
for the notice by mail be enlarged.
(2) Unless the court for cause orders otherwise, a
creditor with a foreign address to which notices under this rule are mailed
shall be given at least 30 days' notice of the time fixed for filing a proof of
claim under Rule 3002(c) or Rule 3003(c).
(3) Unless the court for cause orders otherwise, the
mailing address of a creditor with a foreign address shall be determined under
Rule 2002(g).
(q) Notice of Petition for Recognition of Foreign
Proceeding and of Court's Intention to Communicate with Foreign Courts and
Foreign Representatives.
(1) Notice of Petition for Recognition. The
clerk, or some other person as the court may direct, shall forthwith give the
debtor, all persons or bodies authorized to administer foreign proceedings of
the debtor, all entities against whom provisional relief is being sought under
§ 1519 of the Code, all parties to litigation pending in the United States in
which the debtor is a party at the time of the filing of the petition, and such
other entities as the court may direct, at least 21 days' notice by mail of the
hearing on the petition for recognition of a foreign proceeding. The notice shall
state whether the petition seeks recognition as a foreign main proceeding or
foreign nonmain proceeding.
(2) Notice of Court's Intention to Communicate with
Foreign Courts and Foreign Representatives. The clerk, or some other person
as the court may direct, shall give the debtor, all persons or bodies
authorized to administer foreign proceedings of the debtor, all entities
against whom provisional relief is being sought under § 1519 of the Code, all
parties to litigation pending in the United States in which the debtor is a
party at the time of the filing of the petition, and such other entities as the
court may direct, notice by mail of the court's intention to communicate with a
foreign court or foreign representative.
(As amended Pub. L. No. 98-91, § 2(a), Aug. 30, 1983,
97 Stat. 607; Pub. L. No. 98-353, Title III, § 321, July 10, 1984, 98 Stat.
357; Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Aug. 1, 1991; Apr.
22, 1993, eff. Aug. 1, 1993; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 11, 1997,
eff. Dec. 1, 1997; Apr. 29, 1999, eff. Dec. 1, 1999; Apr. 17, 2000, eff. Dec.
1, 2000; Apr. 23, 2001, eff. Dec. 1, 2001; Mar. 27, 2003, eff. Dec. 1, 2003;
Apr. 26, 2004, eff. Dec. 1, 2004; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 23,
2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 2003. Meeting of Creditors or Equity Security
Holders
(a) Date and Place. Except as otherwise provided in § 341(e) of the Code, in a chapter 7
liquidation or a chapter 11 reorganization case, the United States trustee shall
call a meeting of creditors to be held no fewer than 21 and no more than 40
days after the order for relief. In a chapter 12 family farmer's debt
adjustment case, the
designates a place for the meeting which is not
regularly staffed by the United States trustee or an assistant who may preside
at the meeting, the meeting may be held not more than 60 days after the order
for relief.
(b) Order of Meeting.
(1) Meeting of Creditors. The
(2) Meeting of Equity Security Holders. If the
(3) Right to Vote. In a chapter 7 liquidation
case, a creditor is entitled to vote at a meeting if, at or before the meeting,
the creditor has filed a proof of claim or a writing setting forth facts
evidencing a right to vote pursuant to § 702(a) of the Code unless objection is
made to the claim or the proof of claim is insufficient on its face. A creditor
of a partnership may file a proof of claim or writing evidencing a right to
vote for the trustee for the estate of a general partner notwithstanding that a
trustee for the estate of the partnership has previously qualified. In the
event of an objection to the amount or allowability of a claim for the purpose
of voting, unless the court orders otherwise, the United States trustee shall
tabulate the votes for each alternative presented by the dispute and, if
resolution of such dispute is necessary to determine the result of the
election, the tabulations for each alternative shall be reported to the court.
(c) Record of Meeting. Any examination under oath at the meeting of creditors
held pursuant to § 341(a) of the Code shall be recorded verbatim by the United
States trustee using electronic sound recording equipment or other means of
recording, and such record shall be preserved by the United States trustee and
available for public access until two years after the conclusion of the meeting
of creditors. Upon request of any entity, the
(d) Report of Election and Resolution of Disputes in a
Chapter 7 Case.
(1) Report of Undisputed Election. In a chapter
7 case, if the election of a trustee or a member of a creditors' committee is
not disputed, the
(2) Disputed Election. If the election is
disputed, the
(e) Adjournment. The meeting may be adjourned from time to time by announcement at the
meeting of the adjourned date and time without further written notice.
(f) Special Meetings. The
(g) Final Meeting. If the
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993; Apr. 29, 1999, eff.
Dec. 1, 1999; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 23, 2008, eff. Dec. 1,
2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 2004. Examination
(a) Examination on Motion. On motion of any party in interest, the court may
order the examination of any entity.
(b) Scope of Examination. The examination of an entity under this rule or of the
debtor under § 343 of the Code may relate only to the acts, conduct, or
property or to the liabilities and financial condition of the debtor, or to any
matter which may affect the administration of the debtor's estate, or to the
debtor's right to a discharge. In a family farmer's debt adjustment case under
chapter 12, an individual's debt adjustment case under chapter 13, or a
reorganization case under chapter 11 of the Code, other than for the
reorganization of a railroad, the examination may also relate to the operation
of any business and the desirability of its continuance, the source of any
money or property acquired or to be acquired by the debtor for purposes of
consummating a plan and the consideration given or offered therefor, and any
other matter relevant to the case or to the formulation of a plan.
(c) Compelling Attendance and Production of Documents.
The attendance of an entity for
examination and for the production of documents, whether the examination is to
be conducted within or without the district in which the case is pending, may
be compelled as provided in Rule 9016 for the attendance of a witness at a
hearing or trial. As an officer of the court, an attorney may issue and sign a
subpoena on behalf of the court for the district in which the examination is to
be held if the attorney is admitted to practice in that court or in the court
in which the case is pending.
(d) Time and Place of Examination of Debtor. The court may for cause shown and on terms as it may
impose order the debtor to be examined under this rule at any time or place it
designates, whether within or without the district wherein the case is pending.
(e) Mileage. An
entity other than a debtor shall not be required to attend as a witness unless
lawful mileage and witness fee for one day's attendance shall be first
tendered. If the debtor resides more than 100 miles from the place of
examination when required to appear for an examination under this rule, the
mileage allowed by law to a witness shall be tendered for any distance more
than 100 miles from the debtor's residence at the date of the filing of the
first petition commencing a case under the Code or the residence at the time
the debtor is required to appear for the examination, whichever is the lesser.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 29, 2002, eff. Dec. 1, 2002.)
Rule 2005. Apprehension and Removal of Debtor to
Compel Attendance for Examination
(a) Order to Compel Attendance for Examination. On motion of any party in interest supported by an
affidavit alleging (1) that the examination of the debtor is necessary for the
proper administration of the estate and that there is reasonable cause to
believe that the debtor is about to leave or has left the debtor's residence or
principal place of business to avoid examination, or (2) that the debtor has
evaded service of a subpoena or of an order to attend for examination, or (3)
that the debtor has willfully disobeyed a subpoena or order to attend for
examination, duly served, the court may issue to the marshal, or some other
officer authorized by law, an order directing the officer to bring the debtor
before the court without unnecessary delay. If, after hearing, the court finds
the allegations to be true, the court shall thereupon cause the debtor to be
examined forthwith. If necessary, the court shall fix conditions for further
examination and for the debtor's obedience to all orders made in reference
thereto.
(b) Removal. Whenever
any order to bring the debtor before the court is issued under this rule and
the debtor is found in a district other than that of the court issuing the
order, the debtor may be taken into custody under the order and removed in
accordance with the following rules:
(1) If the debtor is taken into custody under the order
at a place less than 100 miles from the place of issue of the order, the debtor
shall be brought forthwith before the court that issued the order.
(2) If the debtor is taken into custody under the
order at a place 100 miles or more from the place of issue of the order, the
debtor shall be brought without unnecessary delay before the nearest available
United States magistrate judge, bankruptcy judge, or district judge. If, after
hearing, the magistrate judge, bankruptcy judge, or district judge finds that an
order has issued under this rule and that the person in custody is the debtor,
or if the person in custody waives a hearing, the magistrate judge, bankruptcy
judge, or district judge shall order removal and the person in custody shall be
released on conditions ensuring prompt appearance before the court that issued
the order to compel the attendance.
(c) Conditions of Release. In determining what conditions will reasonably assure
attendance or obedience under subdivision (a) of this rule or appearance under
subdivision (b) of this rule, the court shall be governed by the provisions and
policies of title 18, U.S.C., § 3146(a) and (b).
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 22,
1993, eff. Aug. 1, 1993.)
Rule 2006. Solicitation and Voting of Proxies in
Chapter 7 Liquidation Cases
(a) Applicability. This rule applies only in a liquidation case pending under chapter 7 of
the Code.
(b) Definitions.
(1) Proxy. A proxy is a written power of
attorney authorizing any entity to vote the claim or otherwise act as the owner's
attorney in fact in connection with the administration of the estate.
(2) Solicitation of Proxy. The solicitation of
a proxy is any communication, other than one from an attorney to a regular
client who owns a claim or from an attorney to the owner of a claim who has
requested the attorney to represent the owner, by which a creditor is asked,
directly or indirectly, to give a proxy after or in contemplation of the filing
of a petition by or against the debtor.
(c) Authorized Solicitation.
(1) A proxy may be solicited only by (A) a creditor
owning an allowable unsecured claim against the estate on the date of the
filing of the petition; (B) a committee elected pursuant to § 705 of the Code;
(C) a committee of creditors selected by a majority in number and amount of
claims of creditors (i) whose claims are not contingent or unliquidated, (ii)
who are not disqualified from voting under § 702(a) of the Code, and (iii) who
were present or represented at a meeting of which all creditors having claims
of over $500 or the 100 creditors having the largest claims had at least seven
days notice in writing and of which meeting written minutes were kept and are
available reporting the names of the creditors present or represented and
voting and the amounts of their claims; or (D) a bona fide trade or credit
association, but such association may solicit only creditors who were its
members or subscribers in good standing and had allowable unsecured claims on
the date of the filing of the petition.
(2) A proxy may be solicited only in writing.
(d) Solicitation Not Authorized. This rule does not permit solicitation (1) in any
interest other than that of general creditors; (2) by or on behalf of any
custodian; (3) by the interim trustee or by or on behalf of any entity not
qualified to vote under § 702(a) of the Code; (4) by or on behalf of an
attorney at law; or (5) by or on behalf of a transferee of a claim for
collection only.
(e) Data Required from Holders of Multiple Proxies. At any time before the voting commences at any meeting
of creditors pursuant to § 341(a) of the Code, or at any other time as the
court may direct, a holder of two or more proxies shall file and transmit to
the United States trustee a verified list of the proxies to be voted and a verified
statement of the pertinent facts and circumstances in connection with the
execution and delivery of each proxy, including:
(1) a copy of the solicitation;
(2) identification of the solicitor, the forwarder, if
the forwarder is neither the solicitor nor the owner of the claim, and the
proxyholder, including their connections with the debtor and with each
other. If the solicitor, forwarder, or proxyholder is
an association, there shall also be included a statement that the creditors
whose claims have been solicited and the creditors whose claims are to be voted
were members or subscribers in good standing and had allowable unsecured claims
on the date of the filing of the petition. If the solicitor, forwarder, or
proxyholder is a committee of creditors, the statement shall also set forth the
date and place the committee was organized, that the committee was organized in
accordance with clause (B) or (C) of paragraph (c)(1) of this rule, the members
of the committee, the amounts of their claims, when the claims were acquired,
the amounts paid therefor, and the extent to which the claims of the committee
members are secured or entitled to priority;
(3) a statement that no consideration has been paid or
promised by the proxyholder for the proxy;
(4) a statement as to whether there is any agreement
and, if so, the particulars thereof, between the proxyholder and any other
entity for the payment of any consideration in connection with voting the
proxy, or for the sharing of compensation with any entity, other than a member
or regular associate of the proxyholder's law firm, which may be allowed the
trustee or any entity for services rendered in the case, or for the employment
of any person as attorney, accountant, appraiser, auctioneer, or other employee
for the estate;
(5) if the proxy was solicited by an entity other than
the proxyholder, or forwarded to the holder by an entity who is neither a
solicitor of the proxy nor the owner of the claim, a statement signed and
verified by the solicitor or forwarder that no consideration has been paid or
promised for the proxy, and whether there is any agreement, and, if so, the
particulars thereof, between the solicitor or forwarder and any other entity
for the payment of any consideration in connection with voting the proxy, or
for sharing compensation with any entity other than a member or regular
associate of the solicitor's or forwarder's law firm which may be allowed the
trustee or any entity for services rendered in the case, or for the employment
of any person as attorney, accountant, appraiser, auctioneer, or other employee
for the estate;
(6) if the solicitor, forwarder, or proxyholder is a
committee, a statement signed and verified by each member as to the amount and
source of any consideration paid or to be paid to such member in connection
with the case other than by way of dividend on the member's claim.
(f) Enforcement of Restrictions on Solicitation. On motion of any party in interest or on its own
initiative, the court may determine whether there has been a failure to comply
with the provisions of this rule or any other impropriety in connection with
the solicitation or voting of a proxy. After notice and a hearing the court may
reject any proxy for cause, vacate any order entered in consequence of the
voting of any proxy which should have been rejected, or take any other
appropriate action.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 2007. Review of Appointment of Creditors'
Committee Organized Before Commencement of the Case
(a) Motion to Review Appointment. If a committee appointed by the United States trustee
pursuant to § 1102(a) of the Code consists of the members of a committee
organized by creditors before the commencement of a chapter 9 or chapter 11
case, on motion of a party in interest and after a hearing on notice to the
United States trustee and other entities as the court may direct, the court may
determine whether the appointment of the committee satisfies the requirements
of § 1102(b)(1) of the Code.
(b) Selection of Members of Committee. The court may find that a committee organized by
unsecured creditors before the commencement of a chapter 9 or chapter 11 case
was fairly chosen if:
(1) it was selected by a majority in number and amount
of claims of unsecured creditors who may vote under § 702(a) of the Code and
were present in person or represented at a meeting of which all creditors
having unsecured claims of over $1,000 or the 100 unsecured creditors having
the largest claims had at least seven days notice in writing, and of which
meeting written minutes reporting the
names of the creditors present or represented and
voting and the amounts of their claims were kept and are available for
inspection;
(2) all proxies voted at the meeting for the elected
committee were solicited pursuant to Rule 2006 and the lists and statements
required by subdivision (e) thereof have been transmitted to the United States
trustee; and
(3) the organization of the committee was in all other
respects fair and proper.
(c) Failure to Comply with Requirements for
Appointment. After a hearing on
notice pursuant to subdivision (a) of this rule, the court shall direct the
United States trustee to vacate the appointment of the committee and may order
other appropriate action if the court finds that such appointment failed to
satisfy the requirements of § 1102(b)(1) of the Code.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 2007.1. Appointment of Trustee or Examiner in a
Chapter 11 Reorganization Case
(a) Order to Appoint Trustee or Examiner. In a chapter 11 reorganization case, a motion for an
order to appoint a trustee or an examiner under § 1104(a) or § 1104(c) of the
Code shall be made in accordance with Rule 9014.
(b) Election of Trustee.
(1) Request for an Election. A request to
convene a meeting of creditors for the purpose of electing a trustee in a
chapter 11 reorganization case shall be filed and transmitted to the United
States trustee in accordance with Rule 5005 within the time prescribed by §
1104(b) of the Code. Pending court approval of the person elected, any person
appointed by the
(2) Manner of Election and Notice. An election
of a trustee under § 1104(b) of the Code shall be conducted in the manner provided
in Rules 2003(b)(3) and 2006. Notice of the meeting of creditors convened under
§ 1104(b) shall be given as provided in Rule 2002. The
(3) Report of Election and Resolution of Disputes.
(A) Report of Undisputed Election. If no dispute
arises out of the election, the
(B) Dispute Arising Out of an Election. If a dispute
arises out of an election, the
(c) Approval of Appointment. An order approving the appointment of a trustee or an
examiner under § 1104(d) of the Code shall be made on application of the United
States trustee. The application
shall state the name of the person appointed and, to
the best of the applicant's knowledge, all the person's connections with the
debtor, creditors, any other parties in interest, their respective attorneys
and accountants, the United States trustee, or persons employed in the office
of the United States trustee. The application shall state the names of the
parties in interest with whom the United States trustee consulted regarding the
appointment. The application shall be accompanied by a verified statement of
the person appointed setting forth the person's connections with the debtor,
creditors, any other party in interest, their respective attorneys and
accountants, the United States trustee, or any person employed in the office of
the United States trustee.
(Added Apr. 30, 1991, eff. Aug. 1, 1991; amended Apr.
11, 1997, eff. Dec. 1, 1997; Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 2007.2. Appointment of Patient Care Ombudsman in
a Health Care Business Case
(a) Order to Appoint Patient Care Ombudsman. In a chapter 7, chapter 9, or chapter 11 case in which
the debtor is a health care business, the court shall order the appointment of
a patient care ombudsman under § 333 of the Code, unless the court, on motion
of the United States trustee or a party in interest filed no later than 21 days
after the commencement of the case or within another time fixed by the court,
finds that the appointment of a patient care ombudsman is not necessary under
the specific circumstances of the case for the protection of patients.
(b) Motion for Order to Appoint Ombudsman. If the court has found that the appointment of an
ombudsman is not necessary, or has terminated the appointment, the court, on
motion of the United States trustee or a party in interest, may order the appointment
at a later time if it finds that the appointment has become necessary to
protect patients.
(c) Notice of Appointment. If a patient care ombudsman is appointed under § 333,
the United States trustee shall promptly file a notice of the appointment, including
the name and address of the person appointed. Unless the person appointed is a
State Long-Term Care Ombudsman, the notice shall be accompanied by a verified
statement of the person appointed setting forth the person's connections with
the debtor, creditors, patients, any other party in interest, their respective
attorneys and accountants, the United States trustee, and any person employed
in the office of the United States trustee.
(d) Termination of Appointment. On motion of the United States trustee or a party in
interest, the court may terminate the appointment of a patient care ombudsman
if the court finds that the appointment is not necessary to protect patients.
(e) Motion. A
motion under this rule shall be governed by Rule 9014. The motion shall be
transmitted to the United States trustee and served on: the debtor; the
trustee; any committee elected under § 705 or appointed under § 1102 of the
Code or its authorized agent, or, if the case is a chapter 9 municipality case
or a chapter 11 reorganization case and no committee of unsecured creditors has
been appointed under § 1102, on the creditors included on the list filed under
Rule 1007(d); and such other entities as the court may direct.
(Added Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 2008. Notice to Trustee of Selection
The United States trustee shall immediately notify the
person selected as trustee how to qualify and, if applicable, the amount of the
trustee's bond. A trustee that has filed a blanket bond pursuant to Rule 2010
and has been selected as trustee in a chapter 7, chapter 12, or chapter 13 case
that does not notify the court and the United States trustee in writing of
rejection of the office within seven days after receipt of notice of selection
shall be deemed to have accepted the office. Any other person selected as
trustee shall notify the court and the United States trustee in writing of
acceptance of the office within seven days after receipt of notice of selection
or shall be deemed to have rejected the office.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 2009. Trustees for Estates When Joint
Administration Ordered
(a) Election of Single Trustee for Estates Being
Jointly Administered. If the court
orders a joint administration of two or more estates under Rule 1015(b),
creditors may elect a single trustee for the estates being jointly
administered, unless the case is under subchapter V of chapter 7 of the Code.
(b) Right of Creditors to Elect Separate Trustee. Notwithstanding entry of an order for joint
administration under Rule 1015(b), the creditors of any debtor may elect a
separate trustee for the estate of the debtor as provided in § 702 of the Code,
unless the case is under subchapter V of chapter 7.
(c) Appointment of Trustees for Estates Being Jointly
Administered.
(1) Chapter 7 Liquidation Cases. Except in a
case governed by subchapter V of chapter 7, the United States trustee may appoint
one or more interim trustees for estates being jointly administered in chapter
7 cases.
(2) Chapter 11 Reorganization Cases. If the
appointment of a trustee is ordered, the United States trustee may appoint one
or more trustees for estates being jointly administered in chapter 11 cases.
(3) Chapter 12 Family Farmer's Debt Adjustment
Cases. The United States trustee may appoint one or more trustees for
estates being jointly administered in chapter 12 cases.
(4) Chapter 13 Individual's Debt Adjustment Cases. The
United States trustee may appoint one or more trustees for estates being
jointly administered in chapter 13 cases.
(d) Potential Conflicts of Interest. On a showing that creditors or equity security holders
of the different estates will be prejudiced by conflicts of interest of a
common trustee who has been elected or appointed, the court shall order the
selection of separate trustees for estates being jointly administered.
(e) Separate Accounts. The trustee or trustees of estates being jointly administered
shall keep separate accounts of the property and distribution of each estate.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Mar. 27, 2003, eff. Dec. 1, 2003.)
Rule 2010. Qualification by Trustee; Proceeding on Bond
(a) Blanket Bond. The United States trustee may authorize a blanket bond in favor of the
United States conditioned on the faithful performance of official duties by the
trustee or trustees to cover (1) a person who qualifies as trustee in a number
of cases, and (2) a number of trustees each of whom qualifies in a different
case.
(b) Proceeding on Bond. A proceeding on the trustee's bond may be brought by
any party in interest in the name of the United States for the use of the
entity injured by the breach of the condition.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 2011. Evidence of Debtor in Possession or
Qualification of Trustee
(a) Whenever
evidence is required that a debtor is a debtor in possession or that a trustee
has qualified, the clerk may so certify and the certificate shall constitute
conclusive evidence of that fact.
(b) If a
person elected or appointed as trustee does not qualify within the time
prescribed by § 322(a) of the Code, the clerk shall so notify the court and the
United States trustee.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 2012. Substitution of Trustee or Successor
Trustee; Accounting
(a) Trustee. If
a trustee is appointed in a chapter 11 case or the debtor is removed as debtor
in possession in a chapter 12 case, the trustee is substituted automatically
for the debtor in possession as a party in any pending action, proceeding, or
matter.
(b) Successor Trustee. When a trustee dies, resigns, is removed, or otherwise
ceases to hold office during the pendency of a case under the Code (1) the
successor is automatically substituted as a party in any pending action,
proceeding, or matter; and (2) the successor trustee shall prepare, file, and
transmit to the United States trustee an accounting of the prior administration
of the estate.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 2013. Public Record of Compensation Awarded to
Trustees, Examiners, and Professionals
(a) Record to Be Kept. The clerk shall maintain a public record listing fees
awarded by the court (1) to trustees and attorneys, accountants, appraisers,
auctioneers and other professionals employed by trustees, and (2) to examiners.
The record shall include the name and docket number of the case, the name of
the individual or firm receiving the fee and the amount of the fee awarded. The
record shall be maintained chronologically and shall be kept current and open
to examination by the public without charge. “Trustees,” as used in this rule,
does not include debtors in possession.
(b) Summary of Record. At the close of each annual period, the clerk shall
prepare a summary of the public record by individual or firm name, to reflect
total fees awarded during the preceding year. The summary shall be open to
examination by the public without charge. The clerk shall transmit a copy of
the summary to the United States trustee.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 2014. Employment of Professional Persons
(a) Application for an Order of Employment. An order approving the employment of attorneys,
accountants, appraisers, auctioneers, agents, or other professionals pursuant to
§ 327, § 1103, or § 1114 of the Code shall be made only on application of the
trustee or committee. The application shall be filed and, unless the case is a
chapter 9 municipality case, a copy of the application shall be transmitted by
the applicant to the United States trustee. The application shall state the
specific facts showing the necessity for the employment, the name of the person
to be employed, the reasons for the selection, the professional services to be
rendered, any proposed arrangement for compensation, and, to the best of the
applicant's knowledge, all of the person's connections with the debtor,
creditors, any other party in interest, their respective attorneys and
accountants, the United States trustee, or any person employed in the office of
the United States trustee. The application shall be accompanied by a verified
statement of the person to be employed setting forth the person's connections
with the debtor, creditors, any other party in interest, their respective
attorneys and accountants, the United States trustee, or any person employed in
the office of the United States trustee.
(b) Services Rendered by Member or Associate of Firm
of Attorneys or Accountants. If,
under the Code and this rule, a law partnership or corporation is employed as
an attorney, or an accounting partnership or corporation is employed as an
accountant, or if a named attorney or accountant is employed, any partner,
member, or regular associate of the partnership, corporation or individual may
act as attorney or accountant so employed, without further order of the court.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 2015. Duty to Keep Records, Make Reports, and
Give Notice of Case or Change of Status
(a) Trustee or Debtor in Possession. A trustee or debtor in possession shall:
(1) in a chapter 7 liquidation case and, if the court
directs, in a chapter 11 reorganization case file and transmit to the United
States trustee a complete inventory of the property of the debtor within 30
days after qualifying as a trustee or debtor in possession, unless such an
inventory has already been filed;
(2) keep a record of receipts and the disposition of
money and property received;
(3) file the reports and summaries required by §
704(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;
(4) as soon as possible after the commencement of the
case, give notice of the case to every entity known to be holding money or
property subject to withdrawal or order of the debtor, including every bank,
savings or building and loan association, public utility company, and landlord
with whom the debtor has a deposit, and to every insurance company which has
issued a policy having a cash surrender value payable to the debtor, except
that notice need not be given to any entity who has knowledge or has previously
been notified of the case;
(5) in a chapter 11 reorganization case, on or before
the last day of the month after each calendar quarter during which there is a
duty to pay fees under 28 U.S.C. § 1930(a)(6), file and transmit to the United
States trustee a statement of any disbursements made during that quarter and of
any fees payable under 28 U.S.C. § 1930(a)(6) for that quarter; and
(6) in a chapter 11 small business case, unless the
court, for cause, sets another reporting interval, file and transmit to the
United States trustee for each calendar month after the order for relief, on
the appropriate Official Form, the report required by § 308. If the order for
relief is within the first 15 days of a calendar month, a report shall be filed
for the portion of the month that follows the order for relief. If the order
for relief is after the 15th day of a calendar month, the period for the
remainder of the month shall be included in the report for the next calendar
month. Each report shall be filed no later than 21 days after the last day of
the calendar month following the month covered by the report. The obligation to
file reports under this subparagraph terminates on the effective date of the
plan, or conversion or dismissal of the case.
(b) Chapter 12 Trustee and Debtor in Possession. In a chapter 12 family farmer's debt adjustment case,
the debtor in possession shall perform the duties prescribed in clauses (2)–(4)
of subdivision (a) of this rule and, if the court directs, shall file and
transmit to the United States trustee a complete inventory of the property of
the debtor within the time fixed by the court. If the debtor is removed as
debtor in possession, the trustee shall perform the duties of the debtor in
possession prescribed in this paragraph.
(c) Chapter 13 Trustee and Debtor.
(1) Business Cases. In a chapter 13 individual's
debt adjustment case, when the debtor is engaged in business, the debtor shall
perform the duties prescribed by clauses (2)–(4) of subdivision (a) of this
rule and, if the court directs, shall file and transmit to the United States
trustee a complete inventory of the property of the debtor within the time
fixed by the court.
(2) Nonbusiness Cases. In a chapter 13
individual's debt adjustment case, when the debtor is not engaged in business,
the trustee shall perform the duties prescribed by clause (2) of subdivision
(a) of this rule.
(d) Foreign Representative. In a case in which the court has granted recognition
of a foreign proceeding under chapter 15, the foreign representative shall file
any notice required under § 1518 of the Code within 14 days after the date when
the representative becomes aware of the subsequent information.
(e) Transmission of Reports. In a chapter 11 case the court may direct that copies
or summaries of annual reports and copies or summaries of other reports shall
be mailed to the creditors, equity security holders, and indenture trustees.
The court may also direct the publication of summaries of any such reports. A
copy of every report or summary mailed or published pursuant to this
subdivision shall be transmitted to the United States trustee.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 29, 2002, eff.
Dec. 1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1,
2009.)
Rule 2015.1. Patient Care Ombudsman
(a) Reports. A
patient care ombudsman, at least 14 days before making a report under §
333(b)(2) of the Code, shall give notice that the report will be made to the
court, unless the court orders otherwise. The notice shall be transmitted to
the United States trustee, posted conspicuously at the health care facility
that is the subject of the report, and served on: the debtor; the trustee; all
patients; and any committee elected under § 705 or appointed under § 1102 of
the Code or its authorized agent, or, if the case is a chapter 9 municipality
case or a chapter 11 reorganization case and no committee of unsecured
creditors has been appointed under § 1102, on the creditors included on the list
filed under Rule 1007(d); and such other entities as the court may direct. The
notice shall state the date and time when the report will be made, the manner
in which the report will be made, and, if the report is in writing, the name,
address, telephone number, email address, and website, if any, of the person
from whom a copy of the report may be obtained at the debtor's expense.
(b) Authorization to Review Confidential Patient
Records. A motion by a patient care
ombudsman under § 333(c) to review confidential patient records shall be
governed by Rule 9014, served on the patient and any family member or other
contact person whose name and address have been given to the trustee or the debtor
for the purpose of providing information regarding the patient's health care,
and transmitted to the United States trustee subject to applicable
nonbankruptcy law relating to patient privacy. Unless the court orders
otherwise, a hearing on the motion may not be commenced earlier than 14 days
after service of the motion.
(Added Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 2015.2. Transfer of Patient in Health Care
Business Case
Unless the court orders otherwise, if the debtor is a
health care business, the trustee may not transfer a patient to another health
care business under § 704(a)(12) of the Code unless the trustee gives at least
14 days' notice of the transfer to the patient care ombudsman, if any, the
patient, and any family member or other contact person whose name and address
have been given to the trustee or the debtor for the purpose of providing
information regarding the patient's health care. The notice is subject to
applicable nonbankruptcy law relating to patient privacy.
(Added Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 2015.3. Reports of Financial Information on
Entities in Which a Chapter 11 Estate Holds a Controlling or Substantial
Interest
(a) Reporting Requirement. In a chapter 11 case, the trustee or debtor in
possession shall file periodic financial reports of the value, operations, and
profitability of each entity that is not a publicly traded corporation or a
debtor in a case under title 11, and in which the estate holds a substantial or
controlling interest. The reports shall be prepared as prescribed by the
appropriate Official Form, and shall be based upon the most recent information
reasonably available to the trustee or debtor in possession.
(b) Time for Filing; Service. The first report required by this rule shall be filed
no later than seven days before the first date set for the meeting of creditors
under § 341 of the Code. Subsequent reports shall be filed no less frequently
than every six months thereafter, until the effective date of a plan or the
case is dismissed or converted. Copies of the report shall be served on the
United States trustee, any
committee appointed under § 1102 of the Code, and any
other party in interest that has filed a request therefor.
(c) Presumption of Substantial or Controlling
Interest; Judicial Determination. For
purposes of this rule, an entity of which the estate controls or owns at least
a 20 percent interest, shall be presumed to be an entity in which the estate
has a substantial or controlling interest. An entity in which the estate
controls or owns less than a 20 percent interest shall be presumed not to be an
entity in which the estate has a substantial or controlling interest. Upon
motion, the entity, any holder of an interest therein, the United States
trustee, or any other party in interest may seek to rebut either presumption,
and the court shall, after notice and a hearing, determine whether the estate's
interest in the entity is substantial or controlling.
(d) Modification of Reporting Requirement. The court may, after notice and a hearing, vary the
reporting requirement established by subdivision (a) of this rule for cause,
including that the trustee or debtor in possession is not able, after a good
faith effort, to comply with those reporting requirements, or that the
information required by subdivision (a) is publicly available.
(e) Notice and Protective Orders. No later than 14 days before filing the first report
required by this rule, the trustee or debtor in possession shall send notice to
the entity in which the estate has a substantial or controlling interest, and
to all holders—known to the trustee or debtor in possession—of an interest in
that entity, that the trustee or debtor in possession expects to file and serve
financial information relating to the entity in accordance with this rule. The
entity in which the estate has a substantial or controlling interest, or a
person holding an interest in that entity, may request protection of the
information under § 107 of the Code.
(f) Effect of Request. Unless the court orders otherwise, the pendency of a
request under subdivisions (c), (d), or (e) of this rule shall not alter or
stay the requirements of subdivision (a).
(Added Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 2016. Compensation for Services Rendered and
Reimbursement of Expenses
(a) Application for Compensation or Reimbursement. An entity seeking interim or final compensation for
services, or reimbursement of necessary expenses, from the estate shall file an
application setting forth a detailed statement of (1) the services rendered,
time expended and expenses incurred, and (2) the amounts requested. An
application for compensation shall include a statement as to what payments have
theretofore been made or promised to the applicant for services rendered or to
be rendered in any capacity whatsoever in connection with the case, the source
of the compensation so paid or promised, whether any compensation previously
received has been shared and whether an agreement or understanding exists
between the applicant and any other entity for the sharing of compensation
received or to be received for services rendered in or in connection with the
case, and the particulars of any sharing of compensation or agreement or
understanding therefor, except that details of any agreement by the applicant
for the sharing of compensation as a member or regular associate of a firm of
lawyers or accountants shall not be required. The requirements of this
subdivision shall apply to an application for compensation for services
rendered by an attorney or accountant even though the application is filed by a
creditor or other entity. Unless the case is a chapter 9 municipality case, the
applicant shall transmit to the United States trustee a copy of the
application.
(b) Disclosure of Compensation Paid or Promised to
Attorney for Debtor. Every attorney
for a debtor, whether or not the attorney applies for compensation, shall file
and transmit to the United States trustee within 14 days after the order for
relief, or at another time as the court may direct, the statement required by §
329 of the Code including whether the attorney has shared or agreed to share
the compensation with any other entity. The statement shall include the
particulars of any such sharing or agreement to share by the attorney, but the
details of any agreement for the sharing of the compensation with a member or
regular associate of the attorney's law firm shall not be required. A
supplemental
statement shall be filed and transmitted to the United
States trustee within 14 days after any payment or agreement not previously
disclosed.
(c) Disclosure of Compensation Paid or Promised to
Bankruptcy Petition Preparer. Before
a petition is filed, every bankruptcy petition preparer for a debtor shall
deliver to the debtor, the declaration under penalty of perjury required by §
110(h)(2). The declaration shall disclose any fee, and the source of any fee,
received from or on behalf of the debtor within 12 months of the filing of the
case and all unpaid fees charged to the debtor. The declaration shall also
describe the services performed and documents prepared or caused to be prepared
by the bankruptcy petition preparer. The declaration shall be filed with the
petition. The petition preparer shall file a supplemental statement within 14
days after any payment or agreement not previously disclosed.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Mar. 27, 2003, eff. Dec. 1, 2003; Mar. 26, 2009, eff.
Dec. 1, 2009.)
Rule 2017. Examination of Debtor's Transactions with
Debtor's Attorney
(a) Payment or Transfer to Attorney Before Order for
Relief. On motion by any party in
interest or on the court's own initiative, the court after notice and a hearing
may determine whether any payment of money or any transfer of property by the
debtor, made directly or indirectly and in contemplation of the filing of a
petition under the Code by or against the debtor or before entry of the order
for relief in an involuntary case, to an attorney for services rendered or to
be rendered is excessive.
(b) Payment or Transfer to Attorney After Order for
Relief. On motion by the debtor, the
United States trustee or on the court's own initiative, the court after notice
and a hearing may determine whether any payment of money or any transfer of
property, or any agreement therefor, by the debtor to an attorney after entry
of an order for relief in a case under the Code is excessive, whether the
payment or transfer is made or is to be made directly or indirectly, if the
payment, transfer, or agreement therefor is for services in any way related to
the case.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 2018. Intervention; Right to Be Heard
(a) Permissive Intervention. In a case under the Code, after hearing on such notice
as the court directs and for cause shown, the court may permit any interested
entity to intervene generally or with respect to any specified matter.
(b) Intervention by Attorney General of a State. In a chapter 7, 11, 12, or 13 case, the Attorney
General of a State may appear and be heard on behalf of consumer creditors if
the court determines the appearance is in the public interest, but the Attorney
General may not appeal from any judgment, order, or decree in the case.
(c) Chapter 9 Municipality Case. The Secretary of the Treasury of the United States
may, or if requested by the court shall, intervene in a chapter 9 case.
Representatives of the state in which the debtor is located may intervene in a
chapter 9 case with respect to matters specified by the court.
(d) Labor Unions. In a chapter 9, 11, or 12 case, a labor union or employees' association,
representative of employees of the debtor, shall have the right to be heard on
the economic soundness of a plan affecting the interests of the employees. A
labor union or employees' association which exercises its right to be heard
under this subdivision shall not be entitled to appeal any judgment, order, or
decree relating to the plan, unless otherwise permitted by law.
(e) Service on Entities Covered by This Rule. The court may enter orders governing the service of
notice and papers on entities permitted to intervene or be heard pursuant to
this rule.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 2019. Representation of Creditors and Equity
Security Holders in Chapter 9 Municipality and Chapter 11 Reorganization Cases
(a) Data Required. In a chapter 9 municipality or chapter 11 reorganization case, except
with respect to a committee appointed pursuant to § 1102 or 1114 of the Code,
every entity or committee representing more than one creditor or equity
security holder and, unless otherwise directed by the court, every indenture
trustee, shall file a verified statement setting forth (1) the name and address
of the creditor or equity security holder; (2) the nature and amount of the
claim or interest and the time of acquisition thereof unless it is alleged to
have been acquired more than one year prior to the filing of the petition; (3)
a recital of the pertinent facts and circumstances in connection with the
employment of the entity or indenture trustee, and, in the case of a committee,
the name or names of the entity or entities at whose instance, directly or
indirectly, the employment was arranged or the committee was organized or
agreed to act; and (4) with reference to the time of the employment of the
entity, the organization or formation of the committee, or the appearance in
the case of any indenture trustee, the amounts of claims or interests owned by
the entity, the members of the committee or the indenture trustee, the times
when acquired, the amounts paid therefor, and any sales or other disposition
thereof. The statement shall include a copy of the instrument, if any, whereby
the entity, committee, or indenture trustee is empowered to act on behalf of
creditors or equity security holders. A supplemental statement shall be filed
promptly, setting forth any material changes in the facts contained in the
statement filed pursuant to this subdivision.
(b) Failure to Comply; Effect. On motion of any party in interest or on its own
initiative, the court may (1) determine whether there has been a failure to
comply with the provisions of subdivision (a) of this rule or with any other
applicable law regulating the activities and personnel of any entity,
committee, or indenture trustee or any other impropriety in connection with any
solicitation and, if it so determines, the court may refuse to permit that
entity, committee, or indenture trustee to be heard further or to intervene in
the case; (2) examine any representation provision of a deposit agreement,
proxy, trust mortgage, trust indenture, or deed of trust, or committee or other
authorization, and any claim or interest acquired by any entity or committee in
contemplation or in the course of a case under the Code and grant appropriate
relief; and (3) hold invalid any authority, acceptance, rejection, or objection
given, procured, or received by an entity or committee who has not complied
with this rule or with § 1125(b) of the Code.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 2020. Review of Acts by United States Trustee
A proceeding to contest any act or failure to act by
the United States trustee is governed by Rule 9014.
(Added Apr. 30, 1991, eff. Aug. 1, 1991.)
PART III. CLAIMS AND DISTRIBUTION TO CREDITORS AND
EQUITY INTEREST HOLDERS; PLANS
Rule 3001. Proof of Claim
(a) Form and Content. A proof of claim is a written statement setting forth
a creditor's claim. A proof of claim shall conform substantially to the
appropriate Official Form.
(b) Who May Execute. A proof of claim shall be executed by the creditor or
the creditor's authorized agent except as provided in Rules 3004 and 3005.
(c) Claim Based on a Writing. When a claim, or an interest in property of the debtor
securing the claim, is based on a writing, the original or a duplicate shall be
filed with the proof of claim. If the writing has been lost or destroyed, a
statement of the circumstances of the loss or destruction shall be filed with
the claim.
(d) Evidence of Perfection of Security Interest. If a security interest in property of the debtor is
claimed, the proof of claim shall be accompanied by evidence that the security
interest has been perfected.
(e) Transferred Claim.
(1) Transfer of Claim Other Than for Security
Before Proof Filed. If a claim has been transferred other than for security
before proof of the claim has been filed, the proof of claim may be filed only
by the transferee or an indenture trustee.
(2) Transfer of Claim Other Than for Security After
Proof Filed. If a claim other than one based on a publicly traded note,
bond, or debenture has been transferred other than for security after the proof
of claim has been filed, evidence of the transfer shall be filed by the
transferee. The clerk shall immediately notify the alleged transferor by mail
of the filing of the evidence of transfer and that objection thereto, if any,
must be filed within 21 days of the mailing of the notice or within any
additional time allowed by the court. If the alleged transferor files a timely
objection and the court finds, after notice and a hearing, that the claim has
been transferred other than for security, it shall enter an order substituting
the transferee for the transferor. If a timely objection is not filed by the
alleged transferor, the transferee shall be substituted for the transferor.
(3) Transfer of Claim for Security Before Proof
Filed. If a claim other than one based on a publicly traded note, bond, or
debenture has been transferred for security before proof of the claim has been
filed, the transferor or transferee or both may file a proof of claim for the
full amount. The proof shall be supported by a statement setting forth the
terms of the transfer. If either the transferor or the transferee files a proof
of claim, the clerk shall immediately notify the other by mail of the right to
join in the filed claim. If both transferor and transferee file proofs of the
same claim, the proofs shall be consolidated. If the transferor or transferee does
not file an agreement regarding its relative rights respecting voting of the
claim, payment of dividends thereon, or participation in the administration of
the estate, on motion by a party in interest and after notice and a hearing,
the court shall enter such orders respecting these matters as may be
appropriate.
(4) Transfer of Claim for Security After Proof
Filed. If a claim other than one based on a publicly traded note, bond, or
debenture has been transferred for security after the proof of claim has been
filed, evidence of the terms of the transfer shall be filed by the transferee.
The clerk shall immediately notify the alleged transferor by mail of the filing
of the evidence of transfer and that objection thereto, if any, must be filed
within 21 days of the mailing of the notice or within any additional time
allowed by the court. If a timely objection is filed by the alleged transferor,
the court, after notice and a hearing, shall determine whether the claim has
been transferred for security. If the transferor or transferee does not file an
agreement regarding its relative rights respecting voting of the claim, payment
of dividends thereon, or participation in the administration of the estate, on
motion by a party in interest and after notice and a hearing, the court shall
enter such orders respecting these matters as may be appropriate.
(5) Service of Objection or Motion; Notice of
Hearing. A copy of an objection filed pursuant to paragraph (2) or (4) or a
motion filed pursuant to paragraph (3) or (4) of this subdivision together with
a notice of a hearing shall be mailed or otherwise delivered to the transferor
or transferee, whichever is appropriate, at least 30 days prior to the hearing.
(f) Evidentiary Effect. A proof of claim executed and filed in accordance with
these rules shall constitute prima facie evidence of the validity and amount of
the claim.
(g) To the
extent not inconsistent with the United States Warehouse Act or applicable
State law, a warehouse receipt, scale ticket, or similar document of the type
routinely issued as evidence of title by a grain storage facility, as defined
in section 557 of title 11, shall constitute prima facie evidence of the
validity and amount of a claim of ownership of a quantity of grain.
(As amended Pub.L. 98-353, Title III, § 354, July 10,
1984, 98 Stat. 361; Apr. 30, 1991, eff. Aug. 1, 1991; Mar. 26, 2009, eff. Dec.
1, 2009.)
Rule 3002. Filing Proof of Claim or Interest
(a) Necessity for Filing. An unsecured creditor or an equity security holder
must file a proof of claim or interest for the claim or interest to be allowed,
except as provided in Rules 1019(3), 3003, 3004, and 3005.
(b) Place of Filing. A proof of claim or interest shall be filed in
accordance with Rule 5005.
(c) Time for Filing. In a chapter 7 liquidation, chapter 12 family farmer's
debt adjustment, or chapter 13 individual's debt adjustment case, a proof of
claim is timely filed if it is filed not later than 90 days after the first
date set for the meeting of creditors called under § 341(a) of the Code, except
as follows:
(1) A proof of claim filed by a governmental unit,
other than for a claim resulting from a tax return filed under § 1308, is
timely filed if it is filed not later than 180 days after the date of the order
for relief. A proof of claim filed by a governmental unit for a claim resulting
from a tax return filed under § 1308 is timely filed if it is filed no later
than 180 days after the date of the order for relief or 60 days after the date
of the filing of the tax return. The court may, for cause, enlarge the time for
a governmental unit to file a proof of claim only upon motion of the
governmental unit made before expiration of the period for filing a timely
proof of claim.
(2) In the interest of justice and if it will not
unduly delay the administration of the case, the court may extend the time for
filing a proof of claim by an infant or incompetent person or the
representative of either.
(3) An unsecured claim which arises in favor of an
entity or becomes allowable as a result of a judgment may be filed within 30
days after the judgment becomes final if the judgment is for the recovery of
money or property from that entity or denies or avoids the entity's interest in
property. If the judgment imposes a liability which is not satisfied, or a duty
which is not performed within such period or such further time as the court may
permit, the claim shall not be allowed.
(4) A claim arising from the rejection of an executory
contract or unexpired lease of the debtor may be filed within such time as the
court may direct.
(5) If notice of insufficient assets to pay a dividend
was given to creditors under Rule 2002(e), and subsequently the trustee
notifies the court that payment of a dividend appears possible, the clerk shall
give at least 90 days' notice by mail to creditors of that fact and of the date
by which proofs of claim must be filed.
(6) If notice of the time to file a proof of claim has
been mailed to a creditor at a foreign address, on motion filed by the creditor
before or after the expiration of the time, the court may extend the time by
not more than 60 days if the court finds that the notice was insufficient under
the circumstances to give the creditor a reasonable time to file a proof of
claim.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 23, 2008, eff.
Dec. 1, 2008.)
Rule 3003. Filing Proof of Claim or Equity Security
Interest in Chapter 9 Municipality or Chapter 11 Reorganization Cases
(a) Applicability of Rule. This rule applies in chapter 9 and 11 cases.
(b) Schedule of Liabilities and List of Equity
Security Holders.
(1) Schedule of Liabilities. The schedule of
liabilities filed pursuant to § 521(1) of the Code shall constitute prima facie
evidence of the validity and amount of the claims of creditors, unless they are
scheduled as disputed, contingent, or unliquidated. It shall not be necessary
for a creditor or equity security holder to file a proof of claim or interest
except as provided in subdivision (c)(2) of this rule.
(2) List of Equity Security Holders. The list
of equity security holders filed pursuant to Rule 1007(a)(3) shall constitute
prima facie evidence of the validity and amount of the equity security
interests and it shall not be necessary for the holders of such interests to
file a proof of interest.
(c) Filing Proof of Claim.
(1) Who May File. Any creditor or indenture
trustee may file a proof of claim within the time prescribed by subdivision
(c)(3) of this rule.
(2) Who Must File. Any creditor or equity
security holder whose claim or interest is not scheduled or scheduled as
disputed, contingent, or unliquidated shall file a proof of claim or interest
within the time prescribed by subdivision (c)(3) of this rule; any creditor who
fails to do so shall not be treated as a creditor with respect to such claim
for the purposes of voting and distribution.
(3) Time for Filing. The court shall fix and
for cause shown may extend the time within which proofs of claim or interest
may be filed. Notwithstanding the expiration of such time, a proof of claim may
be filed to the extent and under the conditions stated in Rule 3002(c)(2),
(c)(3), (c)(4), and (c)(6).
(4) Effect of Filing Claim or Interest. A proof
of claim or interest executed and filed in accordance with this subdivision
shall supersede any scheduling of that claim or interest pursuant to §
521(a)(1) of the Code.
(5) Filing by Indenture Trustee. An indenture
trustee may file a claim on behalf of all known or unknown holders of
securities issued pursuant to the trust instrument under which it is trustee.
(d) Proof of Right to Record Status. For the purposes of Rules 3017, 3018 and 3021 and for
receiving notices, an entity who is not the record holder of a security may file
a statement setting forth facts which entitle that entity to be treated as the
record holder. An objection to the statement may be filed by any party in
interest.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 3004. Filing of Claims by Debtor or Trustee
If a creditor does not timely file a proof of claim
under Rule 3002(c) or 3003(c), the debtor or trustee may file a proof of the
claim within 30 days after the expiration of the time for filing claims
prescribed by Rule 3002(c) or 3003(c), whichever is applicable. The clerk shall
forthwith give notice of the filing to the creditor, the debtor and the
trustee.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 25,
2005, eff. Dec. 1, 2005.)
Rule 3005. Filing of Claim, Acceptance, or Rejection
by Guarantor, Surety, Indorser, or Other Codebtor
(a) Filing of Claim. If a creditor does not timely file a proof of claim
under Rule 3002(c) or 3003(c), any entity that is or may be liable with the
debtor to that creditor, or who has secured that creditor, may file a proof of
the claim within 30 days after the expiration of the time for filing claims
prescribed by Rule 3002(c) or Rule 3003(c) whichever is applicable. No
distribution shall be made on the claim except on satisfactory proof that the
original debt will be diminished by the amount of distribution.
(b) Filing of Acceptance or Rejection; Substitution of
Creditor. An entity which has filed a
claim pursuant to the first sentence of subdivision (a) of this rule may file
an acceptance or rejection of a plan in the name of the creditor, if known, or
if unknown, in the entity's own name but if the creditor files a proof of claim
within the time permitted by Rule 3003(c) or files a notice prior to
confirmation of a plan of the creditor's intention to act in the creditor's own
behalf, the creditor shall be substituted for the obligor with respect to that
claim.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 25, 2005, eff. Dec. 1, 2005.)
Rule 3006. Withdrawal of Claim; Effect on Acceptance
or Rejection of Plan
A creditor may withdraw a claim as of right by filing
a notice of withdrawal, except as provided in this rule. If after a creditor
has filed a proof of claim an objection is filed thereto or a complaint is
filed against that creditor in an adversary proceeding, or the creditor has
accepted or rejected the plan or
otherwise has participated significantly in the case,
the creditor may not withdraw the claim except on order of the court after a
hearing on notice to the trustee or debtor in possession, and any creditors'
committee elected pursuant to § 705(a) or appointed pursuant to § 1102 of the
Code. The order of the court shall contain such terms and conditions as the
court deems proper. Unless the court orders otherwise, an authorized withdrawal
of a claim shall constitute withdrawal of any related acceptance or rejection
of a plan.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 3007. Objections to Claims
(a) Objections to Claims. An objection to the allowance of a claim shall be in
writing and filed. A copy of the objection with notice of the hearing thereon shall
be mailed or otherwise delivered to the claimant, the debtor or debtor in
possession, and the trustee at least 30 days prior to the hearing.
(b) Demand for Relief Requiring an Adversary
Proceeding. A party in interest shall
not include a demand for relief of a kind specified in Rule 7001 in an
objection to the allowance of a claim, but may include the objection in an
adversary proceeding.
(c) Limitation on Joinder of Claims Objections. Unless otherwise ordered by the court or permitted by
subdivision (d), objections to more than one claim shall not be joined in a
single objection.
(d) Omnibus Objection. Subject to subdivision (e), objections to more than
one claim may be joined in an omnibus objection if all the claims were filed by
the same entity, or the objections are based solely on the grounds that the
claims should be disallowed, in whole or in part, because:
(1) they duplicate other claims;
(2) they have been filed in the wrong case;
(3) they have been amended by subsequently filed
proofs of claim;
(4) they were not timely filed;
(5) they have been satisfied or released during the
case in accordance with the Code, applicable rules, or a court order;
(6) they were presented in a form that does not comply
with applicable rules, and the objection states that the objector is unable to
determine the validity of the claim because of the noncompliance;
(7) they are interests, rather than claims; or
(8) they assert priority in an amount that exceeds the
maximum amount under § 507 of the Code.
(e) Requirements for Omnibus Objection. An omnibus objection shall:
(1) state in a conspicuous place that claimants
receiving the objection should locate their names and claims in the objection;
(2) list claimants alphabetically, provide a
cross-reference to claim numbers, and, if appropriate, list claimants by
category of claims;
(3) state the grounds of the objection to each claim
and provide a cross-reference to the pages in the omnibus objection pertinent
to the stated grounds;
(4) state in the title the identity of the objector
and the grounds for the objections;
(5) be numbered consecutively with other omnibus
objections filed by the same objector; and
(6) contain objections to no more than 100 claims.
(f) Finality of Objection. The finality of any order regarding a claim objection
included in an omnibus objection shall be determined as though the claim had
been subject to an individual objection.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991; Apr. 30,
2007, eff. Dec. 1, 2007.)
Rule 3008. Reconsideration of Claims
A party in interest may move for reconsideration of an
order allowing or disallowing a claim against the estate. The court after a
hearing on notice shall enter an appropriate order.
Rule 3009. Declaration and Payment of Dividends in a
Chapter 7 Liquidation Case
In a chapter 7 case, dividends to creditors shall be
paid as promptly as practicable. Dividend checks shall be made payable to and
mailed to each creditor whose claim has been allowed, unless a power of
attorney authorizing another entity to receive dividends has been executed and
filed in accordance with Rule 9010. In that event, dividend checks shall be
made payable to the creditor and to the other entity and shall be mailed to the
other entity.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 22,
1993, eff. Aug. 1, 1993.)
Rule 3010. Small Dividends and Payments in Chapter 7
Liquidation, Chapter 12 Family Farmer's Debt Adjustment, and Chapter 13
Individual's Debt Adjustment Cases
(a) Chapter 7 Cases. In a chapter 7 case no dividend in an amount less than
$5 shall be distributed by the trustee to any creditor unless authorized by
local rule or order of the court. Any dividend not distributed to a creditor
shall be treated in the same manner as unclaimed funds as provided in § 347 of
the Code.
(b) Chapter 12 and Chapter 13 Cases. In a chapter 12 or chapter 13 case no payment in an
amount less than $15 shall be distributed by the trustee to any creditor unless
authorized by local rule or order of the court. Funds not distributed because
of this subdivision shall accumulate and shall be paid whenever the
accumulation aggregates $15. Any funds remaining shall be distributed with the
final payment.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 3011. Unclaimed Funds in Chapter 7 Liquidation,
Chapter 12 Family Farmer's Debt Adjustment, and Chapter 13 Individual's Debt
Adjustment Cases
The trustee shall file a list of all known names and
addresses of the entities and the amounts which they are entitled to be paid
from remaining property of the estate that is paid into court pursuant to §
347(a) of the Code.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 3012. Valuation of Security
The court may determine the value of a claim secured
by a lien on property in which the estate has an interest on motion of any
party in interest and after a hearing on notice to the holder of the secured
claim and any other entity as the court may direct.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 3013. Classification of Claims and Interests
For the purposes of the plan and its acceptance, the
court may, on motion after hearing on notice as the court may direct, determine
classes of creditors and equity security holders pursuant to §§ 1122,
1222(b)(1), and 1322(b)(1) of the Code.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 3014. Election Under § 1111(b) by Secured
Creditor in Chapter 9 Municipality or Chapter 11 Reorganization Case
An election of application of § 1111(b)(2) of the Code
by a class of secured creditors in a chapter 9 or 11 case may be made at any
time prior to the conclusion of the hearing on the disclosure statement or
within such later time as the court may fix. If the
disclosure statement is conditionally approved pursuant to Rule 3017.1, and a
final hearing on the disclosure statement is not held, the election of
application of § 1111(b)(2) may be made not later than the date fixed pursuant
to Rule 3017.1(a)(2) or another date the court may fix. The election shall be
in writing and signed unless made at the hearing on the disclosure statement.
The election, if made by the majorities required by § 1111(b)(1)(A)(i), shall
be binding on all members of the class with respect to the plan.
(As amended Apr. 11, 1997, eff. Dec. 1, 1997)
Rule 3015. Filing, Objection to Confirmation, and
Modification of a Plan in a Chapter 12 Family Farmer's Debt Adjustment or a
Chapter 13 Individual's Debt Adjustment Case
(a) Chapter 12 Plan. The debtor may file a chapter 12 plan with the
petition. If a plan is not filed with the petition, it shall be filed within
the time prescribed by § 1221 of the Code.
(b) Chapter 13 Plan. The debtor may file a chapter 13 plan with the
petition. If a plan is not filed with the petition, it shall be filed within 14
days thereafter, and such time may not be further extended except for cause
shown and on notice as the court may direct. If a case is converted to chapter
13, a plan shall be filed within 14 days thereafter, and such time may not be
further extended except for cause shown and on notice as the court may direct.
(c) Dating. Every
proposed plan and any modification thereof shall be dated.
(d) Notice and Copies. The plan or a summary of the plan shall be included
with each notice of the hearing on confirmation mailed pursuant to Rule 2002.
If required by the court, the debtor shall furnish a sufficient number of
copies to enable the clerk to include a copy of the plan with the notice of the
hearing.
(e) Transmission to United States Trustee. The clerk shall forthwith transmit to the United States
trustee a copy of the plan and any modification thereof filed pursuant to
subdivision (a) or (b) of this rule.
(f) Objection to Confirmation; Determination of Good
Faith in the Absence of an Objection. An
objection to confirmation of a plan shall be filed and served on the debtor,
the trustee, and any other entity designated by the court, and shall be
transmitted to the United States trustee, before confirmation of the plan. An
objection to confirmation is governed by Rule 9014. If no objection is timely
filed, the court may determine that the plan has been proposed in good faith
and not by any means forbidden by law without receiving evidence on such
issues.
(g) Modification of Plan After Confirmation. A request to modify a plan pursuant to § 1229 or § 1329
of the Code shall identify the proponent and shall be filed together with the
proposed modification. The clerk, or some other person as the court may direct,
shall give the debtor, the trustee, and all creditors not less than 21 days
notice by mail of the time fixed for filing objections and, if an objection is
filed, the hearing to consider the proposed modification, unless the court
orders otherwise with respect to creditors who are not affected by the proposed
modification. A copy of the notice shall be transmitted to the United States
trustee. A copy of the proposed modification, or a summary thereof, shall be
included with the notice. If required by the court, the proponent shall furnish
a sufficient number of copies of the proposed modification, or a summary
thereof, to enable the clerk to include a copy with each notice. Any objection
to the proposed modification shall be filed and served on the debtor, the
trustee, and any other entity designated by the court, and shall be transmitted
to the United States trustee. An objection to a proposed modification is
governed by Rule 9014.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991; Apr. 22,
1993, eff. Aug. 1, 1993; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 3016. Filing of Plan and Disclosure Statement in
a Chapter 9 Municipality or Chapter 11 Reorganization Case
(a) Identification of Plan. Every proposed plan and any modification thereof shall
be dated and, in a chapter 11 case, identified with the name of the entity or
entities submitting or filing it.
(b) Disclosure Statement. In a chapter 9 or 11 case, a disclosure statement
under § 1125 of the Code or evidence showing compliance with § 1126(b) shall be
filed with the plan or within a time fixed by the court, unless the plan is
intended to provide adequate information under § 1125(f)(1). If the plan is
intended to provide adequate information under § 1125(f)(1), it shall be so
designated and Rule 3017.1 shall apply as if the plan is a disclosure
statement.
(c) Injunction Under a Plan. If a plan provides for an injunction against conduct
not otherwise enjoined under the Code, the plan and disclosure statement shall
describe in specific and conspicuous language (bold, italic, or underlined
text) all acts to be enjoined and identify the entities that would be subject
to the injunction.
(d) Standard Form Small Business Disclosure Statement
and Plan. In a small business case,
the court may approve a disclosure statement and may confirm a plan that
conform substantially to the appropriate Official Forms or other standard forms
approved by the court.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 23, 2001, eff.
Dec. 1, 2001; Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 3017. Court Consideration of Disclosure Statement
in a Chapter 9 Municipality or Chapter 11 Reorganization Case
(a) Hearing on Disclosure Statement and Objections. Except as provided in Rule 3017.1, after a disclosure
statement is filed in accordance with Rule 3016(b), the court shall hold a
hearing on at least 28 days' notice to the debtor, creditors, equity security
holders and other parties in interest as provided in Rule 2002 to consider the
disclosure statement and any objections or modifications thereto. The plan and
the disclosure statement shall be mailed with the notice of the hearing only to
the debtor, any trustee or committee appointed under the Code, the Securities
and Exchange Commission and any party in interest who requests in writing a
copy of the statement or plan. Objections to the disclosure statement shall be
filed and served on the debtor, the trustee, any committee appointed under the
Code, and any other entity designated by the court, at any time before the
disclosure statement is approved or by an earlier date as the court may fix. In
a chapter 11 reorganization case, every notice, plan, disclosure statement, and
objection required to be served or mailed pursuant to this subdivision shall be
transmitted to the United States trustee within the time provided in this
subdivision.
(b) Determination on Disclosure Statement. Following the hearing the court shall determine
whether the disclosure statement should be approved.
(c) Dates Fixed for Voting on Plan and Confirmation. On or before approval of the disclosure statement, the
court shall fix a time within which the holders of claims and interests may
accept or reject the plan and may fix a date for the hearing on confirmation.
(d) Transmission and Notice to United States Trustee,
Creditors, and Equity Security Holders. Upon
approval of a disclosure statement, —except to the extent that the court orders
otherwise with respect to one or more unimpaired classes of creditors or equity
security holders— the debtor in possession, trustee, proponent of the plan, or
clerk as the court orders shall mail to all creditors and equity security
holders, and in a chapter 11 reorganization case shall transmit to the United
States trustee,
(1) the plan or a court-approved summary of the plan;
(2) the disclosure statement approved by the court;
(3) notice of the time within which acceptances and
rejections of the plan may be filed; and
(4) any other information as the court may direct,
including any court opinion approving the disclosure statement or a
court-approved summary of the opinion.
In addition, notice of the time fixed for filing
objections and the hearing on confirmation shall be mailed to all creditors and
equity security holders in accordance with Rule 2002(b), and a form of ballot
conforming to the appropriate Official Form shall be mailed to creditors and
equity security holders entitled to vote on the plan. If the court opinion is
not transmitted or only a summary of the plan is transmitted, the court opinion
or the plan shall be provided on request of a party in interest at the plan
proponent's expense. If the court orders that the
disclosure statement and the plan or a summary of the plan shall not be mailed
to any unimpaired class, notice that the class is designated in the plan as
unimpaired and notice of the name and address of the person from whom the plan
or summary of the plan and disclosure statement may be obtained upon request
and at the plan proponent's expense, shall be mailed to members of the
unimpaired class together with the notice of the time fixed for filing
objections to and the hearing on confirmation. For the purposes of this
subdivision, creditors and equity security holders shall include holders of
stock, bonds, debentures, notes, and other securities of record on the date the
order approving the disclosure statement is entered or another date fixed by
the court, for cause, after notice and a hearing.
(e) Transmission to Beneficial Holders of Securities. At the hearing held pursuant to subdivision (a) of
this rule the court shall consider the procedures for transmitting the
documents and information required by subdivision (d) of this rule to
beneficial holders of stock, bonds, debentures, notes and other securities,
determine the adequacy of the procedures, and enter any orders the court deems
appropriate.
(f) Notice and Transmission of Documents to Entities
Subject to an Injunction Under a Plan. If
a plan provides for an injunction against conduct not otherwise enjoined under
the Code and an entity that would be subject to the injunction is not a
creditor or equity security holder, at the hearing held under Rule 3017(a), the
court shall consider procedures for providing the entity with:
(1) at least 28 days' notice of the time fixed for
filing objections and the hearing on confirmation of the plan containing the
information described in Rule 2002(c)(3); and
(2) to the extent feasible, a copy of the plan and
disclosure statement.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 23, 2001, eff.
Dec. 1, 2001; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 3017.1. Court Consideration of Disclosure
Statement in a Small Business Case
(a) Conditional Approval of Disclosure Statement. In a small business case, the court may, on application
of the plan proponent or on its own initiative, conditionally approve a
disclosure statement filed in accordance with Rule 3016. On or before
conditional approval of the disclosure statement, the court shall:
(1) fix a time within which the holders of claims and
interests may accept or reject the plan;
(2) fix a time for filing objections to the disclosure
statement;
(3) fix a date for the hearing on final approval of
the disclosure statement to be held if a timely objection is filed; and
(4) fix a date for the hearing on confirmation.
(b) Application of Rule 3017. Rule 3017(a), (b), (c), and (e) do not apply to a
conditionally approved disclosure statement. Rule 3017(d) applies to a
conditionally approved disclosure statement, except that conditional approval
is considered approval of the disclosure statement for the purpose of applying
Rule 3017(d).
(c) Final Approval.
(1) Notice. Notice of the time fixed for filing
objections and the hearing to consider final approval of the disclosure
statement shall be given in accordance with Rule 2002 and may be combined with
notice of the hearing on confirmation of the plan.
(2) Objections. Objections to the disclosure
statement shall be filed, transmitted to the United States trustee, and served
on the debtor, the trustee, any committee appointed under the Code and any
other entity designated by the court at any time before final approval of the
disclosure statement or by an earlier date as the court may fix.
(3) Hearing. If a timely objection to the
disclosure statement is filed, the court shall hold a hearing to consider final
approval before or combined with the hearing on confirmation of the plan.
(Added Apr. 11, 1997, eff. Dec. 1, 1997; amended Apr.
23, 2008, eff. Dec. 1, 2008.)
Rule 3018. Acceptance or Rejection of Plan in a
Chapter 9 Municipality or a Chapter 11 Reorganization Case
(a) Entities Entitled to Accept or Reject Plan; Time
for Acceptance or Rejection. A plan
may be accepted or rejected in accordance with § 1126 of the Code within the
time fixed by the court pursuant to Rule 3017. Subject to subdivision (b) of
this rule, an equity security holder or creditor whose claim is based on a
security of record shall not be entitled to accept or reject a plan unless the
equity security holder or creditor is the holder of record of the security on
the date the order approving the disclosure statement is entered or on another
date fixed by the court, for cause, after notice and a hearing. For cause
shown, the court after notice and hearing may permit a creditor or equity
security holder to change or withdraw an acceptance or rejection.
Notwithstanding objection to a claim or interest, the court after notice and
hearing may temporarily allow the claim or interest in an amount which the
court deems proper for the purpose of accepting or rejecting a plan.
(b) Acceptances or Rejections Obtained Before
Petition. An equity security holder
or creditor whose claim is based on a security of record who accepted or
rejected the plan before the commencement of the case shall not be deemed to
have accepted or rejected the plan pursuant to § 1126(b) of the Code unless the
equity security holder or creditor was the holder of record of the security on
the date specified in the solicitation of such acceptance or rejection for the
purposes of such solicitation. A holder of a claim or interest who has accepted
or rejected a plan before the commencement of the case under the Code shall not
be deemed to have accepted or rejected the plan if the court finds after notice
and hearing that the plan was not transmitted to substantially all creditors
and equity security holders of the same class, that an unreasonably short time
was prescribed for such creditors and equity security holders to accept or reject
the plan, or that the solicitation was not in compliance with § 1126(b) of the
Code.
(c) Form of Acceptance or Rejection. An acceptance or rejection shall be in writing,
identify the plan or plans accepted or rejected, be signed by the creditor or equity
security holder or an authorized agent, and conform to the appropriate Official
Form. If more than one plan is transmitted pursuant to Rule 3017, an acceptance
or rejection may be filed by each creditor or equity security holder for any
number of plans transmitted and if acceptances are filed for more than one
plan, the creditor or equity security holder may indicate a preference or
preferences among the plans so accepted.
(d) Acceptance or Rejection by Partially Secured
Creditor. A creditor whose claim has
been allowed in part as a secured claim and in part as an unsecured claim shall
be entitled to accept or reject a plan in both capacities.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993; Apr. 11, 1997, eff.
Dec. 1, 1997.)
Rule 3019. Modification of Accepted Plan in a Chapter
9 Municipality or a Chapter 11 Reorganization Case
(a) Modification of Plan Before Confirmation. In a chapter 9 or chapter 11 case, after a plan has
been accepted and before its confirmation, the proponent may file a
modification of the plan. If the court finds after hearing on notice to the
trustee, any committee appointed under the Code, and any other entity
designated by the court that the proposed modification does not adversely
change the treatment of the claim of any creditor or the interest of any equity
security holder who has not accepted in writing the modification, it shall be
deemed accepted by all creditors and equity security holders who have previously
accepted the plan.
(b) Modification of Plan After Confirmation in
Individual Debtor Case. If the debtor
is an individual, a request to modify the plan under § 1127(e) of the Code is
governed by Rule 9014. The request shall identify the proponent and shall be
filed together with the proposed modification. The clerk, or some other person
as the court may direct, shall give the debtor, the trustee, and all creditors
not less than 21 days' notice by mail of the time fixed to file objections and,
if an objection is filed, the hearing to
consider the proposed modification, unless the court
orders otherwise with respect to creditors who are not affected by the proposed
modification. A copy of the notice shall be transmitted to the United States
trustee, together with a copy of the proposed modification. Any objection to
the proposed modification shall be filed and served on the debtor, the
proponent of the modification, the trustee, and any other entity designated by
the court, and shall be transmitted to the United States trustee.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 22,
1993, eff. Aug. 1, 1993; Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff.
Dec. 1, 2009.)
Rule 3020. Deposit; Confirmation of Plan in a Chapter
9 Municipality or Chapter 11 Reorganization Case
(a) Deposit. In
a chapter 11 case, prior to entry of the order confirming the plan, the court
may order the deposit with the trustee or debtor in possession of the
consideration required by the plan to be distributed on confirmation. Any money
deposited shall be kept in a special account established for the exclusive
purpose of making the distribution.
(b) Objection to and Hearing on Confirmation in a
Chapter 9 or Chapter 11 Case.
(1) Objection. An objection to confirmation of
the plan shall be filed and served on the debtor, the trustee, the proponent of
the plan, any committee appointed under the Code, and any other entity
designated by the court, within a time fixed by the court. Unless the case is a
chapter 9 municipality case, a copy of every objection to confirmation shall be
transmitted by the objecting party to the United States trustee within the time
fixed for filing objections. An objection to confirmation is governed by Rule
9014.
(2) Hearing. The court shall rule on
confirmation of the plan after notice and hearing as provided in Rule 2002. If
no objection is timely filed, the court may determine that the plan has been
proposed in good faith and not by any means forbidden by law without receiving
evidence on such issues.
(c) Order of Confirmation.
(1) The order of confirmation shall conform to the
appropriate Official Form. If the plan provides for an injunction against
conduct not otherwise enjoined under the Code, the order of confirmation shall
(1) describe in reasonable detail all acts enjoined; (2) be specific in its
terms regarding the injunction; and (3) identify the entities subject to the
injunction.
(2) Notice of entry of the order of confirmation shall
be mailed promptly to the debtor, the trustee, creditors, equity security
holders, other parties in interest, and, if known, to any identified entity
subject to an injunction provided for in the plan against conduct not otherwise
enjoined under the Code.
(3) Except in a chapter 9 municipality case, notice of
entry of the order of confirmation shall be transmitted to the United States
trustee as provided in Rule 2002(k).
(d) Retained Power. Notwithstanding the entry of the order of confirmation, the court may
issue any other order necessary to administer the estate.
(e) Stay of Confirmation Order. An order confirming a plan is stayed until the
expiration of 14 days after the entry of the order, unless the court orders
otherwise.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993; Apr. 29, 1999, eff.
Dec. 1, 1999; Apr. 23, 2001, eff. Dec. 1, 2001.)
Rule 3021. Distribution Under Plan
Except as provided in Rule 3020(e), after a plan is
confirmed, distribution shall be made to creditors whose claims have been
allowed, to interest holders whose interests have not been disallowed, and to
indenture trustees who have filed claims under Rule 3003(c)(5) that have been
allowed. For purposes of this rule, creditors include holders of bonds,
debentures, notes, and other debt securities, and interest
holders include the holders of stock and other equity
securities, of record at the time of commencement of distribution, unless a
different time is fixed by the plan or the order confirming the plan.
(As amended Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 29,
1999, eff. Dec. 1, 1999.)
Rule 3022. Final Decree in Chapter 11 Reorganization
Case
After an estate is fully administered in a chapter 11
reorganization case, the court, on its own motion or on motion of a party in
interest, shall enter a final decree closing the case.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
PART IV. THE DEBTOR: DUTIES AND BENEFITS
Rule 4001. Relief from Automatic Stay; Prohibiting or
Conditioning the Use, Sale, or Lease of Property; Use of Cash Collateral;
Obtaining Credit; Agreements
(a) Relief from Stay; Prohibiting or Conditioning the
Use, Sale, or Lease of Property.
(1) Motion. A motion for relief from an
automatic stay provided by the Code or a motion to prohibit or condition the
use, sale, or lease of property pursuant to § 363(e) shall be made in
accordance with Rule 9014 and shall be served on any committee elected pursuant
to § 705 or appointed pursuant to § 1102 of the Code or its authorized agent,
or, if the case is a chapter 9 municipality case or a chapter 11 reorganization
case and no committee of unsecured creditors has been appointed pursuant to §
1102, on the creditors included on the list filed pursuant to Rule 1007(d), and
on such other entities as the court may direct.
(2) Ex Parte Relief. Relief from a stay under §
362(a) or a request to prohibit or condition the use, sale, or lease of
property pursuant to § 363(e) may be granted without prior notice only if (A)
it clearly appears from specific facts shown by affidavit or by a verified
motion that immediate and irreparable injury, loss, or damage will result to
the movant before the adverse party or the attorney for the adverse party can
be heard in opposition, and (B) the movant's attorney certifies to the court in
writing the efforts, if any, which have been made to give notice and the
reasons why notice should not be required. The party obtaining relief under
this subdivision and § 362(f) or § 363(e) shall immediately give oral notice
thereof to the trustee or debtor in possession and to the debtor and forthwith
mail or otherwise transmit to such adverse party or parties a copy of the order
granting relief. On two days notice to the party who obtained relief from the
stay without notice or on shorter notice to that party as the court may
prescribe, the adverse party may appear and move reinstatement of the stay or
reconsideration of the order prohibiting or conditioning the use, sale, or
lease of property. In that event, the court shall proceed expeditiously to hear
and determine the motion.
(3) Stay of Order. An order granting a motion
for relief from an automatic stay made in accordance with Rule 4001(a)(1) is
stayed until the expiration of 14 days after the entry of the order, unless the
court orders otherwise.
(b) Use of Cash Collateral.
(1) Motion; Service.
(A) Motion. A motion for authority to use cash
collateral shall be made in accordance with Rule 9014 and shall be accompanied
by a proposed form of order.
(B) Contents. The motion shall consist of or (if the
motion is more than five pages in length) begin with a concise statement of the
relief requested, not to exceed five pages, that lists or summarizes, and sets
out the location within the relevant documents of, all material provisions,
including:
(i) the name of each entity with an interest in the
cash collateral;
(ii) the purposes for the use of the cash collateral;
(iii) the material terms, including duration, of the
use of the cash collateral; and
(iv) any liens, cash payments, or other adequate
protection that will be provided to each entity with an interest in the cash
collateral or, if no additional adequate protection is proposed, an explanation
of why each entity's interest is adequately protected.
(C) Service. The motion shall be served on: (1) any
entity with an interest in the cash collateral; (2) any committee elected under
§ 705 or appointed under § 1102 of the Code, or its authorized agent, or, if
the case is a chapter 9 municipality case or a chapter 11 reorganization case
and no committee of unsecured creditors has been appointed under § 1102, the
creditors included on the list filed under Rule 1007(d); and (3) any other
entity that the court directs.
(2) Hearing. The court may commence a final
hearing on a motion for authorization to use cash collateral no earlier than 14
days after service of the motion. If the motion so requests, the court may
conduct a preliminary hearing before such 14 day period expires, but the court
may authorize the use of only that amount of cash collateral as is necessary to
avoid immediate and irreparable harm to the estate pending a final hearing.
(3) Notice. Notice of hearing pursuant to this
subdivision shall be given to the parties on whom service of the motion is
required by paragraph (1) of this subdivision and to such other entities as the
court may direct.
(c) Obtaining Credit.
(1) Motion; Service.
(A) Motion. A motion for authority to obtain credit
shall be made in accordance with Rule 9014 and shall be accompanied by a copy
of the credit agreement and a proposed form of order.
(B) Contents. The motion shall consist of or (if the
motion is more than five pages in length) begin with a concise statement of the
relief requested, not to exceed five pages, that lists or summarizes, and sets
out the location within the relevant documents of, all material provisions of
the proposed credit agreement and form of order, including interest rate,
maturity, events of default, liens, borrowing limits, and borrowing conditions.
If the proposed credit agreement or form of order includes any of the
provisions listed below, the concise statement shall also: briefly list or
summarize each one; identify its specific location in the proposed agreement
and form of order; and identify any such provision that is proposed to remain
in effect if interim approval is granted, but final relief is denied, as
provided under Rule 4001(c)(2). In addition, the motion shall describe the
nature and extent of each provision listed below:
(i) a grant of priority or a lien on property of the
estate under § 364(c) or (d);
(ii) the providing of adequate protection or priority
for a claim that arose before the commencement of the case, including the
granting of a lien on property of the estate to secure the claim, or the use of
property of the estate or credit obtained under § 364 to make cash payments on
account of the claim;
(iii) a determination of the validity, enforceability,
priority, or amount of a claim that arose before the commencement of the case,
or of any lien securing the claim;
(iv) a waiver or modification of Code provisions or
applicable rules relating to the automatic stay;
(v) a waiver or modification of any entity's authority
or right to file a plan, seek an extension of time in which the debtor has the
exclusive right to file a plan, request the use of cash collateral under §
363(c), or request authority to obtain credit under § 364;
(vi) the establishment of deadlines for filing a plan
of reorganization, for approval of a disclosure statement, for a hearing on
confirmation, or for entry of a confirmation order;
(vii) a waiver or modification of the applicability of
nonbankruptcy law relating to the perfection of a lien on property of the
estate, or on the foreclosure or other enforcement of the lien;
(viii) a release, waiver, or limitation on any claim
or other cause of action belonging to the estate or the trustee, including any
modification of the statute of limitations or other deadline to commence an
action;
(ix) the indemnification of any entity;
(x) a release, waiver, or limitation of any right
under § 506(c); or
(xi) the granting of a lien on any claim or cause of
action arising under §§ 544, 545, 547, 548, 549, 553(b), 723(a), or 724(a).
(C) Service. The motion shall be served on: (1) any
committee elected under § 705 or appointed under § 1102 of the Code, or its
authorized agent, or, if the case is a chapter 9 municipality case or a chapter
11 reorganization case and no committee of unsecured creditors has been
appointed under § 1102, on the creditors included on the list filed under Rule
1007(d); and (2) on any other entity that the court directs.
(2) Hearing. The court may commence a final
hearing on a motion for authority to obtain credit no earlier than 14 days
after service of the motion. If the motion so requests, the court may conduct a
hearing before such 14 day period expires, but the court may authorize the
obtaining of credit only to the extent necessary to avoid immediate and irreparable
harm to the estate pending a final hearing.
(3) Notice. Notice of hearing pursuant to this
subdivision shall be given to the parties on whom service of the motion is
required by paragraph (1) of this subdivision and to such other entities as the
court may direct.
(d) Agreement Relating to Relief from the Automatic
Stay, Prohibiting or Conditioning the Use, Sale, or Lease of Property,
Providing Adequate Protection, Use of Cash Collateral, and Obtaining Credit.
(1) Motion; Service.
(A) Motion. A motion for approval of any of the
following shall be accompanied by a copy of the agreement and a proposed form
of order:
(i) an agreement to provide adequate protection;
(ii) an agreement to prohibit or condition the use,
sale, or lease of property;
(iii) an agreement to modify or terminate the stay
provided for in § 362;
(iv) an agreement to use cash collateral; or
(v) an agreement between the debtor and an entity that
has a lien or interest in property of the estate pursuant to which the entity
consents to the creation of a lien senior or equal to the entity's lien or
interest in such property.
(B) Contents. The motion shall consist of or (if the
motion is more than five pages in length) begin with a concise statement of the
relief requested, not to exceed five pages, that lists or summarizes, and sets
out the location within the relevant documents of, all material provisions of
the agreement. In addition, the concise statement shall briefly list or
summarize, and identify the specific location of, each provision in the
proposed form of order, agreement, or other document of the type listed in
subdivision (c)(1)(B). The motion shall also describe the nature and extent of
each such provision.
(C) Service. The motion shall be served on: (1) any
committee elected under § 705 or appointed under § 1102 of the Code, or its
authorized agent, or, if the case is a chapter 9 municipality case or a chapter
11 reorganization case and no committee of unsecured creditors has been
appointed under § 1102, on the creditors included on the list filed under Rule
1007(d); and (2) on any other entity the court directs.
(2) Objection. Notice of the motion and the
time within which objections may be filed and served on the debtor in
possession or trustee shall be mailed to the parties on whom service is
required by paragraph (1) of this subdivision and to such other entities as the
court may direct. Unless the court fixes a different time, objections may be
filed within 15 days of the mailing of notice.
(3) Disposition; Hearing. If no objection is
filed, the court may enter an order approving or disapproving the agreement
without conducting a hearing. If an objection is filed or if the court
determines a hearing is appropriate, the court shall hold a hearing on no less
than five days' notice to the objector, the movant, the parties on whom service
is required by paragraph (1) of this subdivision and such other entities as the
court may direct.
(4) Agreement in Settlement of Motion. The
court may direct that the procedures prescribed in paragraphs (1), (2), and (3)
of this subdivision shall not apply and the agreement may be approved
without further notice if the court determines that a
motion made pursuant to subdivisions (a), (b), or (c) of this rule was
sufficient to afford reasonable notice of the material provisions of the
agreement and opportunity for a hearing.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 29, 1999, eff. Dec. 1, 1999; Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 4002. Duties of Debtor
(a) In General. In addition to performing other duties prescribed by the Code and
rules, the debtor shall:
(1) attend and submit to an examination at the times
ordered by the court;
(2) attend the hearing on a complaint objecting to
discharge and testify, if called as a witness;
(3) inform the trustee immediately in writing as to
the location of real property in which the debtor has an interest and the name
and address of every person holding money or property subject to the debtor's
withdrawal or order if a schedule of property has not yet been filed pursuant
to Rule 1007;
(4) cooperate with the trustee in the preparation of
an inventory, the examination of proofs of claim, and the administration of the
estate; and
(5) file a statement of any change of the debtor's
address.
(b) Individual Debtor's Duty to Provide Documentation.
(1) Personal Identification. Every individual
debtor shall bring to the meeting of creditors under § 341:
(A) a picture identification issued by a governmental
unit, or other personal identifying information that establishes the debtor's
identity; and
(B) evidence of social-security number(s), or a
written statement that such documentation does not exist.
(2) Financial Information. Every individual
debtor shall bring to the meeting of creditors under § 341, and make available
to the trustee, the following documents or copies of them, or provide a written
statement that the documentation does not exist or is not in the debtor's
possession:
(A) evidence of current income such as the most recent
payment advice;
(B) unless the trustee or the United States trustee
instructs otherwise, statements for each of the debtor's depository and
investment accounts, including checking, savings, and money market accounts,
mutual funds and brokerage accounts for the time period that includes the date
of the filing of the petition; and
(C) documentation of monthly expenses claimed by the
debtor if required by § 707(b)(2)(A) or (B).
(3) Tax Return. At least 7 days before the
first date set for the meeting of creditors under § 341, the debtor shall
provide to the trustee a copy of the debtor's federal income tax return for the
most recent tax year ending immediately before the commencement of the case and
for which a return was filed, including any attachments, or a transcript of the
tax return, or provide a written statement that the documentation does not
exist.
(4) Tax Returns Provided to Creditors. If a
creditor, at least 14 days before the first date set for the meeting of
creditors under § 341, requests a copy of the debtor's tax return that is to be
provided to the trustee under subdivision (b)(3), the debtor, at least 7 days
before the first date set for the meeting of creditors under § 341, shall
provide to the requesting creditor a copy of the return, including any
attachments, or a transcript of the tax return, or provide a written statement
that the documentation does not exist.
(5) Confidentiality of Tax Information. The
debtor's obligation to provide tax returns under Rule 4002(b)(3) and (b)(4) is
subject to procedures for safeguarding the confidentiality of tax information
established by the Director of the Administrative Office of the United States
Courts.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 23,
2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 4003. Exemptions
(a) Claim of Exemptions. A debtor shall list the property claimed as exempt
under § 522 of the Code on the schedule of assets required to be filed by Rule
1007. If the debtor fails to claim exemptions or file the schedule within the
time specified in Rule 1007, a dependent of the debtor may file the list within
30 days thereafter.
(b) Objecting to a Claim of Exemptions.
(1) Except as provided in paragraphs (2) and (3), a party
in interest may file an objection to the list of property claimed as exempt
within 30 days after the meeting of creditors held under § 341(a) is concluded
or within 30 days after any amendment to the list or supplemental schedules is
filed, whichever is later. The court may, for cause, extend the time for filing
objections if, before the time to object expires, a party in interest files a
request for an extension.
(2) The trustee may file an objection to a claim of
exemption at any time prior to one year after the closing of the case if the
debtor fraudulently asserted the claim of exemption. The trustee shall deliver
or mail the objection to the debtor and the debtor's attorney, and to any
person filing the list of exempt property and that person's attorney.
(3) An objection to a claim of exemption based on §
522(q) shall be filed before the closing of the case. If an exemption is first
claimed after a case is reopened, an objection shall be filed before the
reopened case is closed.
(4) A copy of any objection shall be delivered or
mailed to the trustee, the debtor and the debtor's attorney, and the person
filing the list and that person's attorney.
(c) Burden of Proof. In any hearing under this rule, the objecting party
has the burden of proving that the exemptions are not properly claimed. After
hearing on notice, the court shall determine the issues presented by the
objections.
(d) Avoidance by Debtor of Transfers of Exempt
Property. A proceeding by the debtor
to avoid a lien or other transfer of property exempt under § 522(f) of the Code
shall be by motion in accordance with Rule 9014. Notwithstanding the provisions
of subdivision (b), a creditor may object to a motion filed under § 522(f) by
challenging the validity of the exemption asserted to be impaired by the lien.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 23, 2008, eff.
Dec. 1, 2008.)
Rule 4004. Grant or Denial of Discharge
(a) Time for Filing Complaint Objecting to Discharge;
Notice of Time Fixed. In a chapter 7
liquidation case a complaint objecting to the debtor's discharge under § 727(a)
of the Code shall be filed no later than 60 days after the first date set for
the meeting of creditors under § 341(a). In a chapter 11 reorganization case,
the complaint shall be filed no later than the first date set for the hearing
on confirmation. At least 28 days' notice of the time so fixed shall be given
to the United States trustee and all creditors as provided in Rule 2002(f) and
(k), and to the trustee and the trustee's attorney.
(b) Extension of Time. On motion of any party in interest, after hearing on
notice, the court may for cause extend the time to file a complaint objecting
to discharge. The motion shall be filed before the time has expired.
(c) Grant of Discharge.
(1) In a chapter 7 case, on expiration of the time
fixed for filing a complaint objecting to discharge and the time fixed for
filing a motion to dismiss the case under Rule 1017(e), the court shall
forthwith grant the discharge unless:
(A) the debtor is not an individual;
(B) a complaint objecting to the discharge has been
filed;
(C) the debtor has filed a waiver under § 727(a)(10);
(D) a motion to dismiss the case under § 707 is
pending;
(E) a motion to extend the time for filing a complaint
objecting to the discharge is pending;
(F) a motion to extend the time for filing a motion to
dismiss the case under Rule 1017(e)(1) is pending;
(G) the debtor has not paid in full the filing fee
prescribed by 28 U.S.C. § 1930(a) and any other fee prescribed by the Judicial
Conference of the United States under 28 U.S.C. § 1930(b) that is payable to
the clerk upon the commencement of a case under the Code, unless the court has
waived the fees under 28 U.S.C. § 1930(f);
(H) the debtor has not filed with the court a
statement of completion of a course concerning personal financial management as
required by Rule 1007(b)(7);
(I) a motion to delay or postpone discharge under §
727(a)(12) is pending;
(J) a motion to enlarge the time to file a
reaffirmation agreement under Rule 4008(a) is pending;
(K) a presumption has arisen under § 524(m) that a
reaffirmation agreement is an undue hardship; or
(L) a motion is pending to delay discharge, because
the debtor has not filed with the court all tax documents required to be filed
under § 521(f).
(2) Notwithstanding Rule 4004(c)(1), on motion of the
debtor, the court may defer the entry of an order granting a discharge for 30
days and, on motion within that period, the court may defer entry of the order
to a date certain.
(3) If the debtor is required to file a statement
under Rule 1007(b)(8), the court shall not grant a discharge earlier than 30
days after the statement is filed.
(d) Applicability of Rules in Part VII. A proceeding commenced by a complaint objecting to
discharge is governed by Part VII of these rules.
(e) Order of Discharge. An order of discharge shall conform to the appropriate
Official Form.
(f) Registration in Other Districts. An order of discharge that has become final may be
registered in any other district by filing a certified copy of the order in the
office of the clerk of that district. When so registered the order of discharge
shall have the same effect as an order of the court of the district where
registered.
(g) Notice of Discharge. The clerk shall promptly mail a copy of the final
order of discharge to those specified in subdivision (a) of this rule.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 29, 1999, eff.
Dec. 1, 1999; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1,
2002; Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 4005. Burden of Proof in Objecting to Discharge
At the trial on a complaint objecting to a discharge,
the plaintiff has the burden of proving the objection.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 4006. Notice of No Discharge
If an order is entered: denying a discharge; revoking
a discharge; approving a waiver of discharge; or, in the case of an individual
debtor, closing the case without the entry of a discharge, the clerk shall
promptly notify all parties in interest in the manner provided by Rule 2002.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 23,
2008, eff. Dec. 1, 2008.)
Rule 4007. Determination of Dischargeability of a Debt
(a) Persons Entitled to File Complaint. A debtor or any creditor may file a complaint to
obtain a determination of the dischargeability of any debt.
(b) Time for Commencing Proceeding Other Than Under §
523(c) of the Code. A complaint other
than under § 523(c) may be filed at any time. A case may be reopened without
payment of an additional filing fee for the purpose of filing a complaint to
obtain a determination under this rule.
(c) Time for Filing Complaint Under § 523(c) in a
Chapter 7 Liquidation, Chapter 11 Reorganization, Chapter 12 Family Farmer's
Debt Adjustment Case, or Chapter 13 Individual's Debt Adjustment Case; Notice
of Time Fixed. Except as otherwise
provided in subdivision (d), a complaint to determine the dischargeability of a
debt under § 523(c) shall be filed no later than 60 days after the first date
set for the meeting of creditors under § 341(a). The court shall give all
creditors no less than 30 days' notice of the time so fixed in the manner
provided in Rule 2002. On motion of a party in interest, after hearing on
notice, the court may for cause extend the time fixed under this subdivision.
The motion shall be filed before the time has expired.
(d) Time for Filing Complaint Under § 523(a)(6) in a
Chapter 13 Individual's Debt Adjustment Case; Notice of Time Fixed. On motion by a debtor for a discharge under § 1328(b),
the court shall enter an order fixing the time to file a complaint to determine
the dischargeability of any debt under § 523(a)(6) and shall give no less than
30 days' notice of the time fixed to all creditors in the manner provided in
Rule 2002. On motion of any party in interest, after hearing on notice, the
court may for cause extend the time fixed under this subdivision. The motion
shall be filed before the time has expired.
(e) Applicability of Rules in Part VII. A proceeding commenced by a complaint filed under this
rule is governed by Part VII of these rules.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 29, 1999, eff. Dec. 1, 1999; Apr. 23, 2008, eff.
Dec. 1, 2008.)
Rule 4008. Filing of Reaffirmation Agreement;
Statement in Support of Reaffirmation Agreement
(a) Filing of Reaffirmation Agreement. A reaffirmation agreement shall be filed no later than
60 days after the first date set for the meeting of creditors under § 341(a) of
the Code. The reaffirmation agreement shall be accompanied by a cover sheet,
prepared as prescribed by the appropriate Official Form. The court may, at any
time and in its discretion, enlarge the time to file a reaffirmation agreement.
(b) Statement in Support of Reaffirmation Agreement. The debtor's statement required under § 524(k)(6)(A)
of the Code shall be accompanied by a statement of the total income and
expenses stated on schedules I and J. If there is a difference between the
total income and expenses stated on those schedules and the statement required
under § 524(k)(6)(A), the statement required by this subdivision shall include
an explanation of the difference.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991; Apr. 23,
2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
PART V. COURTS AND CLERKS
Rule 5001. Courts and Clerks' Offices
(a) Courts Always Open. The courts shall be deemed always open for the purpose
of filing any pleading or other proper paper, issuing and returning process,
and filing, making, or entering motions, orders and rules.
(b) Trials and Hearings; Orders in Chambers. All trials and hearings shall be conducted in open
court and so far as convenient in a regular court room. Except as otherwise
provided in
152(c), all other acts or proceedings may be done or
conducted by a judge in chambers and at any place either within or without the
district; but no hearing, other than one ex parte, shall be conducted outside
the district without the consent of all parties affected thereby.
(c) Clerk's Office. The clerk's office with the clerk or a deputy in attendance shall be
open during business hours on all days except Saturdays, Sundays and the legal
holidays listed in Rule 9006(a).
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 5002. Restrictions on Approval of Appointments
(a) Approval of Appointment of Relatives Prohibited. The appointment of an individual as a trustee or
examiner pursuant to § 1104 of the Code shall not be approved by the court if
the individual is a relative of the bankruptcy judge approving the appointment
or the United States trustee in the region in which the case is pending. The
employment of an individual as an attorney, accountant, appraiser, auctioneer,
or other professional person pursuant to §§ 327, 1103, or 1114 shall not be
approved by the court if the individual is a relative of the bankruptcy judge
approving the employment. The employment of an individual as attorney,
accountant, appraiser, auctioneer, or other professional person pursuant to §§
327, 1103, or 1114 may be approved by the court if the individual is a relative
of the United States trustee in the region in which the case is pending, unless
the court finds that the relationship with the United States trustee renders
the employment improper under the circumstances of the case. Whenever under
this subdivision an individual may not be approved for appointment or
employment, the individual's firm, partnership, corporation, or any other form
of business association or relationship, and all members, associates and
professional employees thereof also may not be approved for appointment or
employment.
(b) Judicial Determination that Approval of
Appointment or Employment Is Improper. A
bankruptcy judge may not approve the appointment of a person as a trustee or
examiner pursuant to § 1104 of the Code or approve the employment of a person
as an attorney, accountant, appraiser, auctioneer, or other professional person
pursuant to §§ 327, 1103, or 1114 of the Code if that person is or has been so
connected with such judge or the United States trustee as to render the
appointment or employment improper.
(As amended Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 5003. Records Kept by the Clerk
(a) Bankruptcy Dockets. The clerk shall keep a docket in each case under the
Code and shall enter thereon each judgment, order, and activity in that case as
prescribed by the Director of the Administrative Office of the United States
Courts. The entry of a judgment or order in a docket shall show the date the
entry is made.
(b) Claims Register. The clerk shall keep in a claims register a list of
claims filed in a case when it appears that there will be a distribution to
unsecured creditors.
(c) Judgments and Orders. The clerk shall keep, in the form and manner as the
Director of the Administrative Office of the United States Courts may
prescribe, a correct copy of every final judgment or order affecting title to
or lien on real property or for the recovery of money or property, and any
other order which the court may direct to be kept. On request of the prevailing
party, a correct copy of every judgment or order affecting title to or lien
upon real or personal property or for the recovery of money or property shall
be kept and indexed with the civil judgments of the district court.
(d) Index of Cases; Certificate of Search. The clerk shall keep indices of all cases and
adversary proceedings as prescribed by the Director of the Administrative
Office of the United States Courts. On request, the clerk shall make a search
of any index and papers in the clerk's custody and certify whether a case or
proceeding has been filed in or transferred to the court or if a discharge has
been entered in its records.
(e) Register of Mailing Addresses of Federal and State
Governmental Units and Certain Taxing Authorities. The United States or the state or territory in which
the court is located may file a statement designating its mailing address. The
United States, state, territory, or local governmental unit responsible for
collecting taxes within the district in which the case is pending may also file
a statement designating an address for service of requests under § 505(b) of
the Code, and the designation shall describe where further information
concerning additional requirements for filing such requests may be found. The
clerk shall keep, in the form and manner as the Director of the Administrative
Office of the United States Courts may prescribe, a register that includes the
mailing addresses designated under the first sentence of this subdivision, and
a separate register of the addresses designated for the service of requests
under § 505(b) of the Code. The clerk is not required to include in any single
register more than one mailing address for each department, agency, or instrumentality
of the United States or the state or territory. If more than one address for a
department, agency, or instrumentality is included in the register, the clerk
shall also include information that would enable a user of the register to
determine the circumstances when each address is applicable, and mailing notice
to only one applicable address is sufficient to provide effective notice. The
clerk shall update the register annually, effective January 2 of each year. The
mailing address in the register is conclusively presumed to be a proper address
for the governmental unit, but the failure to use that mailing address does not
invalidate any notice that is otherwise effective under applicable law.
(f) Other Books and Records of the Clerk. The clerk shall keep any other books and records
required by the Director of the Administrative Office of the United States
Courts.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 17,
2000, Dec. 1, 2000; Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 5004. Disqualification
(a) Disqualification of Judge. A bankruptcy judge shall be governed by 28 U.S.C. §
455, and disqualified from presiding over the proceeding or contested matter in
which the disqualifying circumstances arises or, if appropriate, shall be
disqualified from presiding over the case.
(b) Disqualification of Judge from Allowing
Compensation. A bankruptcy judge
shall be disqualified from allowing compensation to a person who is a relative
of the bankruptcy judge or with whom the judge is so connected as to render it
improper for the judge to authorize such compensation.
(As amended Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 30,
1987, eff. Aug. 1, 1987.)
Rule 5005. Filing and Transmittal of Papers
(a) Filing.
(1) Place of Filing. The lists, schedules,
statements, proofs of claim or interest, complaints, motions, applications,
objections and other papers required to be filed by these rules, except as
provided in 28 U.S.C. § 1409, shall be filed with the clerk in the district
where the case under the Code is pending. The judge of that court may permit
the papers to be filed with the judge, in which event the filing date shall be
noted thereon, and they shall be forthwith transmitted to the clerk. The clerk
shall not refuse to accept for filing any petition or other paper presented for
the purpose of filing solely because it is not presented in proper form as
required by these rules or any local rules or practices.
(2) Filing by Electronic Means. A court may by
local rule permit or require documents to be filed, signed, or verified by
electronic means that are consistent with technical standards, if any, that the
Judicial Conference of the United States establishes. A local rule may require
filing by electronic means only if reasonable exceptions are allowed. A
document filed by electronic means in compliance with a local rule constitutes
a written paper for the purpose of applying these rules, the Federal Rules of
Civil Procedure made applicable by these rules, and § 107 of the Code.
(b) Transmittal to the United States Trustee.
(1) The complaints, motions, applications, objections
and other papers required to be transmitted to the United States trustee by
these rules shall be mailed or delivered to an office of the United States
trustee, or to another place designated by the United States trustee, in the
district where the case under the Code is pending.
(2) The entity, other than the clerk, transmitting a
paper to the United States trustee shall promptly file as proof of such
transmittal a verified statement identifying the paper and stating the date on
which it was transmitted to the United States trustee.
(3) Nothing in these rules shall require the clerk to
transmit any paper to the United States trustee if the United States trustee requests
in writing that the paper not be transmitted.
(c) Error in Filing or Transmittal. A paper intended to be filed with the clerk but
erroneously delivered to the United States trustee, the trustee, the attorney
for the trustee, a bankruptcy judge, a district judge, the clerk of the
bankruptcy appellate panel, or the clerk of the district court shall, after the
date of its receipt has been noted thereon, be transmitted forthwith to the
clerk of the bankruptcy court. A paper intended to be transmitted to the United
States trustee but erroneously delivered to the clerk, the trustee, the
attorney for the trustee, a bankruptcy judge, a district judge, the clerk of
the bankruptcy appellate panel, or the clerk of the district court shall, after
the date of its receipt has been noted thereon, be transmitted forthwith to the
United States trustee. In the interest of justice, the court may order that a
paper erroneously delivered shall be deemed filed with the clerk or transmitted
to the United States trustee as of the date of its original delivery.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987 ; Apr.
30, 1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993; Apr. 23, 1996,
eff. Dec. 1, 1996; Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 5006. Certification of Copies of Papers
The clerk shall issue a certified copy of the record
of any proceeding in a case under the Code or of any paper filed with the clerk
on payment of any prescribed fee.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 5007. Record of Proceedings and Transcripts
(a) Filing of Record or Transcript. The reporter or operator of a recording device shall
certify the original notes of testimony, tape recording, or other original
record of the proceeding and promptly file them with the clerk. The person preparing
any transcript shall promptly file a certified copy.
(b) Transcript Fees. The fees for copies of transcripts shall be charged at
rates prescribed by the Judicial Conference of the United States. No fee may be
charged for the certified copy filed with the clerk.
(c) Admissibility of Record in Evidence. A certified sound recording or a transcript of a
proceeding shall be admissible as prima facie evidence to establish the record.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 5008. Notice Regarding Presumption of Abuse in
Chapter 7 Cases of Individual Debtors
If a presumption of abuse has arisen under § 707(b) in
a chapter 7 case of an individual with primarily consumer debts, the clerk
shall within 10 days after the date of the filing of the petition notify
creditors of the presumption of abuse in accordance with Rule 2002. If the
debtor has not filed a statement indicating whether a presumption of abuse has
arisen, the clerk shall within 10 days after the date of the filing of the
petition notify creditors that the debtor has not filed the statement and that
further notice will be given if a later filed statement indicates that a
presumption of abuse has arisen. If a debtor later files a statement
indicating that a presumption of abuse has arisen, the
clerk shall notify creditors of the presumption of abuse as promptly as
practicable.
(Added Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 5009. Closing Chapter 7 Liquidation, Chapter 12
Family Farmer's Debt Adjustment, and Chapter 13 Individual's Debt Adjustment
Cases
If in a chapter 7, chapter 12, or chapter 13 case the
trustee has filed a final report and final account and has certified that the
estate has been fully administered, and if within 30 days no objection has been
filed by the United States trustee or a party in interest, there shall be a
presumption that the estate has been fully administered.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 5010. Reopening Cases
A case may be reopened on motion of the debtor or
other party in interest pursuant to § 350(b) of the Code. In a chapter 7, 12,
or 13 case a trustee shall not be appointed by the United States trustee unless
the court determines that a trustee is necessary to protect the interests of
creditors and the debtor or to insure efficient administration of the case.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 5011. Withdrawal and Abstention from Hearing a
Proceeding
(a)Withdrawal. A
motion for withdrawal of a case or proceeding shall be heard by a district
judge.
(b) Abstention from Hearing a Proceeding. A motion for abstention pursuant to 28 U.S.C. §
1334(c) shall be governed by Rule 9014 and shall be served on the parties to
the proceeding.
(c) Effect of Filing of Motion for Withdrawal or
Abstention. The filing of a motion
for withdrawal of a case or proceeding or for abstention pursuant to 28 U.S.C.
§ 1334(c) shall not stay the administration of the case or any proceeding
therein before the bankruptcy judge except that the bankruptcy judge may stay,
on such terms and conditions as are proper, proceedings pending disposition of
the motion. A motion for a stay ordinarily shall be presented first to the
bankruptcy judge. A motion for a stay or relief from a stay filed in the
district court shall state why it has not been presented to or obtained from
the bankruptcy judge. Relief granted by the district judge shall be on such
terms and conditions as the judge deems proper.
(Added Mar. 30, 1987, eff. Aug. 1, 1987 and amended
Apr. 30, 1991, eff. Aug. 1, 1991.)
PART VI. COLLECTION AND LIQUIDATION OF THE ESTATE
Rule 6001. Burden of Proof as to Validity of
Postpetition Transfer
Any entity asserting the validity of a transfer under
§ 549 of the Code shall have the burden of proof.
Rule 6002. Accounting by Prior Custodian of Property
of the Estate
(a) Accounting Required. Any custodian required by the Code to deliver property
in the custodian's possession or control to the trustee shall promptly file and
transmit to the United States trustee a report and account with respect to the
property of the estate and the administration thereof.
(b) Examination of Administration. On the filing and transmittal of the report and
account required by subdivision (a) of this rule and after an examination has
been made into the superseded administration,
after notice and a hearing, the court shall determine
the propriety of the administration, including the reasonableness of all
disbursements.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993.)
Rule 6003. Interim and Final Relief Immediately
Following the Commencement of the Case—Applications for Employment; Motions for
Use, Sale, or Lease of Property; and Motions for Assumption or Assignment of
Executory Contracts
Except to the extent that relief is necessary to avoid
immediate and irreparable harm, the court shall not, within 21 days after the
filing of the petition, grant relief regarding the following:
(a) an application under Rule 2014;
(b) a motion to use, sell, lease, or otherwise incur
an obligation regarding property of the estate, including a motion to pay all
or part of a claim that arose before the filing of the petition, but not a
motion under Rule 4001; and
(c) a motion to assume or assign an executory contract
or unexpired lease in accordance with § 365.
(Added Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 6004. Use, Sale, or Lease of Property
(a) Notice of Proposed Use, Sale, or Lease of
Property. Notice of a proposed use,
sale, or lease of property, other than cash collateral, not in the ordinary
course of business shall be given pursuant to Rule 2002(a)(2), (c)(1), (i), and
(k) and, if applicable, in accordance with § 363(b)(2) of the Code.
(b) Objection to Proposal. Except as provided in subdivisions (c) and (d) of this
rule, an objection to a proposed use, sale, or lease of property shall be filed
and served not less than seven days before the date set for the proposed action
or within the time fixed by the court. An objection to the proposed use, sale,
or lease of property is governed by Rule 9014.
(c) Sale Free and Clear of Liens and Other Interests. A motion for authority to sell property free and clear
of liens or other interests shall be made in accordance with Rule 9014 and
shall be served on the parties who have liens or other interests in the
property to be sold. The notice required by subdivision (a) of this rule shall
include the date of the hearing on the motion and the time within which
objections may be filed and served on the debtor in possession or trustee.
(d) Sale of Property Under $2,500. Notwithstanding subdivision (a) of this rule, when all
of the nonexempt property of the estate has an aggregate gross value less than
$2,500, it shall be sufficient to give a general notice of intent to sell such
property other than in the ordinary course of business to all creditors,
indenture trustees, committees appointed or elected pursuant to the Code, the
United States trustee and other persons as the court may direct. An objection
to any such sale may be filed and served by a party in interest within 14 days
of the mailing of the notice, or within the time fixed by the court. An
objection is governed by Rule 9014.
(e) Hearing. If
a timely objection is made pursuant to subdivision (b) or (d) of this rule, the
date of the hearing thereon may be set in the notice given pursuant to
subdivision (a) of this rule.
(f) Conduct of Sale Not in the Ordinary Course of
Business.
(1) Public or Private Sale. All sales not in
the ordinary course of business may be by private sale or by public auction.
Unless it is impracticable, an itemized statement of the property sold, the
name of each purchaser, and the price received for each item or lot or for the
property as a whole if sold in bulk shall be filed on completion of a sale. If
the property is sold by an auctioneer, the auctioneer shall file the statement,
transmit a copy thereof to the United States trustee, and furnish a copy to the
trustee, debtor in possession, or chapter 13 debtor. If the property is not
sold by an auctioneer, the trustee, debtor in possession, or chapter 13 debtor
shall file the statement and transmit a copy thereof to the United States
trustee.
(2) Execution of Instruments. After a sale in
accordance with this rule the debtor, the trustee, or debtor in possession, as
the case may be, shall execute any instrument necessary or ordered by the court
to effectuate the transfer to the purchaser.
(g) Sale of Personally Identifiable Information.
(1) Motion. A motion for authority to sell or
lease personally identifiable information under § 363(b)(1)(B) shall include a
request for an order directing the United States trustee to appoint a consumer
privacy ombudsman under § 332. Rule 9014 governs the motion which shall be
served on: any committee elected under § 705 or appointed under § 1102 of the
Code, or if the case is a chapter 11 reorganization case and no committee of
unsecured creditors has been appointed under § 1102, on the creditors included
on the list of creditors filed under Rule 1007(d); and on such other entities
as the court may direct. The motion shall be transmitted to the United States
trustee.
(2) Appointment. If a consumer privacy
ombudsman is appointed under § 332, no later than seven days before the hearing
on the motion under § 363(b)(1)(B), the United States trustee shall file a
notice of the appointment, including the name and address of the person
appointed. The United States trustee's notice shall be accompanied by a
verified statement of the person appointed setting forth the person's
connections with the debtor, creditors, any other party in interest, their
respective attorneys and accountants, the United States trustee, or any person
employed in the office of the United States trustee.
(h) Stay of Order Authorizing Use, Sale, or Lease of
Property. An order authorizing the
use, sale, or lease of property other than cash collateral is stayed until the
expiration of 14 days after entry of the order, unless the court orders
otherwise.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 29, 1999, eff. Dec. 1, 1999; Apr. 23, 2008, eff.
Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 6005. Appraisers and Auctioneers
The order of the court approving the employment of an
appraiser or auctioneer shall fix the amount or rate of compensation. No
officer or employee of the Judicial Branch of the United States or the United
States Department of Justice shall be eligible to act as appraiser or
auctioneer. No residence or licensing requirement shall disqualify an appraiser
or auctioneer from employment.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 6006. Assumption, Rejection or Assignment of an
Executory Contract or Unexpired Lease
(a) Proceeding to Assume, Reject, or Assign. A proceeding to assume, reject, or assign an executory
contract or unexpired lease, other than as part of a plan, is governed by Rule
9014.
(b) Proceeding to Require Trustee to Act. A proceeding by a party to an executory contract or
unexpired lease in a chapter 9 municipality case, chapter 11 reorganization
case, Chapter 12 family farmer's debt adjustment case, or chapter 13 individual's
debt adjustment case, to require the trustee, debtor in possession, or debtor
to determine whether to assume or reject the contract or lease is governed by
Rule 9014.
(c) Notice. Notice
of a motion made pursuant to subdivision (a) or (b) of this rule shall be given
to the other party to the contract or lease, to other parties in interest as
the court may direct, and, except in a chapter 9 municipality case, to the
United States trustee.
(d) Stay of Order Authorizing Assignment. An order authorizing the trustee to assign an
executory contract or unexpired lease under § 365(f) is stayed until the
expiration of 14 days after the entry of the order, unless the court orders
otherwise.
(e) Limitations. The trustee shall not seek authority to assume or assign multiple
executory contracts or unexpired leases in one motion unless: (1) all executory
contracts or unexpired leases to be assumed or assigned are between the same
parties or are to be assigned to the same assignee; (2) the trustee seeks to
assume, but not assign to more than one assignee,
unexpired leases of real property; or (3) the court otherwise authorizes the
motion to be filed. Subject to subdivision (f), the trustee may join requests
for authority to reject multiple executory contracts or unexpired leases in one
motion.
(f) Omnibus Motions. A motion to reject or, if permitted under subdivision
(e), a motion to assume or assign multiple executory contracts or unexpired
leases that are not between the same parties shall:
(1) state in a conspicuous place that parties
receiving the omnibus motion should locate their names and their contracts or
leases listed in the motion;
(2) list parties alphabetically and identify the
corresponding contract or lease;
(3) specify the terms, including the curing of
defaults, for each requested assumption or assignment;
(4) specify the terms, including the identity of each
assignee and the adequate assurance of future performance by each assignee, for
each requested assignment;
(5) be numbered consecutively with other omnibus
motions to assume, assign, or reject executory contracts or unexpired leases;
and
(6) be limited to no more than 100 executory contracts
or unexpired leases.
(g) Finality of Determination. The finality of any order respecting an executory
contract or unexpired lease included in an omnibus motion shall be determined
as though such contract or lease had been the subject of a separate motion.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993; Apr. 29, 1999, eff.
Dec. 1, 1999; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1,
2009.)
Rule 6007. Abandonment or Disposition of Property
(a) Notice of Proposed Abandonment or Disposition;
Objections; Hearing. Unless otherwise
directed by the court, the trustee or debtor in possession shall give notice of
a proposed abandonment or disposition of property to the United States trustee,
all creditors, indenture trustees, and committees elected pursuant to § 705 or
appointed pursuant to § 1102 of the Code. A party in interest may file and
serve an objection within 14 days of the mailing of the notice, or within the
time fixed by the court. If a timely objection is made, the court shall set a
hearing on notice to the United States trustee and to other entities as the
court may direct.
(b) Motion by Party in Interest. A party in interest may file and serve a motion
requiring the trustee or debtor in possession to abandon property of the
estate.
(c) [Abrogated]
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993; Mar. 26, 2009, eff.
Dec. 1, 2009.)
Rule 6008. Redemption of Property from Lien or Sale
On motion by the debtor, trustee, or debtor in
possession and after hearing on notice as the court may direct, the court may
authorize the redemption of property from a lien or from a sale to enforce a
lien in accordance with applicable law.
Rule 6009. Prosecution and Defense of Proceedings by
Trustee or Debtor in Possession
With or without court approval, the trustee or debtor
in possession may prosecute or may enter an appearance and defend any pending
action or proceeding by or against the debtor, or commence and prosecute any
action or proceeding in behalf of the estate before any tribunal.
Rule 6010. Proceeding to Avoid Indemnifying Lien or
Transfer to Surety
If a lien voidable under § 547 of the Code has been
dissolved by the furnishing of a bond or other obligation and the surety
thereon has been indemnified by the transfer of, or the creation of a lien
upon, nonexempt property of the debtor, the surety shall be joined as a
defendant in any proceeding to avoid the indemnifying transfer or lien. Such proceeding
is governed by the rules in Part VII.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 6011. Disposal of Patient Records in Health Care
Business Case
(a) Notice by Publication Under § 351(1)(A). A notice regarding the claiming or disposing of patient
records under § 351(1)(A) shall not identify any patient by name or other
identifying information, but shall:
(1) identify with particularity the health care
facility whose patient records the trustee proposes to destroy;
(2) state the name, address, telephone number, email
address, and website, if any, of a person from whom information about the
patient records may be obtained;
(3) state how to claim the patient records; and
(4) state the date by which patient records must be
claimed, and that if they are not so claimed the records will be destroyed.
(b) Notice by Mail Under § 351(1)(B). Subject to applicable nonbankruptcy law relating to
patient privacy, a notice regarding the claiming or disposing of patient
records under § 351(1)(B) shall, in addition to including the information in
subdivision (a), direct that a patient's family member or other representative
who receives the notice inform the patient of the notice. Any notice under this
subdivision shall be mailed to the patient and any family member or other
contact person whose name and address have been given to the trustee or the
debtor for the purpose of providing information regarding the patient's health
care, to the Attorney General of the State where the health care facility is
located, and to any insurance company known to have provided health care
insurance to the patient.
(c) Proof of Compliance with Notice Requirement. Unless the court orders the trustee to file proof of
compliance with § 351(1)(B) under seal, the trustee shall not file, but shall
maintain, the proof of compliance for a reasonable time.
(d) Report of Destruction of Records. The trustee shall file, no later than 30 days after
the destruction of patient records under § 351(3), a report certifying that the
unclaimed records have been destroyed and explaining the method used to effect
the destruction. The report shall not identify any patient by name or other
identifying information.
(Added Apr. 23, 2008, eff. Dec. 1, 2008.)
PART VII. ADVERSARY PROCEEDINGS
Rule 7001. Scope of Rules of Part VII
An adversary proceeding is governed by the rules of
this Part VII. The following are adversary proceedings:
(1) a proceeding to recover money or property, other
than a proceeding to compel the debtor to deliver property to the trustee, or a
proceeding under § 554(b) or § 725 of the Code, Rule 2017, or Rule 6002;
(2) a proceeding to determine the validity, priority,
or extent of a lien or other interest in property, other than a proceeding
under Rule 4003(d);
(3) a proceeding to obtain approval under § 363(h) for
the sale of both the interest of the estate and of a co-owner in property;
(4) a proceeding to object to or revoke a discharge;
(5) a proceeding to revoke an order of confirmation of
a chapter 11, chapter 12 or chapter 13 plan;
(6) a proceeding to determine the dischargeability of
a debt;
(7) a proceeding to obtain an injunction or other
equitable relief, except when a chapter 9, chapter 11, chapter 12, or chapter
13 plan provides for the relief;
(8) a proceeding to subordinate any allowed claim or
interest, except when a chapter 9, chapter 11, chapter 12, or chapter 13 plan
provides for subordination;
(9) a proceeding to obtain a declaratory judgment
relating to any of the foregoing; or
(10) a proceeding to determine a claim or cause of
action removed under 28 U.S.C. § 1452.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 29, 1999, eff. Dec. 1, 1999.)
Rule 7002. References to Federal Rules of Civil
Procedure
Whenever a Federal Rule of Civil Procedure applicable
to adversary proceedings makes reference to another Federal Rule of Civil
Procedure, the reference shall be read as a reference to the Federal Rule of
Civil Procedure as modified in this Part VII.
Rule 7003. Commencement of Adversary Proceeding
Rule 3 F. R. Civ. P. applies in adversary proceedings.
Rule 7004. Process; Service of Summons, Complaint
(a) Summons; Service; Proof of Service.
(1) Except as provided in Rule 7004(a)(2), Rule 4(a),
(b), (c)(1), (d)(1), (e)–(j), (l), and (m) F. R. Civ. P. applies in adversary
proceedings. Personal service under Rule 4(e)–(j) F. R. Civ. P. may be made by
any person at least 18 years of age who is not a party, and the summons may be
delivered by the clerk to any such person.
(2) The clerk may sign, seal, and issue a summons
electronically by putting an “s/” before the clerk's name and including the
court's seal on the summons.
(b) Service by First Class Mail. Except as provided in subdivision (h), in addition to
the methods of service authorized by Rule 4(e)–(j) F. R. Civ. P., service may
be made within the United States by first class mail postage prepaid as
follows:
(1) Upon an individual other than an infant or
incompetent, by mailing a copy of the summons and complaint to the individual's
dwelling house or usual place of abode or to the place where the individual
regularly conducts a business or profession.
(2) Upon an infant or an incompetent person, by
mailing a copy of the summons and complaint to the person upon whom process is
prescribed to be served by the law of the state in which service is made when
an action is brought against such a defendant in the courts of general
jurisdiction of that state. The summons and complaint in that case shall be
addressed to the person required to be served at that person's dwelling house
or usual place of abode or at the place where the person regularly conducts a
business or profession.
(3) Upon a domestic or foreign corporation or upon a
partnership or other unincorporated association, by mailing a copy of the
summons and complaint to the attention of an officer, a managing or general
agent, or to any other agent authorized by appointment or by law to receive
service of process and, if the agent is one authorized by statute to receive
service and the statute so requires, by also mailing a copy to the defendant.
(4) Upon the United States, by mailing a copy of the
summons and complaint addressed to the civil process clerk at the office of the
United States attorney for the district in which the action is brought and by
mailing a copy of the summons and complaint to the Attorney General of the
United
States at Washington, District of Columbia, and in any
action attacking the validity of an order of an officer or an agency of the United
States not made a party, by also mailing a copy of the summons and complaint to
that officer or agency. The court shall allow a reasonable time for service
pursuant to this subdivision for the purpose of curing the failure to mail a
copy of the summons and complaint to multiple officers, agencies, or
corporations of the United States if the plaintiff has mailed a copy of the
summons and complaint either to the civil process clerk at the office of the
United States attorney or to the Attorney General of the United States.
(5) Upon any officer or agency of the United States,
by mailing a copy of the summons and complaint to the United States as
prescribed in paragraph (4) of this subdivision and also to the officer or
agency. If the agency is a corporation, the mailing shall be as prescribed in
paragraph (3) of this subdivision of this rule. The court shall allow a
reasonable time for service pursuant to this subdivision for the purpose of
curing the failure to mail a copy of the summons and complaint to multiple
officers, agencies, or corporations of the United States if the plaintiff has
mailed a copy of the summons and complaint either to the civil process clerk at
the office of the United States attorney or to the Attorney General of the
United States. If the United States trustee is the trustee in the case and
service is made upon the United States trustee solely as trustee, service may
be made as prescribed in paragraph (10) of this subdivision of this rule.
(6) Upon a state or municipal corporation or other
governmental organization thereof subject to suit, by mailing a copy of the
summons and complaint to the person or office upon whom process is prescribed
to be served by the law of the state in which service is made when an action is
brought against such a defendant in the courts of general jurisdiction of that
state, or in the absence of the designation of any such person or office by
state law, then to the chief executive officer thereof.
(7) Upon a defendant of any class referred to in
paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if
a copy of the summons and complaint is mailed to the entity upon whom service
is prescribed to be served by any statute of the United States or by the law of
the state in which service is made when an action is brought against such a
defendant in the court of general jurisdiction of that state.
(8) Upon any defendant, it is also sufficient if a
copy of the summons and complaint is mailed to an agent of such defendant
authorized by appointment or by law to receive service of process, at the agent's
dwelling house or usual place of abode or at the place where the agent
regularly carries on a business or profession and, if the authorization so
requires, by mailing also a copy of the summons and complaint to the defendant
as provided in this subdivision.
(9) Upon the debtor, after a petition has been filed
by or served upon the debtor and until the case is dismissed or closed, by
mailing a copy of the summons and complaint to the debtor at the address shown
in the petition or to such other address as the debtor may designate in a filed
writing.
(10) Upon the United States trustee, when the United
States trustee is the trustee in the case and service is made upon the United
States trustee solely as trustee, by mailing a copy of the summons and
complaint to an office of the United States trustee or another place designated
by the United States trustee in the district where the case under the Code is
pending.
(c) Service by Publication. If a party to an adversary proceeding to determine or
protect rights in property in the custody of the court cannot be served as
provided in Rule 4(e)–(j) F. R. Civ. P. or subdivision (b) of this rule, the
court may order the summons and complaint to be served by mailing copies
thereof by first class mail postage prepaid, to the party's last known address
and by at least one publication in such manner and form as the court may
direct.
(d) Nationwide Service of Process. The summons and complaint and all other process except
a subpoena may be served anywhere in the United States.
(e) Summons: Time Limit for Service Within the United
States. Service made under Rule 4(e),
(g), (h)(1), (i), or (j)(2) F. R. Civ. P. shall be by delivery of the summons
and complaint within 14 days after the summons is issued. If service is by any
authorized form of mail, the summons and complaint shall be deposited in the
mail within 14 days after the summons is issued. If a summons is not timely
delivered or mailed, another summons shall be issued
and served. This subdivision does not apply to service in a foreign country.
(f) Personal Jurisdiction. If the exercise of jurisdiction is consistent with the
Constitution and laws of the United States, serving a summons or filing a
waiver of service in accordance with this rule or the subdivisions of Rule 4 F.
R. Civ. P. made applicable by these rules is effective to establish personal
jurisdiction over the person of any defendant with respect to a case under the
Code or a civil proceeding arising under the Code, or arising in or related to
a case under the Code.
(g) Service on Debtor's Attorney. If the debtor is represented by an attorney, whenever
service is made upon the debtor under this Rule, service shall also be made
upon the debtor's attorney by any means authorized under Rule 5(b) F. R. Civ.
P.
(h) Service of Process on an Insured Depository
Institution.—Service on an insured
depository institution (as defined in section 3 of the Federal Deposit
Insurance Act) in a contested matter or adversary proceeding shall be made by
certified mail addressed to an officer of the institution unless —
(1) the institution has appeared by its attorney, in
which case the attorney shall be served by first class mail;
(2) the court orders otherwise after service upon the
institution by certified mail of notice of an application to permit service on
the institution by first class mail sent to an officer of the institution
designated by the institution; or
(3) the institution has waived in writing its
entitlement to service by certified mail by designating an officer to receive
service.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Oct. 22, 1994, Pub.L. 103-394, Title I, § 114, 108
Stat. 4118; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 29, 1999, eff. Dec. 1, 1999;
Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1, 2006; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 7005. Service and Filing of Pleadings and Other
Papers
Rule 5 F. R. Civ. P. applies in adversary proceedings.
Rule 7007. Pleadings Allowed
Rule 7 F. R. Civ. P. applies in adversary proceedings.
Rule 7007.1. Corporate Ownership Statement
(a) Required Disclosure. Any corporation that is a party to an adversary
proceeding, other than the debtor or a governmental unit, shall file two copies
of a statement that identifies any corporation, other than a governmental unit,
that directly or indirectly owns 10% or more of any class of the corporation's
equity interests, or states that there are no entities to report under this
subdivision.
(b) Time for Filing. A party shall file the statement required under Rule
7007.1(a) with its first appearance, pleading, motion, response, or other
request addressed to the court. A party shall file a supplemental statement
promptly upon any change in circumstances that this rule requires the party to
identify or disclose.
(Added Mar. 27, 2003, eff. Dec. 1, 2003. As amended
Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 7008. General Rules of Pleading
(a) Applicability of Rule 8 F. R. Civ. P. Rule 8 F. R. Civ. P. applies in adversary proceedings.
The allegation of jurisdiction required by Rule 8(a) shall also contain a
reference to the name, number, and chapter of the case under the Code to which
the adversary proceeding relates and to the district and division where the
case under the Code is pending. In an adversary proceeding before a bankruptcy
judge, the complaint, counterclaim, cross-claim, or third-party complaint shall
contain a statement that the
proceeding is core or non-core and, if non-core, that
the pleader does or does not consent to entry of final orders or judgment by
the bankruptcy judge.
(b) Attorney's Fees. A request for an award of attorney's fees shall be
pleaded as a claim in a complaint, cross-claim, third-party complaint, answer,
or reply as may be appropriate.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 7009. Pleading Special Matters
Rule 9 F. R. Civ. P. applies in adversary proceedings.
Rule 7010. Form of Pleadings
Rule 10 F. R. Civ. P. applies in adversary
proceedings, except that the caption of each pleading in such a proceeding
shall conform substantially to the appropriate Official Form.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 7012. Defenses and Objections—When and How Presented—by
Pleading or Motion—Motion for Judgment on the Pleadings
(a)When Presented. If a complaint is duly served, the defendant shall serve an answer
within 30 days after the issuance of the summons, except when a different time
is prescribed by the court. The court shall prescribe the time for service of
the answer when service of a complaint is made by publication or upon a party
in a foreign country. A party served with a pleading stating a cross-claim
shall serve an answer thereto within 21 days after service. The plaintiff shall
serve a reply to a counterclaim in the answer within 21 days after service of
the answer or, if a reply is ordered by the court, within 21 days after service
of the order, unless the order otherwise directs. The United States or an
officer or agency thereof shall serve an answer to a complaint within 35 days
after the issuance of the summons, and shall serve an answer to a cross-claim,
or a reply to a counterclaim, within 35 days after service upon the United
States attorney of the pleading in which the claim is asserted. The service of
a motion permitted under this rule alters these periods of time as follows,
unless a different time is fixed by order of the court: (1) if the court denies
the motion or postpones its disposition until the trial on the merits, the
responsive pleading shall be served within 14 days after notice of the court's
action; (2) if the court grants a motion for a more definite statement, the
responsive pleading shall be served within 14 days after the service of a more
definite statement.
(b) Applicability of Rule 12(b)–(i) F. R. Civ. P . Rule 12(b)–(i) F. R. Civ. P. applies in adversary
proceedings. A responsive pleading shall admit or deny an allegation that the
proceeding is core or non-core. If the response is that the proceeding is
non-core, it shall include a statement that the party does or does not consent
to entry of final orders or judgment by the bankruptcy judge. In non-core
proceedings final orders and judgments shall not be entered on the bankruptcy
judge's order except with the express consent of the parties.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 23,
2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 7013. Counterclaim and Cross-Claim
Rule 13 F. R. Civ. P. applies in adversary
proceedings, except that a party sued by a trustee or debtor in possession need
not state as a counterclaim any claim that the party has against the debtor,
the debtor's property, or the estate, unless the claim arose after the entry of
an order for relief. A trustee or debtor in possession who fails to plead a
counterclaim through oversight, inadvertence, or excusable neglect, or
when justice so requires, may by leave of court amend
the pleading, or commence a new adversary proceeding or separate action.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 7014. Third-Party Practice
Rule 14 F. R. Civ. P. applies in adversary
proceedings.
Rule 7015. Amended and Supplemental Pleadings
Rule 15 F. R. Civ. P. applies in adversary
proceedings.
Rule 7016. Pre-Trial Procedure; Formulating Issues
Rule 16 F. R. Civ. P. applies in adversary
proceedings.
Rule 7017. Parties Plaintiff and Defendant; Capacity
Rule 17 F. R. Civ. P. applies in adversary
proceedings, except as provided in Rule 2010(b).
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 7018. Joinder of Claims and Remedies
Rule 18 F. R. Civ. P. applies in adversary
proceedings.
Rule 7019. Joinder of Persons Needed for Just
Determination
Rule 19 F. R. Civ. P. applies in adversary
proceedings, except that (1) if an entity joined as a party raises the defense
that the court lacks jurisdiction over the subject matter and the defense is
sustained, the court shall dismiss such entity from the adversary proceeding
and (2) if an entity joined as a party properly and timely raises the defense
of improper venue, the court shall determine, as provided in 28 U.S.C. § 1412,
whether that part of the proceeding involving the joined party shall be
transferred to another district, or whether the entire adversary proceeding
shall be transferred to another district.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 7020. Permissive Joinder of Parties
Rule 20 F. R. Civ. P. applies in adversary
proceedings.
Rule 7021. Misjoinder and Non-Joinder of Parties
Rule 21 F. R. Civ. P. applies in adversary
proceedings.
Rule 7022. Interpleader.
Rule 22 (a) F. R. Civ. P. applies in adversary
proceedings. This rule supplements — and does not limit —the joinder of parties
allowed by Rule 7020.
(As amended Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule 7023. Class Proceedings
Rule 23 F. R. Civ. P. applies in adversary
proceedings.
Rule 7023.1. Derivative Actions
Rule 23.1 F. R. Civ. P. applies in adversary
proceedings.
(As amended Apr. 23, 2008, eff. Dec. 1,2008.)
Rule 7023.2. Adversary Proceedings Relating to
Unincorporated Associations
Rule 23.2 F. R. Civ. P. applies in adversary
proceedings.
Rule 7024. Intervention
Rule 24 F. R. Civ. P. applies in adversary
proceedings.
Rule 7025. Substitution of Parties
Subject to the provisions of Rule 2012, Rule 25 F. R.
Civ. P. applies in adversary proceedings.
Rule 7026. General Provisions Governing Discovery
F. R. Civ. P. applies in adversary proceedings.
Rule 7027. Depositions Before Adversary Proceedings or
Pending Appeal
Rule 27 F. R. Civ. P. applies in adversary
proceedings.
Rule 7028. Persons Before Whom Depositions May Be
Taken
Rule 28 F. R. Civ. P. applies in adversary
proceedings.
Rule 7029. Stipulations Regarding Discovery Procedure
Rule 29 F. R. Civ. P. applies in adversary
proceedings.
Rule 7030. Depositions Upon Oral Examination
Rule 30 F. R. Civ. P. applies in adversary
proceedings.
Rule 7031. Deposition Upon Written Questions
Rule 31 F. R. Civ. P. applies in adversary
proceedings.
Rule 7032. Use of Depositions in Adversary Proceedings
Rule 32 F. R. Civ. P. applies in adversary
proceedings.
Rule 7033. Interrogatories to Parties
Rule 33 F. R. Civ. P. applies in adversary
proceedings.
Rule 7034. Production of Documents and Things and
Entry Upon Land for Inspection and Other Purposes
Rule 34 F. R. Civ. P. applies in adversary
proceedings.
Rule 7035. Physical and Mental Examination of Persons
Rule 35 F. R. Civ. P. applies in adversary
proceedings.
Rule 7036. Requests for Admission
F. R. Civ. P. applies in adversary proceedings.
Rule 7037. Failure to Make Discovery: Sanctions
Rule 37 F. R. Civ. P. applies in adversary
proceedings.
Rule 7040. Assignment of Cases for Trial
Rule 40 F. R. Civ. P. applies in adversary
proceedings.
Rule 7041. Dismissal of Adversary Proceedings
Rule 41 F. R. Civ. P. applies in adversary
proceedings, except that a complaint objecting to the debtor's discharge shall
not be dismissed at the plaintiff's instance without notice to the trustee, the
United States trustee, and such other persons as the court may direct, and only
on order of the court containing terms and conditions which the court deems
proper.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 7042. Consolidation of Adversary Proceedings; Separate
Trials
Rule 42 F. R. Civ. P. applies in adversary
proceedings.
Rule 7052. Findings by the Court
Rule 52 F. R. Civ. P. applies in adversary
proceedings, except that any motion under subdivision (b) of that rule for
amended or additional findings shall be filed no later than 14 days after entry
of judgment. In these proceedings, the reference in Rule 52 F. R. Civ. P. to
the entry of judgment under Rule 58 F. R. Civ. P. shall be read as a reference
to the entry of a judgment or order under Rule 5003(a).
(Amended Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 7054. Judgments; Costs
(a) Judgments. Rule
54(a)–(c) F. R. Civ. P. applies in adversary proceedings.
(b) Costs. The
court may allow costs to the prevailing party except when a statute of the
United States or these rules otherwise provides. Costs against the United
States, its officers and agencies shall be imposed only to the extent permitted
by law. Costs may be taxed by the clerk on one day's notice; on motion served
within five days thereafter, the action of the clerk may be reviewed by the
court.
Rule 7055. Default
Rule 55 F. R. Civ. P. applies in adversary
proceedings.
Rule 7056. Summary Judgment
Rule 56 F. R. Civ. P. applies in adversary
proceedings.
Rule 7058. Entering Judgment in Adversary Proceeding
Rule 58 F. R. Civ. P. applies in adversary
proceedings. In these proceedings, the reference in Rule 58 F. R. Civ. P. to
the civil docket shall be read as a reference to the docket maintained by the
clerk under Rule 5003(a).
(As amended Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 7062. Stay of Proceedings to Enforce a Judgment
Rule 62 F. R. Civ. P. applies in adversary
proceedings.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991; Apr. 29,
1999, eff. Dec. 1, 1999.)
Rule 7064. Seizure of Person or Property
Rule 64 F. R. Civ. P. applies in adversary
proceedings.
Rule 7065. Injunctions
Rule 65 F. R. Civ. P. applies in adversary
proceedings, except that a temporary restraining order or preliminary
injunction may be issued on application of a debtor, trustee, or debtor in
possession without compliance with Rule 65(c).
Rule 7067. Deposit in Court
Rule 67 F. R. Civ. P. applies in adversary
proceedings.
Rule 7068. Offer of Judgment
Rule 68 F. R. Civ. P. applies in adversary
proceedings.
Rule 7069. Execution
Rule 69 F. R. Civ. P. applies in adversary
proceedings.
Rule 7070. Judgment for Specific Acts; Vesting Title
Rule 70 F. R. Civ. P. applies in adversary proceedings
and the court may enter a judgment divesting the title of any party and vesting
title in others whenever the real or personal property involved is within the
jurisdiction of the court.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 7071. Process in Behalf of and Against Persons
Not Parties
Rule 71 F. R. Civ. P. applies in adversary proceedings.
Rule 7087. Transfer of Adversary Proceeding
On motion and after a hearing, the court may transfer
an adversary proceeding or any part thereof to another district pursuant to 28
U.S.C. § 1412, except as provided in Rule 7019(2).
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
PART VIII. APPEALS TO DISTRICT COURT OR
BANKRUPTCY APPELLATE PANEL
Rule 8001. Manner of Taking Appeal; Voluntary
Dismissal; Certification to Court of Appeals
(a) Appeal as of Right; How Taken. An appeal from a judgment, order, or decree of a
bankruptcy judge to a district court or bankruptcy appellate panel as permitted
by 28 U.S.C. § 158(a)(1) or (a)(2) shall be taken by filing a notice of appeal
with the clerk within the time allowed by Rule 8002. An appellant's failure to
take any step other than timely filing a notice of appeal does not affect the
validity of the appeal, but is ground only for such action as the district
court or bankruptcy appellate panel deems appropriate, which may include
dismissal of the appeal. The notice of appeal shall (1) conform substantially
to the appropriate Official Form, (2) contain the names of all parties to the
judgment, order, or decree appealed from and the names, addresses, and
telephone numbers of their respective attorneys, and (3) be accompanied by the
prescribed fee. Each appellant shall file a sufficient number of copies of the
notice of appeal to enable the clerk to comply promptly with Rule 8004.
(b) Appeal by Leave; How Taken. An appeal from an interlocutory judgment, order, or
decree of a bankruptcy judge as permitted by 28 U.S.C. § 158(a)(3) shall be
taken by filing a notice of appeal, as prescribed in subdivision (a) of this
rule, accompanied by a motion for leave to appeal prepared in accordance with
Rule 8003 and with proof of service in accordance with Rule 8008.
(c) Voluntary Dismissal.
(1) Before Docketing. If an appeal has not been
docketed, the appeal may be dismissed by the bankruptcy judge on the filing of
a stipulation for dismissal signed by all the parties, or on motion and notice
by the appellant.
(2) After Docketing. If an appeal has been
docketed and the parties to the appeal sign and file with the clerk of the
district court or the clerk of the bankruptcy appellate panel an agreement that
the appeal be dismissed and pay any court costs or fees that may be due, the
clerk of the district court or the clerk of the bankruptcy appellate panel
shall enter an order dismissing the appeal. An appeal may also be dismissed on
motion of the appellant on terms and conditions fixed by the district court or
bankruptcy appellate panel.
(d) [Abrogated]
(e) Election to Have Appeal Heard by District Court
Instead of Bankruptcy Appellate Panel; Withdrawal of Election.
(1) Separate Writing for Election. An election
to have an appeal heard by the district court under 28 U.S.C. § 158(c)(1) may
be made only by a statement of election contained in a separate writing filed
within the time prescribed by 28 U.S.C. § 158(c)(1).
(2) Withdrawal of Election. A request to
withdraw the election may be filed only by written stipulation of all the
parties to the appeal or their attorneys of record. Upon such a stipulation,
the district court may either transfer the appeal to the bankruptcy appellate
panel or retain the appeal in the district court.
(f) Certification for Direct Appeal to Court of
Appeals.
(1) Timely Appeal Required. A certification of
a judgment, order, or decree of a bankruptcy court to a court of appeals under
28 U.S.C. § 158(d)(2) shall not be effective until a timely appeal has been
taken in the manner required by subdivisions (a) or (b) of this rule and the
notice of appeal has become effective under Rule 8002.
(2) Court Where Certification Made and Filed. A
certification that a circumstance specified in 28 U.S.C. §
158(d)(2)(A)(i)-(iii) exists shall be filed in the court in which a matter is
pending for purposes of 28 U.S.C. § 158(d)(2) and this rule. A matter is
pending in a bankruptcy court until the docketing, in accordance with Rule
8007(b), of an appeal taken under 28 U.S.C. § 158(a)(1) or (2), or the grant of
leave to appeal under 28 U.S.C. § 158(a)(3). A matter is pending in a district
court or bankruptcy appellate panel after the docketing, in accordance with
Rule 8007(b), of an appeal taken under 28 U.S.C. § 158(a)(1) or (2), or the
grant of leave to appeal under 28 U.S.C. § 158(a)(3).
(A) Certification by Court on Request or Court's Own
Initiative.
(i) Before Docketing or Grant of Leave to Appeal. Only
a bankruptcy court may make a certification on request or on its own initiative
while the matter is pending in the bankruptcy court.
(ii) After Docketing or Grant of Leave to Appeal. Only
the district court or bankruptcy appellate panel involved may make a
certification on request of the parties or on its own initiative while the
matter is pending in the district court or bankruptcy appellate panel.
(B) Certification by All Appellants and Appellees
Acting Jointly. A certification by all the appellants and appellees, if any,
acting jointly may be made by filing the appropriate Official Form with the
clerk of the court in which the matter is pending. The certification may be
accompanied by a short statement of the basis for the certification, which may
include the information listed in subdivision (f)(3)(C) of this rule.
(3) Request for Certification; Filing; Service;
Contents.
(A) A request for certification shall be filed, within
the time specified by 28 U.S.C. § 158(d)(2), with the clerk of the court in
which the matter is pending.
(B) Notice of the filing of a request for
certification shall be served in the manner required for service of a notice of
appeal under Rule 8004.
(C) A request for certification shall include the
following:
(i) the facts necessary to understand the question
presented;
(ii) the question itself;
(iii) the relief sought;
(iv) the reasons why the appeal should be allowed and
is authorized by statute or rule, including why a circumstance specified in 28
U.S.C. § 158(d)(2)(A)(i)-(iii) exists; and
(v) an attached copy of the judgment, order, or decree
complained of and any related opinion or memorandum.
(D) A party may file a response to a request for
certification or a cross request within 14 days after the notice of the request
is served, or another time fixed by the court.
(E) Rule 9014 does not govern a request, cross
request, or any response. The matter shall be submitted without oral argument
unless the court otherwise directs.
(F) A certification of an appeal under 28 U.S.C. §
158(d)(2) shall be made in a separate document served on the parties.
(4) Certification on Court's Own Initiative.
(A) A certification of an appeal on the court's own
initiative under 28 U.S.C. § 158(d)(2) shall be made in a separate document
served on the parties in the manner required for service of a notice of appeal
under Rule 8004. The certification shall be accompanied by an opinion or
memorandum that contains the information required by subdivision
(f)(3)(C)(i)-(iv) of this rule.
(B) A party may file a supplementary short statement
of the basis for certification within 14 days after the certification.
(5) Duties of Parties After Certification. A
petition for permission to appeal in accordance with F. R. App. P. 5 shall be
filed no later than 30 days after a certification has become effective as
provided in subdivision (f)(1).
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 23, 2008, eff.
Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 8002. Time for Filing Notice of Appeal
(a) Fourteen-Day Period. The notice of appeal shall be filed with the clerk
within 14 days of the date of the entry of the judgment, order, or decree
appealed from. If a timely notice of appeal is filed by a party, any other
party may file a notice of appeal within 14 days of the date on which the first
notice of appeal was filed, or within the time otherwise prescribed by this
rule, whichever period last expires. A notice of appeal filed after the
announcement of a decision or order but before entry of the judgment,
order, or decree shall be treated as filed after such
entry and on the day thereof. If a notice of appeal is mistakenly filed with
the district court or the bankruptcy appellate panel, the clerk of the district
court or the clerk of the bankruptcy appellate panel shall note thereon the
date on which it was received and transmit it to the clerk and it shall be
deemed filed with the clerk on the date so noted.
(b) Effect of Motion on Time for Appeal. If any party makes a timely motion of a type specified
immediately below, the time for appeal for all parties runs from the entry of
the order disposing of the last such motion outstanding. This provision applies
to a timely motion:
(1) to amend or make additional findings of fact under
Rule 7052, whether or not granting the motion would alter the judgment;
(2) to alter or amend the judgment under Rule 9023;
(3) for a new trial under Rule 9023; or
(4) for relief under Rule 9024 if the motion is filed
no later than 14 days after the entry of judgment. A notice of appeal filed
after announcement or entry of the judgment, order, or decree but before
disposition of any of the above motions is ineffective to appeal from the
judgment, order, or decree, or part thereof, specified in the notice of appeal,
until the entry of the order disposing of the last such motion outstanding.
Appellate review of an order disposing of any of the above motions requires the
party, in compliance with Rule 8001, to amend a previously filed notice of
appeal. A party intending to challenge an alteration or amendment of the
judgment, order, or decree shall file a notice, or an amended notice, of appeal
within the time prescribed by this Rule 8002 measured from the entry of the
order disposing of the last such motion outstanding. No additional fees will be
required for filing an amended notice.
(c) Extension of Time for Appeal.
(1) The bankruptcy judge may extend the time for
filing the notice of appeal by any party, unless the judgment, order, or decree
appealed from:
(A) grants relief from an automatic stay under § 362,
§ 922, § 1201, or § 1301;
(B) authorizes the sale or lease of property or the
use of cash collateral under § 363;
(C) authorizes the obtaining of credit under § 364;
(D) authorizes the assumption or assignment of an
executory contract or unexpired lease under § 365;
(E) approves a disclosure statement under § 1125; or
(F) confirms a plan under § 943, § 1129, § 1225, or §
1325 of the Code.
(2) A request to extend the time for filing a notice
of appeal must be made by written motion filed before the time for filing a
notice of appeal has expired, except that such a motion filed not later than 21
days after the expiration of the time for filing a notice of appeal may be granted
upon a showing of excusable neglect. An extension of time for filing a notice
of appeal may not exceed 21 days from the expiration of the time for filing a
notice of appeal otherwise prescribed by this rule or 14 days from the date of
entry of the order granting the motion, whichever is later.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 29, 1994, eff. Aug. 1, 1994; Apr. 11, 1997, eff.
Dec. 1, 1997; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 8003. Leave to Appeal
(a) Content of Motion; Answer. A motion for leave to appeal under 28 U.S.C. § 158(a)
shall contain: (1) a statement of the facts necessary to an understanding of
the questions to be presented by the appeal; (2) a statement of those questions
and of the relief sought; (3) a statement of the reasons why an appeal should
be granted; and (4) a copy of the judgment, order, or decree complained of and
of any opinion or memorandum relating thereto. Within 14 days after service of
the motion an adverse party may file with the clerk an answer in opposition.
(b) Transmittal; Determination of Motion. The clerk shall transmit the notice of appeal, the
motion for leave to appeal and any answer thereto to the clerk of the district
court or the clerk of the bankruptcy
appellate panel as soon as all parties have filed
answers or the time for filing an answer has expired. The motion and answer
shall be submitted without oral argument unless otherwise ordered.
(c) Appeal Improperly Taken Regarded as a Motion for
Leave to Appeal. If a required motion
for leave to appeal is not filed, but a notice of appeal is timely filed, the
district court or bankruptcy appellate panel may grant leave to appeal or
direct that a motion for leave to appeal be filed. The district court or the
bankruptcy appellate panel may also deny leave to appeal but in so doing shall
consider the notice of appeal as a motion for leave to appeal. Unless an order
directing that a motion for leave to appeal be filed provides otherwise, the
motion shall be filed within 14 days of entry of the order.
(d) Requirement of Leave to Appeal. If leave to appeal is required by 28 U.S.C. § 158(a)
and has not earlier been granted, the authorization of a direct appeal by a
court of appeals under 28 U.S.C. § 158(d)(2) shall be deemed to satisfy the
requirement for leave to appeal.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 23,
2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 8004. Service of the Notice of Appeal
The clerk shall serve notice of the filing of a notice
of appeal by mailing a copy thereof to counsel of record of each party other
than the appellant or, if a party is not represented by counsel, to the party's
last known address. Failure to serve notice shall not affect the validity of
the appeal. The clerk shall note on each copy served the date of the filing of
the notice of appeal and shall note in the docket the names of the parties to
whom copies are mailed and the date of the mailing. The clerk shall forthwith
transmit to the United States trustee a copy of the notice of appeal, but
failure to transmit such notice shall not affect the validity of the appeal.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 8005. Stay Pending Appeal
A motion for a stay of the judgment, order, or decree
of a bankruptcy judge, for approval of a supersedeas bond, or for other relief
pending appeal must ordinarily be presented to the bankruptcy judge in the
first instance. Notwithstanding Rule 7062 but subject to the power of the district
court and the bankruptcy appellate panel reserved hereinafter, the bankruptcy
judge may suspend or order the continuation of other proceedings in the case
under the Code or make any other appropriate order during the pendency of an
appeal on such terms as will protect the rights of all parties in interest. A
motion for such relief, or for modification or termination of relief granted by
a bankruptcy judge, may be made to the district court or the bankruptcy
appellate panel, but the motion shall show why the relief, modification, or
termination was not obtained from the bankruptcy judge. The district court or
the bankruptcy appellate panel may condition the relief it grants under this
rule on the filing of a bond or other appropriate security with the bankruptcy
court. When an appeal is taken by a trustee, a bond or other appropriate
security may be required, but when an appeal is taken by the United States or
an officer or agency thereof or by direction of any department of the
Government of the United States a bond or other security shall not be required.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 8006. Record and Issues on Appeal
Within 14 days after filing the notice of appeal as
provided by Rule 8001(a), entry of an order granting leave to appeal, or entry
of an order disposing of the last timely motion outstanding of a type specified
in Rule 8002(b), whichever is later, the appellant shall file with the clerk
and serve on the appellee a designation of the items to be included in the record
on appeal and a statement of the issues to
be presented. Within 14 days after the service of the
appellant's statement the appellee may file and serve on the appellant a
designation of additional items to be included in the record on appeal and, if
the appellee has filed a cross appeal, the appellee as cross appellant shall
file and serve a statement of the issues to be presented on the cross appeal
and a designation of additional items to be included in the record. A cross
appellee may, within 14 days of service of the cross appellant's statement,
file and serve on the cross appellant a designation of additional items to be
included in the record. The record on appeal shall include the items so
designated by the parties, the notice of appeal, the judgment, order, or decree
appealed from, and any opinion, findings of fact, and conclusions of law of the
court. Any party filing a designation of the items to be included in the record
shall provide to the clerk a copy of the items designated or, if the party fails
to provide the copy, the clerk shall prepare the copy at the party's expense.
If the record designated by any party includes a transcript of any proceeding
or a part thereof, the party shall, immediately after filing the designation,
deliver to the reporter and file with the clerk a written request for the
transcript and make satisfactory arrangements for payment of its cost. All
parties shall take any other action necessary to enable the clerk to assemble
and transmit the record.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 29, 1994, eff. Aug. 1, 1994; Mar. 26, 2009, eff.
Dec. 1, 2009.)
Rule 8007. Completion and Transmission of the Record;
Docketing of the Appeal
(a) Duty of Reporter to Prepare and File Transcript. On receipt of a request for a transcript, the reporter
shall acknowledge on the request the date it was received and the date on which
the reporter expects to have the transcript completed and shall transmit the
request, so endorsed, to the clerk or the clerk of the bankruptcy appellate
panel. On completion of the transcript the reporter shall file it with the
clerk and, if appropriate, notify the clerk of the bankruptcy appellate panel.
If the transcript cannot be completed within 30 days of receipt of the request
the reporter shall seek an extension of time from the clerk or the clerk of the
bankruptcy appellate panel and the action of the clerk shall be entered in the
docket and the parties notified. If the reporter does not file the transcript
within the time allowed, the clerk or the clerk of the bankruptcy appellate
panel shall notify the bankruptcy judge.
(b) Duty of Clerk to Transmit Copy of Record;
Docketing of Appeal. When the record
is complete for purposes of appeal, the clerk shall transmit a copy thereof
forthwith to the clerk of the district court or the clerk of the bankruptcy
appellate panel. On receipt of the transmission the clerk of the district court
or the clerk of the bankruptcy appellate panel shall enter the appeal in the
docket and give notice promptly to all parties to the judgment, order, or
decree appealed from of the date on which the appeal was docketed. If the
bankruptcy appellate panel directs that additional copies of the record be
furnished, the clerk of the bankruptcy appellate panel shall notify the
appellant and, if the appellant fails to provide the copies, the clerk shall
prepare the copies at the expense of the appellant.
(c) Record for Preliminary Hearing. If prior to the time the record is transmitted a party
moves in the district court or before the bankruptcy appellate panel for
dismissal, for a stay pending appeal, for additional security on the bond on
appeal or on a supersedeas bond, or for any intermediate order, the clerk at
the request of any party to the appeal shall transmit to the clerk of the
district court or the clerk of the bankruptcy appellate panel a copy of the
parts of the record as any party to the appeal shall designate.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 8008. Filing and Service
(a) Filing. Papers
required or permitted to be filed with the clerk of the district court or the
clerk of the bankruptcy appellate panel may be filed by mail addressed to the
clerk, but filing is not timely unless the papers are received by the clerk
within the time fixed for filing, except that briefs are deemed filed on the
day of mailing. An original and one copy of all papers shall be filed when an
appeal is to the district court; an original and three copies shall be filed
when an appeal is to a bankruptcy appellate panel. The
district court or bankruptcy appellate panel may
require that additional copies be furnished. Rule 5005(a)(2) applies to papers
filed with the clerk of the district court or the clerk of the bankruptcy
appellate panel if filing by electronic means is authorized by local rule
promulgated pursuant to Rule 8018.
(b) Service of All Papers Required. Copies of all papers filed by any party and not
required by these rules to be served by the clerk of the district court or the
clerk of the bankruptcy appellate panel shall, at or before the time of filing,
be served by the party or a person acting for the party on all other parties to
the appeal. Service on a party represented by counsel shall be made on counsel.
(c) Manner of Service. Service may be personal or by mail. Personal service
includes delivery of the copy to a clerk or other responsible person at the
office of counsel. Service by mail is complete on mailing.
(d) Proof of Service. Papers presented for filing shall contain an
acknowledgment of service by the person served or proof of service in the form
of a statement of the date and manner of service and of the names of the
persons served, certified by the person who made service. The clerk of the district
court or the clerk of the bankruptcy appellate panel may permit papers to be
filed without acknowledgment or proof of service but shall require the
acknowledgment or proof of service to be filed promptly thereafter.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 23,
1996, eff. Dec. 1, 1996.)
Rule 8009. Briefs and Appendix; Filing and Service
(a) Briefs. Unless
the district court or the bankruptcy appellate panel by local rule or by order
excuses the filing of briefs or specifies different time limits:
(1) The appellant shall serve and file a brief within
14 days after entry of the appeal on the docket pursuant to Rule 8007.
(2) The appellee shall serve and file a brief within
14 days after service of the brief of appellant. If the appellee has filed a
cross appeal, the brief of the appellee shall contain the issues and argument
pertinent to the cross appeal, denominated as such, and the response to the
brief of the appellant.
(3) The appellant may serve and file a reply brief
within 14 days after service of the brief of the appellee, and if the appellee
has cross-appealed, the appellee may file and serve a reply brief to the
response of the appellant to the issues presented in the cross appeal within 14
days after service of the reply brief of the appellant. No further briefs may
be filed except with leave of the district court or the bankruptcy appellate
panel.
(b) Appendix to Brief. If the appeal is to a bankruptcy appellate panel, the
appellant shall serve and file with the appellant's brief excerpts of the
record as an appendix, which shall include the following:
(1) The complaint and answer or other equivalent
pleadings;
(2) Any pretrial order;
(3) The judgment, order, or decree from which the
appeal is taken;
(4) Any other orders relevant to the appeal;
(5) The opinion, findings of fact, or conclusions of
law filed or delivered orally by the court and citations of the opinion if
published;
(6) Any motion and response on which the court
rendered decision;
(7) The notice of appeal;
(8) The relevant entries in the bankruptcy docket; and
(9) The transcript or portion thereof, if so required
by a rule of the bankruptcy appellate panel.
An appellee may also serve and file an appendix which
contains material required to be included by the appellant but omitted by
appellant.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 8010. Form of Briefs; Length
(a) Form of Briefs. Unless the district court or the bankruptcy appellate panel by local
rule otherwise provides, the form of brief shall be as follows:
(1) Brief of the Appellant. The brief of the
appellant shall contain under appropriate headings and in the order here
indicated:
(A) A table of contents, with page references, and a
table of cases alphabetically arranged, statutes and other authorities cited,
with references to the pages of the brief where they are cited.
(B) A statement of the basis of appellate
jurisdiction.
(C) A statement of the issues presented and the
applicable standard of appellate review.
(D) A statement of the case. The statement shall first
indicate briefly the nature of the case, the course of the proceedings, and the
disposition in the court below. There shall follow a statement of the facts
relevant to the issues presented for review, with appropriate references to the
record.
(E) An argument. The argument may be preceded by a
summary. The argument shall contain the contentions of the appellant with
respect to the issues presented, and the reasons therefor, with citations to
the authorities, statutes and parts of the record relied on.
(F) A short conclusion stating the precise relief
sought.
(2) Brief of the Appellee. The brief of the
appellee shall conform to the requirements of paragraph (1)(A)–(E) of this
subdivision, except that a statement of the basis of appellate jurisdiction, of
the issues, or of the case need not be made unless the appellee is dissatisfied
with the statement of the appellant.
(b) Reproduction of Statutes, Rules, Regulations, or
Similar Material. If determination of
the issues presented requires reference to the Code or other statutes, rules,
regulations, or similar material, relevant parts thereof shall be reproduced in
the brief or in an addendum or they may be supplied to the court in pamphlet
form.
(c) Length of Briefs. Unless the district court or the bankruptcy appellate
panel by local rule or order otherwise provides, principal briefs shall not
exceed 50 pages, and reply briefs shall not exceed 25 pages, exclusive of pages
containing the table of contents, tables of citations and any addendum
containing statutes, rules, regulations, or similar material.
Rule 8011. Motions
(a) Content of Motions; Response; Reply. A request for an order or other relief shall be made
by filing with the clerk of the district court or the clerk of the bankruptcy
appellate panel a motion for such order or relief with proof of service on all
other parties to the appeal. The motion shall contain or be accompanied by any
matter required by a specific provision of these rules governing such a motion,
shall state with particularity the grounds on which it is based, and shall set
forth the order or relief sought. If a motion is supported by briefs,
affidavits or other papers, they shall be served and filed with the motion. Any
party may file a response in opposition to a motion other than one for a
procedural order within seven days after service of the motion, but the
district court or the bankruptcy appellate panel may shorten or extend the time
for responding to any motion.
(b) Determination of Motions for Procedural Orders. Notwithstanding subdivision (a) of this rule, motions
for procedural orders, including any motion under Rule 9006, may be acted on at
any time, without awaiting a response thereto and without hearing. Any party
adversely affected by such action may move for reconsideration, vacation, or
modification of the action.
(c) Determination of All Motions. All motions will be decided without oral argument
unless the court orders otherwise. A motion for a stay, or for other emergency
relief may be denied if not presented promptly.
(d) Emergency Motions.Whenever a movant requests expedited action on a
motion on the ground that, to avoid irreparable harm, relief is needed in less
time than would normally be required for the district court or bankruptcy
appellate panel to receive and consider a response, the word “Emergency” shall
precede the title of the motion. The motion shall be accompanied by an
affidavit setting forth the nature of
the emergency. The motion shall state whether all
grounds advanced in support thereof were submitted to the bankruptcy judge and,
if any grounds relied on were not submitted, why the motion should not be
remanded to the bankruptcy judge for reconsideration. The motion shall include
the office addresses and telephone numbers of moving and opposing counsel and
shall be served pursuant to Rule 8008. Prior to filing the motion, the movant
shall make every practicable effort to notify opposing counsel in time for
counsel to respond to the motion. The affidavit accompanying the motion shall
also state when and how opposing counsel was notified or if opposing counsel
was not notified why it was not practicable to do so.
(e) Power of a Single Judge to Entertain Motions. A single judge of a bankruptcy appellate panel may
grant or deny any request for relief which under these rules may properly be
sought by motion, except that a single judge may not dismiss or otherwise
decide an appeal or a motion for leave to appeal. The action of a single judge
may be reviewed by the panel.
Rule 8012. Oral Argument
Oral argument shall be allowed in all cases unless the
district judge or the judges of the bankruptcy appellate panel unanimously
determine after examination of the briefs and record, or appendix to the brief,
that oral argument is not needed. Any party shall have an opportunity to file a
statement setting forth the reason why oral argument should be allowed.
Oral argument will not be allowed if (1) the appeal is
frivolous; (2) the dispositive issue or set of issues has been recently
authoritatively decided; or (3) the facts and legal arguments are adequately
presented in the briefs and record and the decisional process would not be
significantly aided by oral argument.
Rule 8013. Disposition of Appeal; Weight Accorded Bankruptcy
Judge's Findings of Fact
On an appeal the district court or bankruptcy
appellate panel may affirm, modify, or reverse a bankruptcy judge's judgment,
order, or decree or remand with instructions for further proceedings. Findings
of fact, whether based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the opportunity of
the bankruptcy court to judge the credibility of the witnesses.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 8014. Costs
Except as otherwise provided by law, agreed to by the
parties, or ordered by the district court or the bankruptcy appellate panel,
costs shall be taxed against the losing party on an appeal. If a judgment is
affirmed or reversed in part, or is vacated, costs shall be allowed only as
ordered by the court. Costs incurred in the production of copies of briefs, the
appendices, and the record and in the preparation and transmission of the
record, the cost of the reporter's transcript, if necessary for the
determination of the appeal, the premiums paid for cost of supersedeas bonds or
other bonds to preserve rights pending appeal and the fee for filing the notice
of appeal shall be taxed by the clerk as costs of the appeal in favor of the
party entitled to costs under this rule.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 8015. Motion for Rehearing
Unless the district court or the bankruptcy appellate
panel by local rule or by court order otherwise provides, a motion for
rehearing may be filed within 14 days after entry of the judgment of the
district court or the bankruptcy appellate panel. If a timely motion for
rehearing is filed, the time for appeal to the
court of appeals for all parties shall run from the
entry of the order denying rehearing or the entry of a subsequent judgment.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 8016. Duties of Clerk of District Court and
Bankruptcy Appellate Panel
(a) Entry of Judgment. The clerk of the district court or the clerk of the
bankruptcy appellate panel shall prepare, sign and enter the judgment following
receipt of the opinion of the court or the appellate panel or, if there is no
opinion, following the instruction of the court or the appellate panel. The
notation of a judgment in the docket constitutes entry of judgment.
(b) Notice of Orders or Judgments; Return of Record. Immediately on the entry of a judgment or order the
clerk of the district court or the clerk of the bankruptcy appellate panel
shall transmit a notice of the entry to each party to the appeal, to the United
States trustee, and to the clerk, together with a copy of any opinion
respecting the judgment or order, and shall make a note of the transmission in
the docket. Original papers transmitted as the record on appeal shall be
returned to the clerk on disposition of the appeal.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 8017. Stay of Judgment of District Court or
Bankruptcy Appellate Panel
(a) Automatic Stay of Judgment on Appeal. Judgments of the district court or the bankruptcy
appellate panel are stayed until the expiration of 14 days after entry, unless
otherwise ordered by the district court or the bankruptcy appellate panel.
(b) Stay Pending Appeal to the Court of Appeals. On motion and notice to the parties to the appeal, the
district court or the bankruptcy appellate panel may stay its judgment pending
an appeal to the court of appeals. The stay shall not extend beyond 30 days
after the entry of the judgment of the district court or the bankruptcy
appellate panel unless the period is extended for cause shown. If before the
expiration of a stay entered pursuant to this subdivision there is an appeal to
the court of appeals by the party who obtained the stay, the stay shall
continue until final disposition by the court of appeals. A bond or other
security may be required as a condition to the grant or continuation of a stay
of the judgment. A bond or other security may be required if a trustee obtains
a stay but a bond or security shall not be required if a stay is obtained by
the United States or an officer or agency thereof or at the direction of any
department of the Government of the United States.
(c) Power of Court of Appeals Not Limited. This rule does not limit the power of a court of
appeals or any judge thereof to stay proceedings during the pendency of an
appeal or to suspend, modify, restore, or grant an injunction during the
pendency of an appeal or to make any order appropriate to preserve the status
quo or the effectiveness of the judgment subsequently to be entered.
(Amended Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 8018. Rules by Circuit Councils and District
Courts; Procedure When There is No Controlling Law
(a) Local Rules by Circuit Councils and District
Courts.
(1) Circuit councils which have authorized bankruptcy
appellate panels pursuant to 28 U.S.C. § 158(b) and the district courts may,
acting by a majority of the judges of the council or district court, make and
amend rules governing practice and procedure for appeals from orders or
judgments of bankruptcy judges to the respective bankruptcy appellate panel or
district court consistent with —but not duplicative of—Acts of Congress and the
rules of this Part VIII. Local rules shall conform to any
uniform numbering system prescribed by the Judicial
Conference of the United States.
Rule 83 F. R. Civ. P. governs the procedure for making
and amending rules to govern appeals.
(2) A local rule imposing a requirement of form shall
not be enforced in a manner that causes a party to lose rights because of a
nonwillful failure to comply with the requirement.
(b) Procedure When There is No Controlling Law. A bankruptcy appellate panel or district judge may
regulate practice in any manner consistent with federal law, these rules,
Official Forms, and local rules of the circuit council or district court. No
sanction or other disadvantage may be imposed for noncompliance with any
requirement not in federal law, federal rules, Official Forms, or the local
rules of the circuit council or district court unless the alleged violator has
been furnished in the particular case with actual notice of the requirement.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 27,
1995, eff. Dec. 1, 1995.)
Rule 8019. Suspension of Rules in Part VIII
In the interest of expediting decision or for other
cause, the district court or the bankruptcy appellate panel may suspend the
requirements or provisions of the rules in Part VIII, except Rules 8001, 8002
and 8013, and may order proceedings in accordance with the direction.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 8020. Damages and Costs for Frivolous Appeal
If a district court or bankruptcy appellate panel
determines that an appeal from an order, judgment, or decree of a bankruptcy
judge is frivolous, it may, after a separately filed motion or notice from the
district court or bankruptcy appellate panel and reasonable opportunity to
respond, award just damages and single or double costs to the appellee.
(Added Apr. 11, 1997, eff. Dec. 1, 1997.)
PART IX. GENERAL PROVISIONS
Rule 9001. General Definitions
The definitions of words and phrases in § 101, § 902
and § 1101 and the rules of construction in § 102 of the Code govern their use
in these rules. In addition, the following words and phrases used in these
rules have the meanings indicated:
(1) “Bankruptcy clerk” means a clerk appointed
pursuant to 28 U.S.C. § 156(b).
(2) “Bankruptcy Code” or “Code” means title 11 of the
United States Code.
(3) “Clerk” means bankruptcy clerk, if one has been
appointed, otherwise clerk of the district court.
(4) “Court” or “judge” means the judicial officer
before whom a case or proceeding is pending.
(5) “Debtor.” When any act is required by these rules
to be performed by a debtor or when it is necessary to compel attendance of a
debtor for examination and the debtor is not a natural person: (A) if the
debtor is a corporation, “debtor” includes, if designated by the court, any or
all of its officers, members of its board of directors or trustees or of a
similar controlling body, a controlling stockholder or member, or any other
person in control; (B) if the debtor is a partnership, “debtor” includes any or
all of its general partners or, if designated by the court, any other person in
control.
(6) “Firm” includes a partnership or professional
corporation of attorneys or accountants.
(7) “Judgment” means any appealable order.
(8) “Mail” means first class, postage prepaid.
(9) “Notice provider” means any entity approved by the
Administrative Office of the United States Courts to give notice to creditors
under Rule 2002(g)(4).
(10) “Regular associate” means any attorney regularly
employed by, associated with, or counsel to an individual or firm.
(11) “Trustee” includes a debtor in possession in a
chapter 11 case.
(12) “United States trustee” includes an assistant
United States trustee and any designee of the United States trustee.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 25, 2005, eff. Dec. 1, 2005.)
Rule 9002. Meanings of Words in the Federal Rules of
Civil Procedure When Applicable to Cases Under the Code
The following words and phrases used in the Federal
Rules of Civil Procedure made applicable to cases under the Code by these rules
have the meanings indicated unless they are inconsistent with the context:
(1) “Action” or “civil action” means an adversary
proceeding or, when appropriate, a contested petition, or proceedings to vacate
an order for relief or to determine any other contested matter.
(2) “Appeal” means an appeal as provided by 28 U.S.C.
§ 158.
(3) “Clerk” or “clerk of the district court” means the
court officer responsible for the bankruptcy records in the district.
(4) “District court,” “trial court,” “court,” “district
judge,” or “judge” means bankruptcy judge if the case or proceeding is pending
before a bankruptcy judge.
(5) “Judgment” includes any order appealable to an
appellate court.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 22,
1993, eff. Aug. 1, 1993.)
Rule 9003. Prohibition of Ex Parte Contacts
(a) General Prohibition. Except as otherwise permitted by applicable law, any
examiner, any party in interest, and any attorney, accountant, or employee of a
party in interest shall refrain from ex parte meetings and communications with
the court concerning matters affecting a particular case or proceeding.
(b) United States Trustee. Except as otherwise permitted by applicable law, the
United States trustee and assistants to and employees or agents of the United
States trustee shall refrain from ex parte meetings and communications with the
court concerning matters affecting a particular case or proceeding. This rule
does not preclude communications with the court to discuss general problems of
administration and improvement of bankruptcy administration, including the
operation of the United States trustee system.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 9004. General Requirements of Form
(a) Legibility; Abbreviations. All petitions, pleadings, schedules and other papers
shall be clearly legible. Abbreviations in common use in the English language
may be used.
(b) Caption. Each
paper filed shall contain a caption setting forth the name of the court, the
title of the case, the bankruptcy docket number, and a brief designation of the
character of the paper.
Rule 9005. Harmless Error
Rule 61 F. R. Civ. P. applies in cases under the Code.
When appropriate, the court may order the correction of any error or defect or
the cure of any omission which does not affect substantial rights.
Rule 9005.1. Constitutional Challenge to a Statute—Notice,
Certification, and Intervention
Rule 5.1 F. R. Civ. P. applies in cases under the
Code.
(Added Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 9006. Computing and Extending Time
(a) Computing Time. The following rules apply
in computing any time period specified in these rules, in the Federal Rules of
Civil Procedure, in any local rule or court order, or in any statute that does
not specify a method of computing time.
(1) Period Stated in Days or a Longer Unit. When the
period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the
period;
(B) count every day, including intermediate Saturdays,
Sundays, and legal holidays; and
(C) include the last day of the period, but if the
last day is a Saturday, Sunday, or legal holiday, the period continues to run
until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(2) Period Stated in Hours. When the period is stated
in hours:
(A) begin counting immediately on the occurrence of
the event that triggers the period;
(B) count every hour, including hours during
intermediate Saturdays, Sundays, and legal holidays; and
(C) if the period would end on a Saturday, Sunday, or
legal holiday, then continue the period until the same time on the next day
that is not a Saturday, Sunday, or legal holiday.
(3) Inaccessibility of Clerk's Office. Unless the
court orders otherwise, if the clerk's office is inaccessible:
(A) on the last day for filing under Rule 9006(a)(1),
then the time for filing is extended to the first accessible day that is not a
Saturday, Sunday, or legal holiday; or
(B) during the last hour for filing under Rule
9006(a)(2), then the time for filing is extended to the same time on the first
accessible day that is not a Saturday, Sunday, or legal holiday.
(4) “Last Day” Defined. Unless a different time is set
by a statute, local rule, or order in the case, the last day ends:
(A) for electronic filing, at midnight in the court's
time zone; and
(B) for filing by other means, when the clerk's office
is scheduled to close.
(5) “Next Day” Defined. The “next day” is determined
by continuing to count forward when the period is measured after an event and
backward when measured before an event.
(6) “Legal Holiday” Defined. “Legal holiday” means:
(A) the day set aside by statute for observing New
Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving
Day, or Christmas Day;
(B) any day declared a holiday by the President or
Congress; and
(C) for periods that are measured after an event, any
other day declared a holiday by the state where the district court is located.
(In this rule, “state” includes the District of Columbia and any United States
commonwealth or territory.)
(b) Enlargement.
(1) In General. Except as provided in
paragraphs (2) and (3) of this subdivision, when an act is required or allowed
to be done at or within a specified period by these rules or by a notice given
thereunder or by order of court, the court for cause shown may at any time in
its discretion (1) with or without motion or notice order the period enlarged
if the request therefor is made before the expiration of the period originally
prescribed or as extended by a previous order or (2) on motion made after the
expiration of the specified period permit the act to be done where the failure
to act was the result of excusable neglect.
(2) Enlargement Not Permitted. The court may
not enlarge the time for taking action under Rules 1007(d), 2003(a) and (d),
7052, 9023, and 9024.
(3) Enlargement Governed by Other Rules. The court
may enlarge the time for taking action under Rules 1006(b)(2), 1017(e),
3002(c), 4003(b), 4004(a), 4007(c), 4008(a), 8002, and 9033, only to the extent
and under the conditions stated in those rules. In addition, the court may
enlarge the time to file the statement required under Rule 1007(b)(7), and to
file schedules and statements in a small business case under § 1116(3) of the
Code, only to the extent and under the conditions stated in Rule 1007(c).
(c) Reduction.
(1) In General. Except as provided in paragraph
(2) of this subdivision, when an act is required or allowed to be done at or
within a specified time by these rules or by a notice given thereunder or by
order of court, the court for cause shown may in its discretion with or without
motion or notice order the period reduced.
(2) Reduction Not Permitted. The court may not
reduce the time for taking action under Rules 2002(a)(7), 2003(a), 3002(c),
3014, 3015, 4001(b)(2), (c)(2), 4003(a), 4004(a), 4007(c), 4008(a), 8002, and
9033(b). In addition, the court may not reduce the time under Rule 1007(c) to
file the statement required by Rule 1007(b)(7).
(d) For Motions—Affidavits. A written motion, other than one which may be heard ex
parte, and notice of any hearing shall be served not later than seven days
before the time specified for such hearing, unless a different period is fixed
by these rules or by order of the court. Such an order may for cause shown be
made on ex parte application. When a motion is supported by affidavit, the
affidavit shall be served with the motion; and, except as otherwise provided in
Rule 9023, opposing affidavits may be served not later than one day before the
hearing, unless the court permits them to be served at some other time.
(e) Time of Service. Service of process and service of any paper other than
process or of notice by mail is complete on mailing.
(f) Additional Time After Service by Mail or Under
Rule 5(b)(2)(D), (E), or (F) F. R. Civ. P. When there is a right or requirement to act or undertake some
proceedings within a prescribed period after service and that service is by
mail or under Rule 5(b)(2)(D), (E), or (F) F. R. Civ. P., three days are added
after the prescribed period would otherwise expire under Rule 9006(a).
(g) Grain Storage Facility Cases. This rule shall not limit the court's authority under
§ 557 of the Code to enter orders governing procedures in cases in which the
debtor is an owner or operator of a grain storage facility.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 25,
1989, eff. Aug. 1, 1989; Apr. 30, 1991, eff. Aug. 1, 1991; Apr. 23, 1996, eff.
Dec. 1, 1996; Apr. 29, 1999, eff. Dec. 1, 1999; Apr. 23, 2001, eff. Dec. 1,
2001; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 23, 2008, eff. Dec. 1, 2008; Mar.
26, 2009, eff. Dec. 1, 2009.)
Rule 9007. General Authority to Regulate Notices
When notice is to be given under these rules, the
court shall designate, if not otherwise specified herein, the time within
which, the entities to whom, and the form and manner in which the notice shall
be given. When feasible, the court may order any notices under these rules to
be combined.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 9008. Service or Notice by Publication
Whenever these rules require or authorize service or
notice by publication, the court shall, to the extent not otherwise specified
in these rules, determine the form and manner thereof, including the newspaper
or other medium to be used and the number of publications.
Rule 9009. Forms
Except as otherwise provided in Rule 3016(d), the Official
Forms prescribed by the Judicial Conference of the United States shall be
observed and used with alterations as may be appropriate. Forms may be combined
and their contents rearranged to permit economies in their use. The Director of
the Administrative Office of the United States Courts may issue additional
forms for use under the Code. The forms shall be construed to be consistent
with these rules and the Code.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991; Apr. 23,
2008, eff. Dec. 1, 2008.)
Rule 9010. Representation and Appearances; Powers of
Attorney
(a) Authority to Act Personally or by Attorney. A debtor, creditor, equity security holder, indenture
trustee, committee or other party may (1) appear in a case under the Code and
act either in the entity's own behalf or by an attorney authorized to practice
in the court, and (2) perform any act not constituting the practice of law, by
an authorized agent, attorney in fact, or proxy.
(b) Notice of Appearance. An attorney appearing for a party in a case under the
Code shall file a notice of appearance with the attorney's name, office address
and telephone number, unless the attorney's appearance is otherwise noted in
the record.
(c) Power of Attorney. The authority of any agent, attorney in fact, or proxy
to represent a creditor for any purpose other than the execution and filing of
a proof of claim or the acceptance or rejection of a plan shall be evidenced by
a power of attorney conforming substantially to the appropriate Official Form.
The execution of any such power of attorney shall be acknowledged before one of
the officers enumerated in 28 U.S.C. § 459, § 953, Rule 9012, or a person
authorized to administer oaths under the laws of the state where the oath is
administered.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 9011. Signing of Papers; Representations to the
Court; Sanctions; Verification and Copies of Papers
(a) Signature. Every
petition, pleading, written motion, and other paper, except a list, schedule,
or statement, or amendments thereto, shall be signed by at least one attorney
of record in the attorney's individual name. A party who is not represented by
an attorney shall sign all papers. Each paper shall state the signer's address
and telephone number, if any. An unsigned paper shall be stricken unless
omission of the signature is corrected promptly after being called to the
attention of the attorney or party.
(b) Representations to the Court. By presenting to the court (whether by signing,
filing, submitting, or later advocating) a petition, pleading, written motion,
or other paper, an attorney or unrepresented party is certifying that to the
best of the person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances, —
(1) it is not being presented for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of
new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are likely to have evidentiary
support after a reasonable opportunity for further investigation or discovery;
and
(4) the denials of factual contentions are warranted
on the evidence or, if specifically so identified, are reasonably based on a
lack of information or belief.
(c) Sanctions. If,
after notice and a reasonable opportunity to respond, the court determines that
subdivision (b) has been violated, the court may, subject to the conditions
stated below, impose an appropriate sanction upon the attorneys, law firms, or
parties that have violated subdivision (b) or are responsible for the
violation.
(1) How Initiated.
(A) By Motion. A motion for sanctions under this rule
shall be made separately from other motions or requests and shall describe the
specific conduct alleged to violate subdivision (b). It shall be served as
provided in Rule 7004. The motion for sanctions may not be filed with or
presented to the court unless, within 21 days after service of the motion (or
such other period as the court may prescribe), the challenged paper, claim,
defense, contention, allegation, or denial is not withdrawn or appropriately
corrected, except that this limitation shall not apply if the conduct alleged
is the filing of a petition in violation of subdivision (b). If warranted, the
court may award to the party prevailing on the motion the reasonable expenses
and attorney's fees incurred in presenting or opposing the motion. Absent
exceptional circumstances, a law firm shall be held jointly responsible for
violations committed by its partners, associates, and employees.
(B) On Court's Initiative. On its own initiative, the
court may enter an order describing the specific conduct that appears to
violate subdivision (b) and directing an attorney, law firm, or party to show
cause why it has not violated subdivision (b) with respect thereto.
(2) Nature of Sanction; Limitations. A sanction
imposed for violation of this rule shall be limited to what is sufficient to
deter repetition of such conduct or comparable conduct by others similarly
situated. Subject to the limitations in subparagraphs (A) and (B), the sanction
may consist of, or include, directives of a nonmonetary nature, an order to pay
a penalty into court, or, if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of some or all of the
reasonable attorneys' fees and other expenses incurred as a direct result of
the violation.
(A) Monetary sanctions may not be awarded against a
represented party for a violation of subdivision (b)(2).
(B) Monetary sanctions may not be awarded on the court's
initiative unless the court issues its order to show cause before a voluntary
dismissal or settlement of the claims made by or against the party which is, or
whose attorneys are, to be sanctioned.
(3) Order. When imposing sanctions, the court
shall describe the conduct determined to constitute a violation of this rule
and explain the basis for the sanction imposed.
(d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply
to disclosures and discovery requests, responses, objections, and motions that
are subject to the provisions of Rules 7026 through 7037.
(e) Verification. Except as otherwise specifically provided by these rules, papers filed
in a case under the Code need not be verified. Whenever verification is
required by these rules, an unsworn declaration as provided in 28 U.S.C. § 1746
satisfies the requirement of verification.
(f) Copies of Signed or Verified Papers. When these rules require copies of a signed or
verified paper, it shall suffice if the original is signed or verified and the
copies are conformed to the original.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 11, 1997, eff. Dec. 1, 1997.)
Rule 9012. Oaths and Affirmations
(a) Persons Authorized to Administer Oaths. The following persons may administer oaths and
affirmations and take acknowledgments: a bankruptcy judge, clerk, deputy clerk,
United States trustee, officer authorized to administer oaths in proceedings
before the courts of the United States or under the laws of the state where the
oath is to be taken, or a diplomatic or consular officer of the United States
in any foreign country.
(b) Affirmation in Lieu of Oath. When in a case under the Code an oath is required to
be taken, a solemn affirmation may be accepted in lieu thereof.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991.)
Rule 9013. Motions: Form and Service
A request for an order, except when an application is
authorized by these rules, shall be by written motion, unless made during a
hearing. The motion shall state with particularity the grounds therefor, and
shall set forth the relief or order sought. Every written motion other than one
which may be considered ex parte shall be served by the moving party on the
trustee or debtor in possession and on those entities specified by these rules
or, if service is not required or the entities to be served are not specified
by these rules, the moving party shall serve the entities the court directs.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 9014. Contested Matters
(a) Motion. In
a contested matter not otherwise governed by these rules, relief shall be
requested by motion, and reasonable notice and opportunity for hearing shall be
afforded the party against whom relief is sought. No response is required under
this rule unless the court directs otherwise.
(b) Service. The
motion shall be served in the manner provided for service of a summons and
complaint by Rule 7004. Any paper served after the motion shall be served in
the manner provided by Rule 5(b) F. R. Civ. P.
(c) Application of Part VII Rules. Except as otherwise provided in this rule, and unless
the court directs otherwise, the following rules shall apply: 7009, 7017, 7021,
7025, 7026, 7028–7037, 7041, 7042, 7052, 7054–7056, 7064, 7069, and 7071. The
following subdivisions of Fed. R. Civ. P. 26, as incorporated by Rule 7026,
shall not apply in a contested matter unless the court directs otherwise:
26(a)(1) (mandatory disclosure), 26(a)(2) (disclosures regarding expert
testimony) and 26(a)(3) (additional pre-trial disclosure), and 26(f) (mandatory
meeting before scheduling conference/discovery plan). An entity that desires to
perpetuate testimony may proceed in the same manner as provided in Rule 7027
for the taking of a deposition before an adversary proceeding. The court may at
any stage in a particular matter direct that one or more of the other rules in
Part VII shall apply. The court shall give the parties notice of any order
issued under this paragraph to afford them a reasonable opportunity to comply
with the procedures prescribed by the order.
(d) Testimony of Witnesses. Testimony of witnesses with respect to disputed
material factual issues shall be taken in the same manner as testimony in an
adversary proceeding.
(e) Attendance of Witnesses. The court shall provide procedures that enable parties
to ascertain at a reasonable time before any scheduled hearing whether the
hearing will be an evidentiary hearing at which witnesses may testify.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 29,
1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2004, eff.
Dec. 1, 2004.)
Rule 9015. Jury Trials
(a) Applicability of Certain Federal Rules of Civil
Procedure. Rules 38, 39, 47–49, and
51, F. R. Civ. P., and Rule 81(c) F. R. Civ. P. insofar 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 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 pursuant to 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 within any applicable time limits specified by local rule.
(c) Applicability of Rule 50 F. R. Civ. P. Rule 50 F. R. Civ. P. applies in cases and
proceedings, except that any renewed motion for judgment or request for a new
trial shall be filed no later than 14 days after the entry of judgment.
(Added Apr. 11, 1997, eff. Dec. 1, 1997; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 9016. Subpoena
Rule 45 F. R. Civ. P. applies in cases under the Code.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 9017. Evidence
The Federal Rules of Evidence and Rules 43, 44 and
44.1 F. R. Civ. P. apply in cases under the Code.
Rule 9018. Secret, Confidential, Scandalous, or
Defamatory Matter
On motion or on its own initiative, with or without
notice, the court may make any order which justice requires (1) to protect the
estate or any entity in respect of a trade secret or other confidential
research, development, or commercial information, (2) to protect any entity
against scandalous or defamatory matter contained in any paper filed in a case
under the Code, or (3) to protect governmental matters that are made
confidential by statute or regulation. If an order is entered under this rule
without notice, any entity affected thereby may move to vacate or modify the
order, and after a hearing on notice the court shall determine the motion.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 9019. Compromise and Arbitration
(a) Compromise. On motion by the trustee and after notice and a hearing, the court may
approve a compromise or settlement. Notice shall be given to creditors, the
United States trustee, the debtor, and indenture trustees as provided in Rule
2002 and to any other entity as the court may direct.
(b) Authority to Compromise or Settle Controversies
Within Classes. After a hearing on
such notice as the court may direct, the court may fix a class or classes of
controversies and authorize the trustee to compromise or settle controversies
within such class or classes without further hearing or notice.
(c) Arbitration. On stipulation of the parties to any controversy affecting the estate
the court may authorize the matter to be submitted to final and binding
arbitration.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 22, 1993, eff. Aug. 1, 1993.)
Rule 9020. Contempt Proceedings
Rule 9014 governs a motion for an order of contempt
made by the United States trustee or a party in interest.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. 1, 1991; Apr. 23, 2001, eff. Dec. 1, 2001.)
Rule 9021. Entry of Judgment
A judgment or order is effective when entered under
Rule 5003.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 9022. Notice of Judgment or Order
(a) Judgment or Order of Bankruptcy Judge. Immediately on the entry of a judgment or order the
clerk shall serve a notice of entry in the manner provided in Rule 5(b) F. R.
Civ. P. on the contesting parties and on other entities as the court directs.
Unless the case is a chapter 9 municipality case, the clerk shall forthwith
transmit to the United States trustee a copy of the judgment or order. Service
of the notice shall be noted in the docket. Lack of notice of the entry does
not affect the time to appeal or relieve or authorize the court to relieve a
party for failure to appeal within the time allowed, except as permitted in
Rule 8002.
(b) Judgment or Order of District Judge. Notice of a judgment or order entered by a district
judge is governed by Rule 77(d) F. R. Civ. P. Unless the case is a chapter 9
municipality case, the clerk shall forthwith transmit to the United States
trustee a copy of a judgment or order entered by a district judge.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 23, 2001, eff. Dec. 1, 2001.)
Rule 9023. New Trials; Amendment of Judgments
Except as provided in this rule and Rule 3008, Rule 59
F. R. Civ. P. applies in cases under the Code. A motion for a new trial or to
alter or amend a judgment shall be filed, and a court may on its own order a
new trial, no later than 14 days after entry of judgment.
(As amended Mar. 26, 2009, eff. Dec. 1, 2009.)
Rule 9024. Relief from Judgment or Order
Rule 60 F. R. Civ. P. applies in cases under the Code
except that (1) a motion to reopen a case under the Code or for the
reconsideration of an order allowing or disallowing a claim against the estate
entered without a contest is not subject to the one year limitation prescribed
in Rule 60(c), (2) a complaint to revoke a discharge in a chapter 7 liquidation
case may be filed only within the time allowed by § 727(e) of the Code, and (3)
a complaint to revoke an order confirming a plan may be filed only within the
time allowed by § 1144, § 1230, or § 1330.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991; Apr. 23,
2008, eff. Dec. 1, 2008.)
Rule 9025. Security: Proceedings Against Sureties
Whenever the Code or these rules require or permit the
giving of security by a party, and security is given in the form of a bond or
stipulation or other undertaking with one or more sureties, each surety submits
to the jurisdiction of the court, and liability may be determined in an
adversary proceeding governed by the rules in Part VII.
Rule 9026. Exceptions Unnecessary
Rule 46 F. R. Civ. P. applies in cases under the Code.
Rule 9027. Removal
(a) Notice of Removal.
(1) Where Filed; Form and Content. A notice of
removal shall be filed with the clerk for the district and division within
which is located the state or federal court where the civil action is pending.
The notice shall be signed pursuant to Rule 9011 and contain a short and plain
statement of the facts which entitle the party filing the notice to remove,
contain a statement that upon removal of the claim or cause of action the
proceeding is core or non-core and, if non-core, that the party filing the
notice does or does not consent to entry of final orders or judgment by the
bankruptcy judge, and be accompanied by a copy of all process and pleadings.
(2) Time for Filing; Civil Action Initiated Before
Commencement of the Case Under the Code. If the claim or cause of action in
a civil action is pending when a case under the Code is commenced, a notice of
removal may be filed only within the longest of (A) 90 days after the order for
relief in the case under the Code, (B) 30 days after entry of an order
terminating a stay, if the claim or cause of action in a civil action has been
stayed under § 362 of the Code, or (C) 30 days after a trustee qualifies in a
chapter 11 reorganization case but not later than 180 days after the order for
relief.
(3) Time for Filing; Civil Action Initiated After
Commencement of the Case Under the Code. If a claim or cause of action is
asserted in another court after the commencement of a case under the Code, a
notice of removal may be filed with the clerk only within the shorter of (A) 30
days after receipt, through service or otherwise, of a copy of the initial
pleading setting forth the claim or cause of action sought to be removed, or
(B) 30 days after receipt of the summons if the initial pleading has been filed
with the court but not served with the summons.
(b) Notice. Promptly
after filing the notice of removal, the party filing the notice shall serve a
copy of it on all parties to the removed claim or cause of action.
(c) Filing in Non-Bankruptcy Court. Promptly after filing the notice of removal, the party
filing the notice shall file a copy of it with the clerk of the court from
which the claim or cause of action is removed. Removal of the claim or cause of
action is effected on such filing of a copy of the notice of removal. The
parties shall proceed no further in that court unless and until the claim or
cause of action is remanded.
(d) Remand. A
motion for remand of the removed claim or cause of action shall be governed by
Rule 9014 and served on the parties to the removed claim or cause of action.
(e) Procedure After Removal.
(1) After removal of a claim or cause of action to a
district court the district court or, if the case under the Code has been
referred to a bankruptcy judge of the district, the bankruptcy judge, may issue
all necessary orders and process to bring before it all proper parties whether
served by process issued by the court from which the claim or cause of action
was removed or otherwise.
(2) The district court or, if the case under the Code
has been referred to a bankruptcy judge of the district, the bankruptcy judge,
may require the party filing the notice of removal to file with the clerk
copies of all records and proceedings relating to the claim or cause of action in
the court from which the claim or cause of action was removed.
(3) Any party who has filed a pleading in connection
with the removed claim or cause of action, other than the party filing the
notice of removal, shall file a statement admitting or denying any allegation
in the notice of removal that upon removal of the claim or cause of action the
proceeding is core or non-core. If the statement alleges that the proceeding is
non-core, it shall state that the party does or does not consent to entry of
final orders or judgment by the bankruptcy judge. A statement required by this
paragraph shall be signed pursuant to Rule 9011 and shall be filed not later
than 14 days after the filing of the notice of removal. Any party who files a
statement pursuant to this paragraph shall mail a copy to every other party to
the removed claim or cause of action.
(f) Process After Removal. If one or more of the defendants has not been served
with process, the service has not been perfected prior to removal, or the
process served proves to be defective, such process or service may be completed
or new process issued pursuant to Part VII of these rules. This subdivision
shall not deprive any defendant on whom process is served after removal of the
defendant's right to move to remand the case.
(g) Applicability of Part VII. The rules of Part VII apply to a claim or cause of
action removed to a district court from a federal or state court and govern
procedure after removal. Repleading is not necessary unless the court so
orders. In a removed action in which the defendant has not answered, the
defendant shall answer or present the other defenses or objections available
under the rules of Part VII within 21 days following the receipt through
service or otherwise of a copy of the initial pleading setting forth the claim
for relief on which the action or proceeding is based, or within 21 days
following the service of summons on such initial pleading, or within seven days
following the filing of the notice of removal, whichever period is longest.
(h) Record Supplied. When a party is entitled to copies of the records and
proceedings in any civil action or proceeding in a federal or a state court, to
be used in the removed civil action or proceeding, and the clerk of the federal
or state court, on demand accompanied by payment or tender of the lawful fees,
fails to deliver certified copies, the court may, on affidavit reciting the
facts, direct such record to be supplied by affidavit or otherwise. Thereupon
the proceedings, trial and judgment may be had in the court, and all process
awarded, as if certified copies had been filed.
(i) Attachment or Sequestration; Securities. When a claim or cause of action is removed to a
district court, any attachment or sequestration of property in the court from
which the claim or cause of action was removed shall hold the property to
answer the final judgment or decree in the same manner as the property would
have been held to answer final judgment or decree had it been rendered by the
court from which the claim or cause of action was removed. All bonds,
undertakings, or security given by either party to the claim or cause of action
prior to its removal shall remain valid and effectual notwithstanding such
removal. All injunctions issued, orders entered and other proceedings had prior
to removal shall remain in full force and effect until dissolved or modified by
the court.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff.
Dec. 1, 2009.)
Rule 9028. Disability of a Judge
Rule 63 F. R. Civ. P. applies in cases under the Code.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 9029. Local Bankruptcy Rules; Procedure When
There is No Controlling Law
(a) Local Bankruptcy Rules.
(1) Each district court acting by a majority of its
district judges may make and amend rules governing practice and procedure in
all cases and proceedings within the district court's bankruptcy jurisdiction
which are consistent with—but not duplicative of—Acts of Congress and these
rules and which do not prohibit or limit the use of the Official Forms. Rule 83
F. R. Civ. P. governs the procedure for making local rules. A district court
may authorize the bankruptcy judges of the district, subject to any limitation or
condition it may prescribe and the requirements of 83 F. R. Civ. P., to make
and amend rules of practice and procedure which are consistent with —but not
duplicative of—Acts of Congress and these rules and which do not prohibit or
limit the use of the Official Forms. Local rules shall conform to any uniform
numbering system prescribed by the Judicial Conference of the United States.
(2) A local rule imposing a requirement of form shall
not be enforced in a manner that causes a party to lose rights because of a
nonwillful failure to comply with the requirement.
(b) Procedure When There is No Controlling Law. A judge may regulate practice in any manner consistent
with federal law, these rules, Official Forms, and local rules of the district.
No sanction or other disadvantage may be imposed for noncompliance with any
requirement not in federal law, federal rules, Official Forms, or the local
rules of the district unless the alleged violator has been furnished in the
particular case with actual notice of the requirement.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987; Apr. 30,
1991, eff. Aug. 1, 1991; Apr. 27, 1995, eff. Dec. 1, 1995.)
Rule 9030. Jurisdiction and Venue Unaffected
These rules shall not be construed to extend or limit
the jurisdiction of the courts or the venue of any matters therein.
(As amended Mar. 30, 1987, eff. Aug. 1, 1987.)
Rule 9031. Masters Not Authorized
Rule 53 F. R. Civ. P. does not apply in cases under
the Code.
Rule 9032. Effect of Amendment of Federal Rules of
Civil Procedure
The Federal Rules of Civil Procedure which are
incorporated by reference and made applicable by these rules shall be the
Federal Rules of Civil Procedure in effect on the effective date of these rules
and as thereafter amended, unless otherwise provided by such amendment or by
these rules.
(As amended Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 9033. Review of Proposed Findings of Fact and
Conclusions of Law in Non-Core Proceedings
(a) Service. In
non-core proceedings heard pursuant to 28 U.S.C. § 157(c)(1), the bankruptcy
judge shall file proposed findings of fact and conclusions of law. The clerk
shall serve forthwith copies on all parties by mail and note the date of
mailing on the docket.
(b) Objections: Time for Filing. Within 14 days after being served with a copy of the
proposed findings of fact and conclusions of law a party may serve and file
with the clerk written objections which identify the specific proposed findings
or conclusions objected to and state the grounds for such objection. A party
may respond to another party's objections within 14 days after being served
with a copy thereof. A party objecting to the bankruptcy judge's proposed
findings or conclusions shall arrange promptly for the transcription of the
record, or such portions of it as all parties may agree upon or the bankruptcy
judge deems sufficient, unless the district judge otherwise directs.
(c) Extension of Time. The bankruptcy judge may for cause extend the time for
filing objections by any party for a period not to exceed 21 days from the
expiration of the time otherwise prescribed by this rule. A request to extend
the time for filing objections must be made before the time for filing
objections has expired, except that a request made no more than 21 days after
the expiration of the time for filing objections may be granted upon a showing
of excusable neglect.
(d) Standard of Review. The district judge shall make a de novo review upon
the record or, after additional evidence, of any portion of the bankruptcy
judge's findings of fact or conclusions of law to which specific written
objection has been made in accordance with this rule. The district judge may
accept, reject, or modify the proposed findings of fact or conclusions of law,
receive further evidence, or recommit the matter to the bankruptcy judge with
instructions.
(Added Mar. 30, 1987, eff. Aug. 1, 1987; Mar. 26,
2009, eff. Dec. 1, 2009.)
Rule 9034. Transmittal of Pleadings, Motion Papers,
Objections, and Other Papers to the United States Trustee
Unless the United States trustee requests otherwise or
the case is a chapter 9 municipality case, any entity that files a pleading,
motion, objection, or similar paper relating to any of the following matters
shall transmit a copy thereof to the United States
trustee within the time required by these rules for service of the paper:
(a) a proposed use, sale, or lease of property of the
estate other than in the ordinary course of business;
(b) the approval of a compromise or settlement of a
controversy;
(c) the dismissal or conversion of a case to another
chapter;
(d) the employment of professional persons;
(e) an application for compensation or reimbursement
of expenses;
(f) a motion for, or approval of an agreement relating
to, the use of cash collateral or authority to obtain credit;
(g) the appointment of a trustee or examiner in a
chapter 11 reorganization case;
(h) the approval of a disclosure statement;
(i) the confirmation of a plan;
(j) an objection to, or waiver or revocation of, the
debtor's discharge;
(k) any other matter in which the United States
trustee requests copies of filed papers or the court orders copies transmitted
to the United States trustee.
(Added Apr. 30, 1991, eff. Aug. 1, 1991.)
Rule 9035. Applicability of Rules in Judicial
Districts in Alabama and North Carolina
In any case under the Code that is filed in or
transferred to a district in the State of Alabama or the State of North
Carolina and in which a United States trustee is not authorized to act, these
rules apply to the extent that they are not inconsistent with any federal
statute effective in the case.
(Added Apr. 30, 1991, eff. Aug. 1, 1991; amended Apr.
11, 1997, eff. Dec. 1, 1997.)
Rule 9036. Notice by Electronic Transmission
Whenever the clerk or some other person as directed by
the court is required to send notice by mail and the entity entitled to receive
the notice requests in writing that, instead of notice by mail, all or part of
the information required to be contained in the notice be sent by a specified
type of electronic transmission, the court may direct the clerk or other person
to send the information by such electronic transmission. Notice by electronic
means is complete on transmission.
(Added Apr. 22, 1993, eff. Aug. 1, 1993; amended Apr.
25, 2005, eff. Dec. 1, 2005.)
Rule 9037. Privacy Protection for Filings Made with
the Court
(a) Redacted Filings. Unless the court orders otherwise, in an electronic or
paper filing made with the court that contains an individual's social-security
number, taxpayer-identification number, or birth date, the name of an
individual, other than the debtor, known to be and identified as a minor, or a
financial-account number, a party or nonparty making the filing may include
only:
(1) the last four digits of the social-security number
and taxpayer-identification number;
(2) the year of the individual's birth;
(3) the minor's initials; and
(4) the last four digits of the financial-account
number.
(b) Exemptions from the Redaction Requirement. The redaction requirement does not apply to the
following:
(1) a financial-account number that identifies the
property allegedly subject to forfeiture in a forfeiture proceeding;
(2) the record of an administrative or agency
proceeding unless filed with a proof of claim;
(3) the official