The Judicial Conference Advisory Committee on Bankruptcy Rules has proposed amendments to the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and the Official Bankruptcy Forms and requested that the proposals be circulated to the bench, bar, and public for comment. The proposed amendments, Advisory Committee reports, and other information are posted on the Judiciary’s website. Comments to the proposed amendments must be submitted no later than February 15, 2017.
Members of the public who wish to present testimony may appear at public hearings on these proposals. The Advisory Committee will convene a hearing on the proposed amendments on January 24, 2017, in Pasadena, California. Anyone wishing to testify must notify the Advisory Committee at least 30 days before the scheduled hearing. Requests to testify should be emailed to Rules_Support@ao.uscourts.gov, with a copy mailed to:
Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E., Suite 7-240
Washington, D.C. 20544
Following the public comment period, the Advisory Committee will decide whether to submit the proposed amendments to the Committee on Rules of Practice and Procedure. If approved, the proposed amendments would become effective on December 1, 2018, with or without revision by the Advisory Committee, the Committee on Rules of Practice and Procedure, the Judicial Conference, and the U.S. Supreme Court, provided that Congress does not act to defer, modify, or reject them.
The proposed amendments include the following, among other changes:
Bankruptcy Rule 8002(b) (timeliness of tolling motions). Bankruptcy Rule 8002(b) and its counterpart, Rule (a)(4) of the Federal Rules of Appellate Procedure (the “FRAP”), contain a list of post-judgment motions that toll the time for filing an appeal. Under the current rules, the motion must be “timely file[d]” in order to have a tolling effect. Amendments to the FRAP have been approved by the Supreme Court and submitted to Congress and are scheduled to become effective on December 1, 2016. The amendment to FRAP 4(a)(4) resolves a circuit split on the question whether a tolling motion filed outside the time period specified by the relevant rule, but nevertheless ruled on by the district court, is timely filed for purposes of the rule. Adopting the majority view on this issue, the pending amendment adds an explicit requirement that the motion must be filed within the time period specified by the rule under which it is made in order to have a tolling effect for the purpose of determining the deadline for filing a notice of appeal. A corresponding amendment has been proposed to Bankruptcy Rule 8002(b).
New Bankruptcy Rule 8018.1 (district court review of a judgment that the bankruptcy court lacked constitutional authority to enter). The proposed rule would authorize a district court to treat a bankruptcy court’s judgment as proposed findings of fact and conclusions of law if the district court determines that the bankruptcy court lacked constitutional authority to enter a final judgment. This procedure is consistent with the Supreme Court’s decision in Executive Benefits Insurance Agency v. Arkison, 134 S. Ct. 2165 (2014).
Bankruptcy Rule 8023 (voluntary dismissal; cross-reference regarding settlements). The rule would be amended by adding a cross-reference to Bankruptcy Rule 9019 (Compromise and Arbitration) to provide a reminder that when dismissal of an appeal is sought as the result of a settlement by the parties, Bankruptcy Rule 9019 may require approval of the settlement by the bankruptcy court.