Updates have been made to the Chambers Guidelines consistent with recent changes to the local rules. The scheduling charts for Chapter 13 matters have been updated. Judge Duncan has revised his guidelines to indicate that a hearing is required, regardless of whether an objection is filed, on a motion to approve the fees of counsel for a chapter 11 debtor-in-possession. Judge Duncan also updated the section on proposed orders to set forth a requirement to leave space on the last page of a proposed order for an electronic signature.
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Judges' Corner Archive
Debtors who are incapacitated, disabled or on active military duty in a combat zone may request a finding by the court that the debtor is unable to complete the requirements for pre-filing credit counseling (11 U.S.C. § 109(h)(1)) or an instructional course concerning personal financial management as a condition of discharge (11 U.S.C. §§ 727(a)(11), and 1328(g)(1)). The court has posted four form motions for use in requesting this relief pursuant to 11 U.S.C. 109(h)(4). A debtor may request:
a waiver of both the credit counseling and debtor education requirements in a chapter 7 case with one motion;
a waiver only of credit counseling in a chapter 13 case;
a waiver only of financial management requirement later in a chapter 13 case; and
a waiver of the financial management requirement in a chapter 7 case when credit counseling was not initially waived.
Beginning November 1, 2013, the debtor is responsible for selecting a passive notice hearing date, completing the form motion, serving all parties in interest, filing documentation of the condition as noted in the motion, and presenting a completed proposed order. A new CM/ECF event has been created for the filing of documentation in support of these motions (Restricted Documents in Support of Waiver of Credit Counseling or Financial Management) and these documents are available only to the trustee, United States trustee, and judge. Please do not use previous versions of these forms.
The chapter 13 plan provides that if a secured tax debt is to be valued, the debtor will file a separate motion to value the claim and determine priority. The bar is presently using several different events to file the motion and filing the motion passively and non-passively. The Court has eliminated the CM/ECF events "Determine Tax Liability" and "Establish Tax Claim" and created the event "Value Tax Claim and Establish Priority," which should be used for this type of motion. Pursuant to SC LBR 9013-4, this motion should be set for a definite hearing and not filed passively.
The following technical amendments are made to the local rules effective November 1:
(1) SC LBR 3015-3(a) was amended to clarify that a domestic support obligation recipient should be served with a copy of Exhibit A to that rule;
(2) Exhibits A and C to SC LBR 3015-5 were amended to clarify that a debtor does not need to file a certificate of completion of an instructional course in financial management if the debtor has sought and received a waiver; and
(3) 9013-3 was amended to clarify the obligation to file a certificate of service for delegated matters within seven days and clarify that a delegated party may attach a Notice of Electronic Filing to the certificate of service as evidence that some or all of the parties who require notice have received it.
(4) As indicated in the August 30, 2013 announcement on the local rules, delegated matters have expanded in SC LBR 5075-1 and more matters have been added for self-scheduling under SC LBR 9013-4. In SC LBR 5075-1, delegations were added to (a)(6)-(9), (b)(1)-(3), (c)(3)-(9), and (d)(12)-(22). Various other delegated sections were amended to clarify that the obligations imposed therein arise regardless of whether the delegated party is the prevailing party. Exhibits A and C to 9013-4 were restyled to organize self-scheduled matters into certain categories. Exhibit A was also amended to add: extensions of time to file a chapter 11 plan; motions under SC LBR 1015-1; and requests for exemptions from credit counseling or financial management. The time period to object to a motion for relief from the co-debtor stay was also reduced from 21 to 14 days. The Court removed from the passive list applications to employ and consensual motions to modify a mortgage, which may be considered ex parte. Exhibit C was amended to add: applications to employ nunc pro tunc; reconsideration of stay relief orders; motions under Rule 3002.1; motions to extend the exclusivity period; motions to appoint a chapter 11 trustee; motions to convert or dismiss by a creditor or party in interest and by the debtor (if there was a previous conversion); motions by the United States trustee under § 707(b); and motions to continue the administration of the case after the death of the debtor.
New CM/ECF events are available for the self-scheduled matters added to SC LBR 9013-4. The Court continues to modify CM/ECF events for matters delegated under SC LBR 5075-1. Delegated parties should serve and file a certificate of service for delegated matters under SC LBR 5075-1 when the docket text indicates: "Notice and service of this event are delegated pursuant to SC LBR 5075-1." The judges wish to thank the Local Rules Committee for reviewing of these modifications.
The American Bar Association has set aside the week of October 20 - 26, 2013 to recognize attorneys who represent those who cannot afford help with legal matters and to encourage those who have not yet taken up the cause of helping others. Our bench is especially appreciative of the efforts of the bar of our court to ensure that those most in need receive assistance with their bankruptcy cases. We celebrate the long tradition of the bankruptcy bar providing free legal assistance through organized efforts coordinated by the South Carolina Bar, Legal Services, and this court. The South Carolina Bankruptcy Law Association has recognized those extending exceptional efforts to assist with pro bono and promoted participation by its members. If you have taken one or more cases on a pro bono basis in 2013 or provided financial or law firm support toward these efforts, thank you. If you have not done so please consider the opportunity and promote equal access to justice.
David R. Duncan
Chief U. S. Bankruptcy Judge
District of South Carolina
Many attorneys practicing before the Bankruptcy Court have expressed concern over the uncertainty that exists with regard to a possible government shut-down and the impact it will have on you and your clients, debtor and creditor alike. While we are no better positioned to predict the outcome of votes in Congress to fund the government, the Court does want to share both what we do know and our plans. Congress has not yet passed a budget or a continuing resolution (CR) for fiscal year 2014 (which begins October 1). If Congress fails to enact a CR by October 1, 2013 most federal agencies will have to shut down - save for essential operations. The Judiciary, however, will continue to operate for an estimated 10 business days (through approximately October 15, 2013) using available funds. There are certain limitations to these operations; but parties and litigants will notice little change.
After the 10-day period, if there is still no budget or CR, the Bankruptcy Court will operate under the Anti-Deficiency Act, which allows "essential work" to continue despite the lapse in appropriations. The clerk and judges are developing a plan should this become reality. In the event of a lapse in funds beyond October 15 the court will implement a plan to continue the “exercise of the judicial power of the United States” and dispose of matters that “preserve life or property.” The plan will provide for the staffing necessary to perform essential functions, including accepting new cases and proceedings for filing and hearing cases and controversies where essential to protect property.
The United States trustee will separately issue a statement concerning meetings of creditors and other functions of that office at the appropriate time. If asked, the Court will assist the United States trustee in disseminating the statement.
David R. Duncan
The Judges have noticed that some parties are not serving documents and notices as required by the Local Rules. The September 1 amendments to the local rules delegated the service of several orders and notices to designated parties. For delegated matters, the Court has begun adding the following docket text:
|Notice and service of this event are delegated pursuant to SC LBR 5075-1|
In other instances specified under SC LBR 5075-1, but where this language does not yet appear in the docket text, the Court has not yet completed the necessary technical changes to CM/ECF to implement the change to the rule. Attorneys should, in the interim, verify that the Court has made service but are not yet required to serve the delegated matter. As the technical changes are made to each event the noted docket text will be added to highlight the need for service by the delegated party. When an attorney serves a delegated matter, a certificate of service should be promptly filed pursuant to SC LBR 9013-3. A Notice of Electronic Filing may be attached to the certificate of service as proof of service on those parties who receive notice electronically through CM/ECF.
The announced revisions to the local rules will become effective September 1, 2013. With the local rule changes, revisions have been made to the Chambers' Guidelines of all judges. Several operating orders and administrative orders have been abolished as a result of being incorporated in the local rules and the Guidelines for the Filing of Documents has been revised. Revisions to the Court's calendars have been made to reflect the availability of new self-scheduled matters pursuant to SC LBR 9013-4. Additional matters may be approved for self-scheduling in the coming weeks. The Court has also implemented a new interface to allow for parties in interest to file a claim or related documents without a CM/ECF password. Creditors are encouraged to use the new interface rather than submit paper claims.
Laura Austin has been selected to serve as Clerk of Court effective September 9, 2013. Ms. Austin is currently the Director of Operations for the Bankruptcy Court in Delaware and she previously served as a staff attorney for District Courts in the Middle District of Florida and the Northern District of West Virginia. Jeff Davis will resume his duties as Chief Deputy Clerk of Court with the thanks of the judges for his service as Acting Clerk of Court. The judges know that you will join us in welcoming Ms. Austin as she assumes her new duties.
After considering comments made by the Bar and the Local Rules Committee, revisions to the local rules have been made and will be effective September 1, 2013. The amendments incorporate many provisions presently found in various Operating Orders and Chambers Guidelines and signal necessary cost savings measures for the Clerk's Office and the Judiciary. Notes regarding the changes are appended to the amended rules. Amendments of note include:
1. Rules 4004-1, 6004-1, 6007-1, and 9013-4 were substantially revised to consolidate the procedures for self-scheduled matters.
2. Rule 9013-4 was amended to add matters to the passive list and create a new category of self-scheduled matters that may be self-scheduled by movants.
3. Rule 2091-1 was amended to add paragraph (b) to reflect that an attorney can withdraw from receiving notices in a case after the attorney's interest in the case has ended. A new CM/ECF event entitled "Attorney Withdrawal from Notice" will be available September 1 to effectuate the withdrawal.
4. Rule 3001-1 was added to recognize the Court's new electronic claim interface known as "ePOC." ePOC will be available by September 1 and may be used to submit claims and related documents without a CM/ECF login and password.
5. Rule 4003-2 was amended to provide a procedure for chapter 13 debtors to obtain a specific order avoiding a lien once the chapter 13 plan payments have been completed and a discharge issued.
6. Rule 5075-1 was added to delegate notice of certain notices and orders to specified parties.
7. Rule 9013-1 was amended. New paragraph (d) was added to include portions of the Chambers Guidelines and a new CM/ECF event "Request for Scheduling Order" was created to allow litigants to request the entry of a scheduling order. Paragraph (e) was added to allow the Clerk's Office to strike matters not properly scheduled, docketed, or noticed without the issuance of a deficiency notice or further order.
8. Rule 9033-1 was added to provide a procedure for transmittal of proposed findings of fact and conclusions of law to the United States District Court.
9. Rule 9036-1 was added to incorporate provisions of the Chambers Guidelines and add provisions directing debtors and creditors to register for electronic notice with the Bankruptcy Noticing Center.
The judges will release revised Chambers Guidelines before September 1. Jeff Davis will review the local rule changes with the Bar on August 8 at 10:30 a.m. in Charleston, on August 15 at 2:00 p.m. in Columbia and that evening at the Bankla monthly meeting, and on August 22 at 2:00 p.m. in Spartanburg. The judges wish to thank the Bar and the Local Rules Committee for their comments and work on the revisions.