Brown Bag 11/21: Rules, Forms, Procedures

U.S. Trustee Hearing Room, 1132 Bishop Street, Suite 606, Honolulu, Hawaii
Monday, November 21, 2011
12:00 - 1:15 p.m.

The Bankruptcy Court will be presenting information on new and amended rules and forms effective December 1, 2011, practice pointers, and upcoming developments in PACER and CM/ECF. Judge Robert Faris also will be available to address questions regarding procedures.

If you wish, you may participate from your office or another location at no charge via a teleconference call and WebEx. Note: WebEx does not provide a video stream; it allows you to see the same screen shots on your monitor as those being shown to attendees in the room and you will need the phone connection for the audio.

Downloads: Slideshow - Handouts - Rules

Proposed Amendments to Local Bankruptcy Rules

On October 7, 2011, the court gave notice of proposed amendments to the local bankruptcy rules, to be effective December 1, 2011. Following receipt of comments, additional changes are being proposed. Comments may be made by reply email no later than November 10, 2011.

Fee Increases Effective November 1, 2011

The Judicial Conference of the United States has amended the miscellaneous fee schedules for federal courts effective November 1, 2011. Certain fees are being increased for inflation. Click above link to view changes to the Bankruptcy Court Miscellaneous Fee Schedule (Appendix to 28 U.S.C. § 1930) for the most common items. In particular, practitioners should note the new amounts for filing the following.

Electronic Devices Policy

The bankruptcy court has adopted the above policy on electronic devices. Please click on the above link for details. This policy concerns only the bankruptcy court office space and courtroom located at 1132 Bishop Street, Honolulu, Hawaii.

Rules Amendments Effective December 1, 2011

Absent contrary action by Congress, amendments to the Federal Rules of Bankruptcy Procedure and certain forms will become effective December 1, 2011. In addition, several changes to the local bankruptcy rules are being proposed, with comments due October 28, 2011.

• Federal Rules Amendments
  
  
• Local Rules Amendments

McVCIS

The court is now participating in McVCIS, a nationwide judiciary Voice Case Information System. Dial a toll free number (866) 222-8029 and access code 44 for the District of Hawaii case information, including:

See the VCIS page for more information.

CMECF 4.1 Upgrade and System Availability

Installation of CM/ECF 4.1. The court will be installing a major upgrade to the system beginning 6:00 p.m. Friday evening, July 29, and expected to complete on Sunday afternoon. Although there will be no interruption in viewing documents in PACER, ECF users will not be able to file documents electronically during the installation.

CMECF Version 4.1 Changes

1. Summary
2. Claim Amounts
3. Filing Agents
4. Passwords
5. BNC

CM/ECF Upgrade

Release 4.1. The court plans to upgrade the CM/ECF system to Release 4.1 later this month. As currently scheduled, the system will be unavailable from Friday evening, July 22, through Sunday evening, July 24. More information will be given as we approach those dates.

Filers using bankruptcy software should check with their providers as to whether any software updates are required for CM/ECF 4.1. A number of courts have implemented the latest CM/ECF version starting last Fall, and the major software suppliers have tested their products to address any needed modifications.

PDF/A Standard. The upcoming release will continue to accept the same PDF documents for uploading in CM/ECF. However, users should be aware that future plans call for allowing only "PDF/A" standard documents which provide greater security. Among other things, creating a PDF/A file effectively "flattens" fillable fields and removes embedded scripts. Most of the current PDF software and word processing applications are capable of creating PDF/A files. Images created by scanning documents will also need to meet the PDF/A standard, so users should ensure that their scanning equipment and software can create PDF/A files. Requiring the PDF/A standard for uploads in CM/ECF will likely be implemented during the next calendar year and users should plan ahead if new software or equipment is needed.

Chapter 13 Interest Rate

Facebook & Twitter Accounts

The court has created accounts for Facebook and Twitter in an effort to make court news more accessible. Check out the following links:

Facebook
Twitter (@HIBKC)

Notice to Attorneys for Debtors

Debtors' Counsel: Please do not include in the initial creditor matrix a judge or clerk's office if your client is involved in pending litigation. You should be including the names and addresses of parties to the action, but the bankruptcy court does not consider the presiding judge or the clerk to be a "party in interest." Compliance with LBR 2072-1 (Notice to Other Courts) requires the filing of an individualized notice of the bankruptcy filing. Using the form notice of bankruptcy case and 341 meeting sent by the Bankruptcy Noticing Center (commonly referred to as the "341 notice") to those listed on the creditor matrix should not be used as a substitute.

Including the name of a judge or clerk's office on the creditor matrix poses the the following problems. On September 27, 2010, the Supreme Court of the State of Hawaii adopted the Hawaii Court Records Rules (HCRR). These rules require the state court clerks to include all papers sent to them in the case file, even if the document is not a pleading. The first problem with a state court clerk receiving the general "341 notice" is that the individual state court case is not identified and time-consuming research must be done to ensure that the paper is placed in the correct case file. The second problem is that the 341 notice contains the debtor's complete Social Security Number. Placing this document with the full SSN in the file violates the State's privacy rules and requires the filing of a motion to seal. Because the Bankruptcy Noticing Center is sending the document only because a debtor's attorney has included the state court on the creditor matrix, it is the responsibility of the debtor's attorney to file a motion to seal or possibly be subject to sanctions in the state court.

Some of the petition preparing software packages are capable of creating a form "Notice of Automatic Stay" or similar document advising litigating parties and courts of a bankruptcy filing. A notice such as this should be used instead of causing the 341 notice to be sent to the state court. When sending to the court, make sure you have identified the title of the action and case number.

Revised Form Motion to Value Collateral

A form motion to value collateral is used in conjunction with a chapter 13 plan for the purpose of modifying a creditor's rights ("stripping" a lien) to the extent permitted by statute. The form has been revised to emphasize the following:

1. The motion may seek relief against only one creditor. Security interests held by different creditors require separate motions.
2. The motion may involve only one item of collateral.
3. The motion must list ALL liens in the subject collateral so the court can analyze valuation and which rights may be modified.
4. A motion involving only one creditor but multiple loans must identify the loans by the last 4 digits of the account and indicate with a checkbox which loan(s) is/are to be "stripped."

Also please note that under a rule amendment effective January 1, 2011, denial of plan confirmation requires the refiling of any related plan motion together with any amended plan.

Office and Courtroom Renovation

The Clerk's Office and 3rd Floor Courtroom will be undergoing renovation over the next several months. The project involves consolidating space with the Ninth Circuit Court of Appeals as a cost containment measure. Chambers and offices for the circuit judges and staff will move from the 6th Floor of 1132 Bishop Street into available space in the Clerk's Office on the 2nd Floor. In addition, a new bench in the 3rd Floor courtroom will be built to accommodate a 3-judge panel when appeals are heard in Honolulu, currently three 1-week sessions during the year. Carpet and wall covering also will be replaced throughout the bankruptcy court space.

To accommodate construction, the public counter and computer terminals will be relocated to the 3rd Floor training and conference rooms effective Friday, October 29, 2010. In addition, the court will be closed daily from 12:00 - 1:00 p.m. When work commences in the courtroom, hearings and trials will be held in the 6th Floor courtroom, Suite 601. Notices of hearing should continue to use the 3rd Floor courtroom as the location - when necessary, signs will be posted at the Clerk's Office entrance to advise attorneys, parties, and the public that a hearing or trial has been moved to Suite 601.

Increase in Pro Hac Vice Fee

On September 23, 2010, the United States District Court issued an order setting the fee to accompany an application for appearing pro hac vice at $300. The effective date is October 1, 2010, and is applicable in both the district court and the bankruptcy court.

Future Dates for Meetings of Creditors (PDF)

For planning purposes, the dates scheduled for meetings of creditors for the remainder of the calendar year are now posted at the court's website under Court Calendars. Dates in 2011 will be posted when they become available from the Office of the United States Trustee. Dates are usually planned well in advance but are always subject to change. Any questions about a particular date, time, or location should be directed to the Office of the United States Trustee.

Attendance at 341 Meetings

The following is being sent on behalf of the Office of the United States Trustee

Re: Allowance of Meetings of Creditors via telephone

To Consumer Bankruptcy Practitioners

In the last year or so, there have been increasing requests for debtors to appear at their meetings of creditors by telephone. The Office of the U.S. Trustee has accommodated some of those requests. But the number of requests and the reasons for the requests have caused us to review the circumstances under which the U.S. Trustee will allow debtors to appear by telephone.

Henceforth, the UST will generally allow telephonic appearance for meetings of creditors under the following circumstances: 1) severe medical condition, documented; 2) deployment under military orders, documented; 3) imprisonment, documented. The UST may, on a case by case basis, allow telephonic appearances for other reasons of similar severity. In any case for which a telephonic appearance may be approved, there must be a satisfactory mechanism for confirming the debtor's identity and social security number, e.g., appearance and confirmation at a different U.S. Trustee office.

The following reasons are generally not sufficient to warrant telephonic appearances: debtor has already moved to the mainland; debtor is job hunting; debtor is working a job elsewhere; debtor has long-planned vacation; debtor has family obligation. Such reasons may or may not warrant a continuance of the first meeting, subject to the approval of the Chapter 7 Trustee, provided notification is given well in advance of the scheduled meeting. Attorneys should advise debtors that their presence at a meeting is required generally 25-40 days after the commencement of the case (up to 60 for neighbor islands) and at any continued meeting, and so should plan accordingly.

Curtis Ching
Assistant United States Trustee
1132 Bishop St, Rm 602
Honolulu, HI 96813
Telephone: (808) 522-8154
Email: curtis.b.ching@usdoj.gov

Meetings of Creditors
The Office of the United States Trustee has requested the following information be disseminated regarding meetings of creditors (341 meetings).

1. Reminder for Debtor identification and Social Security numbers at 341 meetings:

For many years now, due to the rise in identify thefts nationwide, debtors have been required to show proof of their identify and proof of their social security number. Acceptable picture identification includes a valid state-issued drivers license, military identification, state-issued picture identification card, passport, legal resident alien card, student photo identification or work photo identification. Acceptable proof of social security number includes an original social security card, a current original W2 form, recent original pay advice, health card, or some other original official document which shows name and social security number. Trustees are instructed to continue the meeting to the trustee’s next calendar date if the Debtor does not have the required identification.

2. Telephone interpreter services:

Effective immediately, debtors with limited English proficiency (LEP) may request, free of charge, the use of a telephone interpreter service for their section 341 meetings. This service is currently available at the Honolulu, Hawaii meeting of creditors room only. To the extent possible, debtors or their attorneys should notify the trustee in advance of the meeting in order to avoid disruption to the flow of meetings. Services are available in over 165 languages. Trustees have been instructed not to allow debtors' attorneys or relatives to provide interpreting services for the debtor.

PDF Headers on Filed Documents
The most recent upgrade to CM/ECF changed the default for viewing filed documents with PDF header information (case and docket number and filing date). If you would like the PDF header to always appear, please see these instructions.