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Bankruptcy Chat: Proposed Amendments to Bankruptcy Rules Published for Comment

The Judicial Conference Advisory Committee on Bankruptcy Rules has published for comment proposed amendments to Bankruptcy Rules 2002, 2004, and 8012. Comments on the proposed rule amendments will be accepted at through February 15, 2019. If approved, the amendments will become effective December 1, 2019.

Rule 2004 Examinations

Rule 2004 provides for the examination under oath of debtors and other entities that might have knowledge of any matter that relates 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 discharge.” Subsection (c) of the rule provides that “[t]he attendance of any person for examination and the production of documentary evidence may be compelled in a manner provided in Rule 9016…” Rule 9016 incorporates Rule 45 of the Federal Rules of Civil Procedure and provides that the production of documents may be compelled by means of a subpoena.

The proposed amendments add electronically stored information to Rule 2004(c) document requests. The amendments acknowledge that information that is frequently sought in connection with Rule 2004 examinations today is stored electronically. The amendments also harmonize Rule 2004 with the current provisions of Civil Procedure Rule 45 and Bankruptcy Rule 9016 and will permit a subpoena for a Rule 2004 examination to be issued by the court in which a bankruptcy case is pending even if the examination will take place in another district.

As originally proposed, amended Rule 2004 also would have required that a request for the production of documents or electronically stored information be proportional to the needs of the case and of the party seeking production. However, after its spring meeting earlier this year, a closely divided Committee voted not to proceed wit the proportionality amendment.

Creditor Notices

Rule 2002(a) requires that creditors receive at least 21 days’ notice of certain bankruptcy events, including the date set for the meeting of creditors, the deadline to file proofs of claim or objections to plan confirmation, the time fixed to accept or reject plan modifications, and notice of proposed sales of estate property. Subsection (h) provides an exception to the general noticing requirements in Chapter 7 cases for creditors who do not file a timely proof of claim. The proposed amendment would extend the exception to Chapter 12 and 13 cases, although even creditors who do not file timely proofs of claim would receive notice of the filing of the case and the date of the meeting of creditors and the confirmation hearing. The amendments also would shorten the time in which notices are to be given to creditors and other parties in interest from 90 days to 70 days after a case is filed or converted to a case under Chapter 12 or 13.

Corporate Disclosure Statement

Bankruptcy Rule 8012 is modeled after Civil Rule 26.1 and requires every nongovernmental corporate party to a bankruptcy appeal to file a disclosure statement identifying the party’s parent or any corporation that owns at least 10 percent of the party’s stock. The proposed amendment would extend the requirement to corporate debtors and would additionally require the disclosure of every debtor in the underlying bankruptcy case. According to the Committee note, the names of the debtors are not always included in the caption of appeals.