Thursday, December 20, 2018

Amendments to Bankruptcy Laws Effective December 1, 2018

All In Favor?

It seems like the Federal Rules of Bankruptcy Procedure are amended every year at the recommendation of an advisory committee since 2006 after the last major change in bankruptcy laws in 2005.  For 2018, there were some meaningful amendments, however, unlike previous years, the changes will not effect my clients much, in that the amendments dealt with, for the most part, appeal and electronic filing laws. 

So, how does all this happen?  The amendments address issues identified by a committee, called an Advisory Committee.  The committee is made up of federal judges, bankruptcy attorneys, and others. The rule amendments are approved by the U.S. Supreme Court.

Key Rule Amendments Have A Certain Appeal. This year almost all of the rule amendments are fairly technical.  If you are a bankruptcy rules geek, like myself, then you will want to read the following:
  • Rule 3002 has been amended to address procedures for handling payment changes in home equity lines of credit in consumer cases.
  • Rule 5005 has been amended to require electronic filing absent good cause and to make that a national rule. As the Advisory Committee commented, “Electronic filing has matured” and “The time has come to seize the advantages of electronic filing by making it mandatory in all districts, except for filings made by an individual not represented by an attorney.” Almost all filings are electronic now anyway so this is more of the rule reflecting current practice than requiring actual changes.
  • Rule 7004(a) has been tweaked to pick up the accurate cross-references to Federal Rule of Civil Procedure 4.
  • Rule 7062 applies Federal Rule of Civil Procedure 62 to adversary proceedings but clarifies that the stay of proceedings to enforce a judgment is only for 14 days in an adversary proceeding and not the 30 days in a district court case.
  • Rule 8002 has been amended to clarify, among other items, time requirements for filing a notice of appeal.
  • Rule 8006 now allows the bankruptcy court to file a statement on the merits of direct certification to the court of appeals when the parties make a joint certification.
  • Rules 8007 and 8010 discard the term “supersedeas bond” and instead use “security provided to obtain a stay of judgment” to account for changes to Federal Rule of Civil Procedure 62.
  • Several rules, including Rules 8011, 8013, 8015, 8016, and 8022 have been amended to reflect electronic filing and to limit the size of briefs using word counts rather than page limits.
  • Rule 8017 has been revised to address amicus briefs and their potential impact on the disqualification of a judge.
  • Rule 8018.1 has been added to allow a district court to treat an appeal from a bankruptcy court judgment — if the district court concludes the bankruptcy court lacked constitutional authority to enter the judgment — as proposed findings of fact and conclusions of law.
  • Rule 9025 has been revised to reflect the different types of security for appeals and their providers.
 I know, for most people this is not very exciting stuff.  If you would like to know more about the amendments or have any specific questions, I suggest you contact your local bankruptcy attorney.