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Chambers' Bulletins

Wed, 4/25/2007 - 5:00 am

After consideration of the comments of bar and public pursuant to prior notice on March 7, 2007 and a review of procedures used in neighboring bankruptcy courts, the Judges have agreed to the following changes to the Local Rules in order to promote the availability of representation in consumer cases filed under the Bankruptcy Reform Act of 2005. Any party with additional final comments should send those to on or before May 3, 2007 at 2 pm.

Amend Local Rule 1019-1 to provide:

(c) Applicable to cases governed by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, if there is neither a confirmed plan nor an order directing otherwise, the chapter 13 trustee shall disburse funds received prior to the entry of an order of dismissal or conversion in the following order:

1. unless otherwise ordered, disburse the lesser of the amount of debtor's attorney's proof of claim, to the extent that the claim has not been satisfied; $500.00; or the remaining balance of funds received by the trustee prior to dismissal or conversion. The attorney may seek a greater payment upon timely application to the Court made prior to the disbursement by the chapter 13 trustee; and

2. as adequate protection, disburse funds received prior to entry of an order of dismissal or conversion to the holders of allowed secured claims and allowed claims for executory contracts scheduled to be paid through the most recently filed plan, divided based upon the monthly payments provided therein. Subject to the availability of funds, creditors will be paid a full payment for each full month beginning thirty (30) days after the order for relief and continuing through the date of dismissal or conversion. No payment will be made for partial months; and

3. any funds remaining after these payments, and all funds received after conversion or dismissal, shall be returned to the debtor.

Amend Exhibit A to Local Rule 3015-1 to provide:

First unnumbered paragraph:

The following chapter 13 plan (the Chapter 13 Plan) and related motions (the Related Motions) have been filed in the above-captioned case. They will be considered at the Confirmation Hearing, notice of which is given in the Notice of Meeting of Creditors. Any objections to the confirmation of the plan, to the payment of attorney's fees in accordance with the distribution set forth herein, to the Motion to Value Security, to the Motion to Avoid Judicial Lien or to Avoid a Nonpurchase Money, Nonpossessory Security Interest and Lien, or to the assumption or rejection of an executory contract, all as requested herein, must be made in writing, served upon the undersigned counsel for the debtor(s), **, the chapter 13 trustee, ( **, appropriate address for chapter 13 trustee) and filed with the Court, United States Bankruptcy Court, 1100 Laurel Street, Columbia, SC 29201, within twenty-five (25) days from the date of filing this Notice, Chapter 13 Plan and Related Motions. All objections must comply with South Carolina Local Bankruptcy Rule 9014-4 (SC LBR 9014-4).

Numbered paragraph 3:

Subject to review and objection, a proof of claim for the attorney's fees of the debtor(s) in the amount of $_______ will be filed, and may be amended from time to time and shall be paid pursuant to this plan. Following confirmation of the plan and unless the Court orders otherwise, the chapter 13 trustee shall disburse $500.00 for the attorney's proof of claim in the initial disbursement made by the chapter 13 trustee.1 After the initial disbursement by the chapter 13 trustee, the balance of the attorneys proof of claim shall be paid with all funds remaining each month after payment to secured and domestic support creditors as set forth herein.

In instances where an attorney assumes representation in pending pro se cases and a plan is confirmed, a separate order may be entered by the Court, without further notice, which allows for the payment of a portion of the attorney's fees in advance of payments to other creditors.

1 The chapter 13 trustee shall not disburse more than the unpaid balance on the attorney's proof of claim or balance of the funds received under Paragraph 1 in the initial disbursement.

Numbered paragraph 5:

(a) All 11 U.S.C. 507(a)(1) priority creditors (pre-petition domestic support obligations) shall be treated as follows:

To ___________, the pre-petition domestic support obligations shall be paid in full, by paying $______ or more per month until the balance is paid in full, except as set forth in Paragraphs 2 and 3.

All post-petition domestic support obligations will be paid by the debtor(s) outside the plan and shall be kept current.

(b) Except as set forth in Paragraphs 2 and 3 and subsequent to the above, all other 11 U.S.C. 507 priority creditors (including, but not limited to, pre-petition taxes or other claims by governmental units) will have the allowed amounts of their pre-petition claims paid on a pro-rata basis. The debtor(s) shall pay all similar post-petition priority obligations to such creditors as they come due directly to such creditors.

Fri, 4/20/2007 - 5:00 am

The Judges and staff of the Bankruptcy Court are pleased to report that Judge Duncan is resting well after successful surgery yesterday at the MUSC hospital in Charleston. The Judge and his family wish to thank all of you who have sent expressions of concern and best wishes in recent days. We look forward to his return to work in a few weeks.

Fri, 4/20/2007 - 5:00 am

The Judges of the U.S. Bankruptcy Court are seeking comments from the Bar and public on the proposed Local Rule set forth below. The proposed Rule has been approved by the Court's Advisory Committee. Comments should be forwarded to on or before May 11, 2007.

The proposed rule provides an opportunity for review of discipline imposed on an attorney in instances of suspension or disbarment by allowing for an en banc review by all the bankruptcy judges of the court, in addition to customary rights for reconsideration or appeal.

Local Rule 2090-2 Attorneys- Discipline and Disbarment

(a) Standard of Conduct- Any attorney admitted to practice before this Court who violates the rules of this Court or, except as otherwise provided by the rules or an order of this Court, the South Carolina Rules of Professional Conduct (Rule 407 of the South Carolina Appellate Court Rules) as adopted by the United States District Court for the District of South Carolina and amended from time to time, or engages in any other misconduct as defined by Local Civil Rule 83.I.08 DSC (RDE Rule V(H)) may be subject to discipline.

(b) Reciprocal Discipline- Any attorney admitted to practice before this Court shall, upon being subjected to public discipline by any state or federal court or by the state bar of any state, inform the clerk of court of such action in writing within ten (10) days of the disciplinary action. The Court may, after notice and a hearing, impose reciprocal discipline on the attorney.

An attorney shall be immediately suspended from practice in this Court upon suspension or disbarment by the United States District Court for the District of South Carolina.

(c) Application- The procedure set forth in this rule applies to all contested or adversary proceedings in which discipline is sought against the attorney, including suspension or disbarment from practice before this Court.

(d) Procedure- For acts or omissions violating subsection (a), regardless of whether such acts or omissions occurred in the course of the attorney-client relationship, for good cause shown, and after notice and a hearing, an attorney admitted to practice before this Court may be disbarred, definitely or indefinitely suspended, privately or publicly reprimanded, or subjected to other disciplinary action as the circumstances may warrant.

If a bankruptcy judge orders the suspension or disbarment of an attorney, the attorney may move for relief from the order, as provided by the Federal Rules of Bankruptcy Procedure, or appeal to the United States District Court.

In addition thereto, pursuant to this Local Rule, if the attorney only seeks to alter or amend the extent of the discipline imposed by the order, the attorney may move to alter or amend the order to that limited extent and request that the hearing on such motion be had before all judges of the Bankruptcy Court. All available judges of the Bankruptcy Court shall convene within thirty (30) days for a hearing within the District to consider the attorney’s motion. The failure to request a hearing before all bankruptcy judges within the attorney’s motion shall be deemed a waiver of the right to a hearing by all bankruptcy judges.

(e) Referral- The Court may refer any disciplinary action to the Chief Judge of the United States District Court for the District of South Carolina, any state court authorities regulating the attorney’s ability to practice law, or any other appropriate authority for review and investigation.

(f) Reinstatement- Any attorney suspended or disbarred may move for reinstatement pursuant to the terms and conditions of the order disciplining the attorney. The motion for reinstatement shall be served by the attorney upon the United States Trustee and all standing and panel trustees within the District and the motion shall set forth a statement of facts describing all discipline imposed upon the attorney and the attorney’s grounds for reinstatement. The motion for reinstatement shall be addressed to the Chief Judge of this Court who shall either act on the motion, after consultation with all judges, or who shall set a hearing on the Motion before all available judges of the Court. Reinstatement shall be conditioned upon the attorney’s compliance with all orders disciplining the attorney and the attorney being admitted to practice in the United States District Court for the District of South Carolina.

(g) Clerk- The clerk of court shall maintain a public record of all public orders disciplining attorneys admitted to practice before this Court.

(h) Jurisdiction Reserved- Nothing contained in these rules shall be construed to limit this Court’s power to regulate litigants, sanction misconduct, or control admission to the practice before it pursuant to Local Civil Rule 83.IX.01 DSC, 11 U.S.C. § 105, Fed. R. Bankr. P. 9011, the Court’s inherent power to regulate litigants, or other applicable law.

Wed, 4/18/2007 - 5:00 am

Pursuant to agreement of the Judges of the Court, Judges Waites and Burris will hear matters and may issue orders in Judge Duncan's cases beginning April 18, 2007 and thereafter until further notice.

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