Survey on the Federal Rules of

Bankruptcy Procedure

Elizabeth C. Wiggins,

Molly Treadway Johnson,

Gregory A. Mahin &

Robert J. Niemic

Federal Judicial Center



This Federal Judicial Center publication was undertaken in furtherance of

the Center’s statutory mission to conduct and stimulate research and

development for the improvement of judicial administration. The views

expressed are those of the authors and not necessarily those of the Federal

Judicial Center.
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iii

Contents

Acknowledgments v

Summary vii

Introduction and Methods 1

Survey Questions 1

Results 5

Organization of the Bankruptcy Rules and Forms 5

Matters the Bankruptcy Rules Should Not Address 6

Matters the Bankruptcy Rules Should Address 8

Inconsistencies Between the Bankruptcy Code and Rules 9

Ambiguous, Incomplete, and Vague Provisions in the Rules and

Forms 11

Problems Regarding Incorporated Civil Rules 12

Purpose, Scope, Format, and Organization of Local Bankruptcy

Rules 13

Long-Range Planning Subcommittee’s Recommendations 14

Action by the Bankruptcy Rules Committee 16

Appendix A: Responses to “Yes/No” Questions 17

Appendix B: Subject Categories of Survey Comments 35
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v

Acknowledgments

The survey on the Federal Rules of Bankruptcy Procedure was conducted

by the Federal Judicial Center on behalf of the Long-Range Planning

Subcommittee of the Judicial Conference’s Advisory Committee on

Bankruptcy Rules. Members of the Long-Range Planning Subcommittee

are Kenneth N. Klee, visiting professor at Harvard University Law School,

and Gerald K. Smith, of Lewis and Roca in Phoenix. The authors received

substantial assistance from the following Center staff members in distributing the questionnaire and processing and analyzing the responses:

George W. Cort, Julie J. Hong, Aletha D. Janifer, Yvette L. Jeter, Patricia

A. Lombard, Melissa J. Pecherski, Jeannette Summers, and Carol E.

Witcher.
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vii

Summary

The Long-Range Planning Subcommittee of the Judicial Conference’s

Advisory Committee on Bankruptcy Rules is undertaking a comprehensive review of the Federal Rules of Bankruptcy Procedure to determine

whether they should be modified. At the advisory committee’s request,

staff in the Research Division of the Federal Judicial Center developed a

questionnaire to help the subcommittee learn the views of various participants in the bankruptcy system concerning the rules and related forms.

The questionnaire contained questions about the organization,

scope, and format of the Federal Rules of Bankruptcy Procedure and

forms; the relationship between the rules and the Bankruptcy Code; the

incorporation of various Federal Rules of Civil Procedure into the

Bankruptcy Rules; and local bankruptcy rules. The Center sent the questionnaire to bankruptcy, district, and circuit judges, other bankruptcy

court personnel, law professors, and bankruptcy practitioners.

Most of the respondents to the questionnaire indicated that they did

not see a need to change the rules and forms, had not experienced problems with the rules and forms, or had no opinion on the particular

changes being asked about. For each question, however, there were some

respondents (ranging from 9% to almost 32%) who reported problems

or indicated that they thought the rules should be changed in some way.

The questions with the highest percentage of affirmative responses concerned whether there are matters the Bankruptcy Rules and forms should

address but currently do not, and whether any of the Bankruptcy Rules or

forms should be clarified to eliminate ambiguity, incompleteness, or

vagueness. Many respondents provided specific comments about changes

that could be made to improve the rules and related forms (see the Results section and appendices for more detailed information about these

comments).

The Long-Range Planning Subcommittee reviewed an earlier version

of this report and the full set of survey comments. In an August 1995

conference call with Center staff, the subcommittee identified three areas

of potential change that warranted further study: issues related to litigation practice; issues related to attorney admissions and ethics; and inconsistencies between the hearing requirements in Bankruptcy Code provisions that use “after notice and a hearing” or a similar phrase, as defined

in 11 U.S.C. § 102, and those in the related Bankruptcy Rules.
viii

The subcommittee also identified other matters concerning specific

aspects of the federal rules and forms, largely unrelated to long-range

planning, that the advisory committee might want to consider further.

Examples of these matters are presented in the section titled Long-Range

Planning Subcommittee’s Recommendations.

The subcommittee also noted a number of suggestions respondents

made to bring the rules and forms into conformity with the Bankruptcy

Reform Act of 1994. Most of these suggestions had already been or were

being addressed by the advisory committee. In addition, the subcommittee referred survey comments concerning the forms to the committee’s

Subcommittee on Forms.

At its September 1995 meeting, the Advisory Committee on Bankruptcy Rules established two subcommittees. One subcommittee is examining issues related to attorney conflicts of interest. The other is examining rules related to litigation in bankruptcy, and its focus is on motions

practice.
Survey on the Federal Rules of Bankruptcy Procedure 1

Introduction and Methods

The Long-Range Planning Subcommittee of the Judicial Conference’s

Advisory Committee on Bankruptcy Rules is undertaking a comprehensive review of the Federal Rules of Bankruptcy Procedure and related

forms to determine whether they should be modified. At the advisory

committee’s request, staff in the Research Division of the Federal Judicial

Center conducted a survey to help the subcommittee learn the views of

various participants in the bankruptcy system concerning the rules and

related forms. The Center sent a questionnaire to bankruptcy, district,

and circuit judges, other bankruptcy court personnel, law professors, and

bankruptcy practitioners (see Table 1 and related text for more information about the sample and response rates).

The questionnaire contained six questions about the Federal Rules of

Bankruptcy Procedure and forms and one question about local bankruptcy rules. We also asked bankruptcy practitioners and law professors

about the nature and extent of their bankruptcy-related work. For each

question about the federal rules, we asked for a “yes,” “no,” or “no

opinion” response and for an explanation of any “yes” response. The

seven questions we asked all groups surveyed follow.

Survey Questions

1. Should the current organization of the Federal Rules of Bankruptcy Procedure and related forms be revised? [Response options to this question as well

as Questions 2–6 were “yes,” “no,” or “no opinion.”]

If YES, please describe the problem(s) with the current organization of the

rules and related forms and how the organization might be improved.

2. Do the Federal Rules of Bankruptcy Procedure and related forms cover matters that would be better left to the discretion of individual judges or districts?

If YES, please list below each rule or form and briefly describe the subject

matter that you think ought to be left to the discretion of individual judges or

districts and why.

3. Are there any matters that should be addressed by the Federal Rules of

Bankruptcy Procedure and related forms but currently are not?

If YES, please describe below each matter that you think ought to be addressed by the rules and related forms and where within the current organi-
2 Survey on the Federal Rules of Bankruptcy Procedure

zation (and any reorganization you proposed in Question 1) of the rules and

related forms it should be addressed.

4. Other than the inconsistencies created by the Bankruptcy Reform Act of

1994, are there any inconsistencies between the Bankruptcy Code and the

Federal Rules of Bankruptcy Procedure and related forms that you have

found problematic?

If YES, please list each code provision(s) and the inconsistent rule(s) or

form(s) and describe the nature of the inconsistency and how it might be

remedied.

5. Should any of the Federal Rules of Bankruptcy Procedure or related forms be

clarified to eliminate ambiguity, incompleteness, or vagueness?

If YES, please list each rule or form and describe the ambiguity, incompleteness, or vagueness and how the rule or form might be clarified.

6. The Federal Rules of Bankruptcy Procedure make various Federal Rules of

Civil Procedure, or modifications thereof, applicable to bankruptcy matters.

Have you found any of the incorporated rules to be problematic due to a

failure to take into account differences between bankruptcy and other civil

litigation?

If YES, please list the rule or rules and describe the nature of the problem and

how it might be remedied.

7. Please provide any comments you have about the purpose, scope, format, and

organization of local bankruptcy rules, including their relationship to the

Federal Rules of Bankruptcy Procedure and district court local rules. If your

comments are district-specific, please identify the district.

[Respondents were also asked to provide any other comments or proposals

they thought would assist the Advisory Committee on Bankruptcy Rules in its

review of the Federal Rules of Bankruptcy Procedure.]

Table 1 shows the number of people in each group who were sent the

questionnaire and the number who responded. The questionnaire was

mailed in January and February of 1995; a second copy of the questionnaire was mailed to the bankruptcy judges, clerks of the bankruptcy

courts, and bankruptcy administrators in April and to bankruptcy practitioners in the U.S. attorneys’ offices in May. Those who had already responded were given an opportunity to supplement their earlier responses,

and those who had not responded were invited to do so.
Survey on the Federal Rules of Bankruptcy Procedure 3

Table 1

Recipients of and respondents to the questionnaire

Number of

Recipients

Number of

Responses

Response

Rate

Bankruptcy judges 334 159 48%

Chief district judges (93) and sample of

other district judges (151) 244 106 43%

 Chief circuit judges (13) and sample of

other circuit judges (75) 88 30 34%

Clerks of bankruptcy courts (including

the Clerk of the Ninth Circuit

Bankruptcy Appellate Panel) 96 47 49%

Bankruptcy administrators 6 2 33%

Chapter 13 trustees (the membership

list of the National Association of

Chapter 13 Trustees) 182 47 26%

Chapter 7 trustees (sampled from the

membership list of the National Association of Bankruptcy Trustees) 300 68 23%

Bankruptcy practitioners in the U.S.

attorneys’ offices, the Commercial

Litigation Branch of the Civil Division of DOJ, the Environmental and

Natural Resources Division of DOJ,

and the Tax Division of DOJ 344 64 19%

Law schoolsa 178 21 12%

Bankruptcy practitionersa 1,373 176 13%

Total 3,145 720 23%

Note: DOJ = Department of Justice.

a. The Center sent copies of the questionnaire to the deans of the 178 law schools listed in the

Association of American Law Schools Directory of Law Teachers with the request that they be forwarded

to the appropriate part- and full-time members of the faculty; no more than one questionnaire was

returned from any law school. The sample of bankruptcy practitioners was drawn from the membership lists of the following organizations: ABA Family Law Section, Bankruptcy Committee; ABA

Business Law Section, Business Bankruptcy Committee; ABA Litigation Section, Bankruptcy/

Insolvency Committee; ABA General Practice Section, Bankruptcy Committee; ABA Law Practice

Management Section, Bankruptcy Interest Group; American Bankruptcy Institute, Rules Committee;

National Bankruptcy Conference; and the National Association of Consumer Bankruptcy Attorneys.

We attempted to avoid sending duplicate questionnaires to persons belonging to more than one of

these organizations. The questionnaire also was distributed at the March meeting of the Rules

Subcommittee of the ABA Business Bankruptcy Committee; many who attended this meeting had

received the questionnaire in another capacity.
4 Survey on the Federal Rules of Bankruptcy Procedure

The questionnaire was also sent to the heads of the following

bankruptcy-related organizations, with the invitation to submit a consolidated response.

• American Bankruptcy Institute, Rules Committee

• American Bar Association (ABA), Family Law Section, Bankruptcy Committee

• ABA Business Law Section, Business Bankruptcy Committee

• ABA Litigation Section, Bankruptcy/Insolvency Committee

• ABA General Practice Section, Bankruptcy Committee

• ABA Law Practice Management Section, Bankruptcy Interest

Group

• Association of Insolvency Accountants

• Commercial Law League of America

• National Association of Bankruptcy Trustees

• National Association of Chapter 13 Trustees

• National Association of Consumer Bankruptcy Attorneys

• National Bankruptcy Conference

• National Conference of Bankruptcy Clerks

• National Conference of Bankruptcy Judges

• Turnaround Management Association

Responses were received only from the Commercial Law League of

America and the ABA Business Law Section, Rules Subcommittee of the

Business Bankruptcy Committee (although the subcommittee chair did

not respond on behalf of the subcommittee, two individual members responded to the questionnaire at the subcommittee chair’s request that

members do so; other members may have responded during the normal

course of the survey). Two other organizations, upon hearing of the survey, also submitted responses: the Bankruptcy Clerks’ Advisory Group of

the Administrative Office of the U.S. Courts and the National Association

of Attorneys General. In addition, the Executive Office for United States

Trustees distributed the questionnaire within the Executive Office and to

its regional offices and submitted a consolidated report.

Finally, the questionnaire was reprinted in Bankruptcy Court

Decisions in March 1995, with an invitation for interested readers to respond by May 15, 1995. Only four people responded directly to the published questionnaire; these respondents are included in the group of
Survey on the Federal Rules of Bankruptcy Procedure 5

“bankruptcy practitioners” referred to in the text of the Results section

and the tables in Appendix A of this report.

Results

In this section we present the responses to the “yes/no” questions for all

respondents combined and for bankruptcy judges, clerks of the bankruptcy courts, and bankruptcy practitioners separately. More detailed

information about the responses of different groups is provided in Appendix A. We also briefly summarize the respondents’ explanatory comments. The categories into which we sorted the comments to each question are set out in Appendix B. The full text of the comments (excluding

information that could be used to identify respondents) was given to the

Long-Range Planning Subcommittee and is available from the Federal

Judicial Center on request.

Because the survey was exploratory and asked primarily about perceived problems with the rules and forms, it is possible that those who

think the rules are problematic responded at a higher rate than those who

find the rules satisfactory. Thus, the percentages of “yes” responses shown

below may overstate the number of persons who think the rules are

problematic.

Organization of the Bankruptcy Rules and Forms

As Table 2 shows, a relatively small percentage (16.2) of the respondents

thought the current organization of the federal rules and related forms

should be revised. The percentages of affirmative responses for

bankruptcy judges, bankruptcy clerks of court, and bankruptcy practitioners were 17.0%, 25.5%, and 22.2%, respectively. Those who supported revision made a number of suggestions for improvement, some of

which are paraphrased below.

• Revise the rules concerning requests for relief (e.g., applications,

motions, contested matters, adversary proceedings) and consolidate them into a single part of the rules.

• Consolidate all notice and service requirements into a single section of the rules and cross-reference rules to which they apply.

• Reorganize the rules so that they better parallel the Bankruptcy

Code.
6 Survey on the Federal Rules of Bankruptcy Procedure

• Renumber the rules to correspond to the appropriate Bankruptcy

Code sections.

• Include an official table cross-referencing the rules and the

Bankruptcy Code.

• Revise the index to the rules to make it more thorough and subject-specific.

• Add subheadings to the table of contents (e.g., in Part III, subheadings could include Rules of General Applicability, Chapter 7

Rules, Chapter 11 Rules, and Chapter 13 Rules).

• Reposition or renumber the forms to track the applicable rules.

• Format the forms so that they can be computer-generated more

easily.

Table 2

Responses to the question, Should the current organization of the

Federal Rules of Bankruptcy Procedure and related forms be revised?

Response Number Percentage

Yes 117 16.2

No 345 47.7

No opinion 243 33.6

Missing/unclear 19 2.6

Total 724

Matters the Bankruptcy Rules Should Not Address

Only 9% of the respondents reported that the rules cover matters that

would be better left to the individual judges or districts (see Table 3). The

percentages of “yes” responses for particular groups were as follows:

bankruptcy judges: 15.1%; clerks of bankruptcy courts: 14.9%; and

bankruptcy practitioners: 7.2%. Some of the respondents’ suggestions are

summarized below.

• There should be judicial discretion to modify the time frames for

filing objections to discharge, dischargeability complaints, and

objections to claims of exemptions.

• Application of the discovery rules should be left to the discretion

of the court or amended altogether.
Survey on the Federal Rules of Bankruptcy Procedure 7

• The procedures for giving notice of dismissal or conversion are

too cumbersome when a case is filed without payment of fees or

without the required list of creditors, statements, and schedules.

The court should be able to establish streamlined procedures.

• The interpretation of Rule 5005(a) prohibiting the clerk from refusing any paper offered for filing places an unreasonable burden

on the court and the clerk’s office. The courts should be allowed to

adopt local procedures to efficiently and cost-effectively deal with

filings that do not comply with the Bankruptcy Rules or Bankruptcy Code or that are unnecessary (e.g., discovery materials).

• Courts should have discretion regarding the nunc pro tunc approval of the employment of professionals.

• Local procedures may be needed to govern motions practice and

adversary proceedings. For example, some districts have developed efficient local procedures for handling certain types of motions (motions for relief from the automatic stay, motions to

dismiss, motions to modify the chapter 13 plan, motions for the

turnover of a vehicle).

• Notice requirements in the rules should serve as guidelines that

the court may tailor to the needs of the case; alternatively, some of

the notice requirements in the rules should be modified.

• Procedures to allow the bankruptcy court to comment on motions

for withdrawal of the reference should be adopted by district

courts; alternatively, they should be incorporated into the federal

rules.

Table 3

Responses to the question, Do the Federal Rules of Bankruptcy

Procedure and related forms cover matters that would be better left to

the discretion of individual judges or districts?

Response Number Percentage

Yes 65 9.0

No 419 57.9

No opinion 216 29.8

Missing/unclear 24 3.3

Total 724
8 Survey on the Federal Rules of Bankruptcy Procedure

Matters the Bankruptcy Rules Should Address

As Table 4 shows, a substantial number of respondents reported that

there were matters that should be addressed by the rules but currently are

not. The percentages of “yes” responses were as follows: all respondents:

31.8%; bankruptcy judges: 44.7%; clerks of bankruptcy courts: 42.6%;

and bankruptcy practitioners: 40.6%.

Table 4

Responses to the question, Are there any matters that should be

addressed by the Federal Rules of Bankruptcy Procedure and related

forms but currently are not?

Response Number Percentage

Yes 230 31.8

No 180 24.9

No opinion 289 39.9

Missing/unclear 25 3.5

Total 724

We sorted the comments to Question 3 into the categories shown in

Appendix B. The comments covered many subject areas; some illustrative

suggestions for additions to the rules are as follows:

• a set of rules addressing attorney admission, appearance pro hac

vice, appearance and withdrawal, and discipline;

• specific rules for chapter 9 cases instead of referencing chapter 11

provisions;

• a more comprehensive set of rules for chapter 13;

• detailed procedures concerning withdrawal of the reference, comparable to those for appeal;

• more specific procedures for requesting administrative expenses;

• new or more specific provisions relating to claims (trading in

claims; need to file proofs of claims; deadlines for filing proofs of

claims; treatment of late filed claims; service of proofs of claims;

objections to claims);

• expansion of provisions relating to exemptions and objections

thereto;
Survey on the Federal Rules of Bankruptcy Procedure 9

• a rule regarding the impact of the dismissal of a case on pending

adversary proceedings;

• a rule concerning nunc pro tunc allowance of applications for the

employment of professionals; and

• various new provisions concerning adversary proceedings and

motions practice (use of affidavits at hearings; presumptive response time for motions set forth in Part VII and Rules 9013 and

9014).

In addition, a number of respondents suggested adding specific forms

and suggested additions to the rules so that they would conform to the

Bankruptcy Reform Act of 1994.

Inconsistencies Between the Bankruptcy Code and Rules

Approximately 14% of the respondents reported that there were inconsistencies between the Bankruptcy Code and the Federal Rules of

Bankruptcy Procedure (see Table 5). The percentages of “yes” responses

for bankruptcy judges, bankruptcy clerks of court, and bankruptcy practitioners were 22.0%, 23.4%, and 15.0%, respectively. See Appendix B for

a list of the categories into which we sorted the comments to this question. The noted inconsistencies include the following:

• 11 U.S.C. §§ 501, 502, and 726 and Rule 3002: The statutes and

rules are not consistent with respect to the deadline for filing

claims and the treatment of late filed claims.

• 11 U.S.C. §§ 501 and 502 and Rule 3021: It is unclear whether a

proof of claim must be filed to receive a distribution.

• 11 U.S.C. § 502 and Rule 3007: Rule 3007 mentions the “hearing,”

whereas section 502 seems to indicate that an objection to a claim

can be handled on notice and opportunity for a hearing, as

defined by 11 U.S.C. § 102(1).

• 11 U.S.C. § 727(a)(10) and Rule 4004(c): The Code requires a

judge’s approval before a discharge can be waived; the rule suggests that the filing of a waiver is sufficient.

• 11 U.S.C. §§ 102(1) and 1125(b) and Rule 3017(a), (b), and (e):

The Code does not require a hearing on the disclosure statement,

but the rule assumes one is required.

• 11 U.S.C. §§ 1307(b) and 1208(b) and Rule 1017(d): These statutory provisions use language that gives the debtor the ability to
10 Survey on the Federal Rules of Bankruptcy Procedure

dismiss a case as a matter of right; the rule requires that the debtor

file an appropriate motion.

• 11 U.S.C. § 329 and Rule 2017: Section 329(a) limits the examination of attorney payments to those made after one year before the

filing of the petition, but the examination under the rule is not

limited to one year.

• 11 U.S.C. § 363 and Rule 7001: These provisions create confusion

as to whether the sale of property should be treated as a contested

matter or an adversary proceeding.

• 11 U.S.C. § 1121(c) and Rule 3016(a): Rule 3016(a) provides: “A

party in interest, other than the debtor, who is authorized to file a

plan under § 1121(c) of the Code may not file a plan after entry of

an order approving a disclosure statement unless confirmation of

the plan relating to the disclosure statement has been denied or

the court otherwise directs.” However, section 1121(c) provides

no limitation on the right of a party in interest other than the

debtor to file a plan after the expiration of the debtor’s 120-day

exclusivity period. The rule thus appears to place a restriction on

the filing of a plan where Congress intended no such restriction.

• 11 U.S.C. § 1121(d) and Rule 3016(a): Section 1121(d) provides

that the debtor’s exclusivity period may be extended for cause, yet

the rule de facto extends the exclusivity period if the debtor has

obtained approval of a disclosure statement.

• 11 U.S.C. §§ 502 and 1126 and Rule 3018: Section 502 provides

that a claim is deemed allowed unless a party in interest objects,

and section 1126 limits the right to vote on a plan to holders of

allowed claims. Because Rule 3018 permits the court to temporarily allow a claim for voting purposes, it can be read as enlarging

rights granted under the Code.

• 11 U.S.C. § 524 and Rule 4008: These provisions contain inconsistencies and ambiguities regarding reaffirmation agreements.
Survey on the Federal Rules of Bankruptcy Procedure 11

Table 5

Responses to the question, Other than the inconsistencies created by the

Bankruptcy Reform Act of 1994, are there any inconsistencies between

the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure

and related forms that you have found problematic?

Response Number Percentage

Yes 99 13.7

No 350 48.3

No opinion 245 33.8

Missing/unclear 30 4.1

Total 724

Ambiguous, Incomplete, and Vague Provisions in the

Rules and Forms

As Table 6 shows, a substantial number of respondents (28%) thought

some aspect of the rules or related forms could be clarified to eliminate

ambiguity, incompleteness, or vagueness. The percentages of affirmative

responses for each group were as follows: bankruptcy judges, 42.1%;

clerks of bankruptcy courts, 57.4%; and bankruptcy practitioners, 29.4%.

Not surprisingly, many of the comments in response to this question

overlapped with those given in response to other survey questions, particularly Question 3, and were very specific. The most pervasive problems

identified were those relating to appeals, claims, exemptions, notice and

service, motions practice, and adversary proceedings, and to specific

forms. Appendix B presents other subject areas identified as problematic.

Table 6

Responses to the question, Should any of the Federal Rules of

Bankruptcy Procedure or related forms be clarified to eliminate

ambiguity, incompleteness, or vagueness?

Response Number Percentage

Yes 203 28.0

No 157 21.7

No opinion 328 45.3

Missing/unclear 36 5.0

Total 724
12 Survey on the Federal Rules of Bankruptcy Procedure

Problems Regarding Incorporated Civil Rules

Approximately 19% of all respondents found at least some of the incorporated Civil Rules to be problematic (see Table 7). The percentages of

affirmative responses for bankruptcy judges, bankruptcy clerks of court,

and other bankruptcy practitioners were somewhat higher: 28.9%,

23.4%, and 22.8%, respectively. Some of the areas respondents found

problematic are described below.

• The discovery rules, even with the opt-out provisions, do not

work well in some (or most) contested matters and adversary proceedings because of the time sensitivity of bankruptcy matters.

This is true also of the pretrial procedures set forth in Civil Rule 16

and incorporated by Bankruptcy Rule 7016.

• Civil Rules 59 and 60 (incorporated with modifications by Bankruptcy Rules 9023 and 9024) do not translate well to bankruptcy

motions practice. These rules refer to a motion for a new trial and

a motion to alter or amend a judgment, but in bankruptcy motions practice, the request is more like a motion for reconsideration of an order.

• Bankruptcy Rule 7054 should state the particular types of orders

peculiar to bankruptcy that are final for appeal purposes.

• Civil Rule 5(e) (incorporated by Bankruptcy Rule 7005) concerning the acceptance of papers for filing is problematic in bankruptcy matters.

• Bankruptcy Rule 9021 (incorporating Civil Rule 58 with modifications) is problematic for two reasons. First, the last sentence in

Rule 58 says “attorneys shall not submit forms of judgment except

upon direction of the court, and these directions shall not be given

as a matter of course.” Because the bankruptcy courts enter so

many routine orders, this part of Rule 58 is excessively burdensome. Second, some court decisions have led to the necessity of

preparing a separate form of judgment in every contested matter.

However, the Advisory Committee Note to Bankruptcy Rule 9021

suggests that a separate judgment is not always required.

• The Civil Rules concerning juries should be incorporated into the

Bankruptcy Rules.
Survey on the Federal Rules of Bankruptcy Procedure 13

• Various suggestions for improving the service requirements in adversary proceedings and contested matters were identified. For example, the applicability of Bankruptcy Rule 7005 to contested

matters should be automatic, rather than left to the discretion of

the court, so that a party’s attorney will always be served.

• The computation of time under Bankruptcy Rule 9006 and Civil

Rule 6 should be consistent.

Table 7

Responses to the question, The Federal Rules of Bankruptcy Procedure

make various Federal Rules of Civil Procedure, or modifications thereof,

applicable to bankruptcy matters. Have you found any of the

incorporated rules to be problematic due to a failure to take into

account differences between bankruptcy and other civil litigation?

Response Number Percentage

Yes 137 18.9

No 361 49.9

No opinion 192 26.5

Missing/unclear 34 4.7

Total 724

Purpose, Scope, Format, and Organization of Local

Bankruptcy Rules

We also asked survey recipients to provide comments about the purpose,

scope, format, and organization of local bankruptcy rules. A number of

the comments focus on the uniform renumbering of the local rules; these

comments have been passed on to members of the Advisory Committee

on Bankruptcy Rules working on this project.

A number of other comments address, with reference to particular

districts, the effectiveness, scope, and specificity of local rules. A few of

these comments propose remedies to problems identified in responses to

other survey questions (e.g., a local rule specifying that the chapter 13

trustees maintain the claims register and original proofs of claim; a local

rule providing that, as soon as a motion for relief from the stay is filed,

involved parties receive notice advising them that they have a given pe-
14 Survey on the Federal Rules of Bankruptcy Procedure

riod of time to file a response, and that if no response is filed, the judge

will enter an order granting the relief unless a problem is uncovered sua

sponte).

Long-Range Planning Subcommittee’s

Recommendations

The Long-Range Planning Subcommittee reviewed this report and the

full set of survey comments. In an August 1995 conference call with Federal Judicial Center staff, the subcommittee identified the following three

areas for possible further study.

• Issues related to litigation practice. The overarching question is

whether the Bankruptcy Rules related to the various types of requests for relief in bankruptcy (applications, motions, contested

matters, adversary proceedings) should be consolidated. A related

question concerns the extent to which the Bankruptcy Rules

should parallel the Civil Rules. More specific topics for study include rules of pleading, notice and service, responses to pleadings,

discovery, taking of testimony, entry of orders and judgment,

post-judgment motions, and appeals.

• Issues related to attorney admissions and ethics. This inquiry would

address a number of interrelated issues concerning the admission

of attorneys to practice in bankruptcy courts (e.g., the desirability

of a national bankruptcy bar, admissions pro hac vice, local counsel rules), the employment and compensation of attorneys (e.g., issues relating to nunc pro tunc approval of employment), and attorney conduct and ethics (e.g., qualification and disqualification;

conflicts of interest; contempt, sanctions, and other penalties for

misconduct; and the desirability of a code of conduct for attorneys

specific to bankruptcy).

• Inconsistencies in the hearing requirements. Inconsistencies between

the hearing requirements of Code provisions that use “after notice

and a hearing” or a similar phrase, as defined in 11 U.S.C. § 102,

and the hearing requirements in related Bankruptcy Rules would

be studied.

The subcommittee also identified other matters, largely unrelated to

long-range planning, that the Advisory Committee on Bankruptcy Rules

might want to consider further. The most prominent are as follows:
Survey on the Federal Rules of Bankruptcy Procedure 15

• various issues relating to claims and distribution (claims for administrative expenses; trading in claims; the need to file proofs of

claims; deadlines for filing proofs of claims; treatment of late filed

claims; service of proofs of claims; objections to claims; whether a

claim must be filed to receive a distribution);

• time frames for filing objections to discharge and dischargeability

complaints, and related issues;

• various provisions relating to exemptions and objections thereto;

• the addition of detailed procedures concerning withdrawal of the

reference, comparable to those for appeal; a provision to allow the

bankruptcy court to comment on motions for withdrawal of the

reference;

• specific rules for chapter 9 cases instead of referencing chapter 11

provisions; a more comprehensive and tailored set of rules for

chapter 12 and 13 cases; additional rules for cases ancillary to foreign proceedings; more generally, whether there should be separate rules for different chapters of the Code;

• provisions related to the joint administration, substantive consolidation, and separation of cases;

• inconsistencies and ambiguities in the removal and remand procedures (28 U.S.C. § 1452 and Rule 9027(a); Rule 9027(d) and

Rules 7001 and 9014);

• various provisions relating to the filing of papers and the payment

of filing fees (e.g., complications arising when a debtor defaults on

installment payments after plan confirmation; payment of filing

fees on the reopening of a case; inconsistency between the requirements in Rules 9011 and 1006 and those in Rule 5005(a));

• various provisions related to the sale of property;

• provisions relating to the dismissal and transfer of cases filed in an

improper venue; and

• closing of chapter 11 cases.

In addition, the reader is referred to the comments in the section “Inconsistencies Between the Bankruptcy Code and Rules.”

The subcommittee also noted a number of suggestions respondents

made to bring the rules and forms into conformity with the Bankruptcy

Reform Act of 1994. Most of these suggestions had already been or were

being addressed by the advisory committee. In addition, the subcommit-
16 Survey on the Federal Rules of Bankruptcy Procedure

tee referred survey comments concerning forms to the committee’s

Subcommittee on Forms. Although suggestions for rules changes are included in some of these comments, many relate to the clarity and organization of the forms, and their consistency with related Code and rule

provisions.

Action by the Bankruptcy Rules Committee

At its September 1995 meeting, the Advisory Committee on Bankruptcy

Rules established two subcommittees. One subcommittee, chaired by

Gerald K. Smith, is examining issues related to attorney conflicts of interest. The other subcommittee, chaired by Kenneth N. Klee, is examining

rules related to litigation in bankruptcy; its focus is on motions practice.
Survey on the Federal Rules of Bankruptcy Procedure 17

Appendix A

Responses to “Yes/No” Questions

Question 1: Should the current organization of the Federal Rules

of Bankruptcy Procedure and related forms be revised?

Bankruptcy Judges (Including Chiefs)

Response Number Percentage

Yes 27 17.0

No 100 62.9

No opinion 29 18.2

Missing/unclear 3 1.9

Total 159

District Judges (Including Chiefs)

Response Number Percentage

Yes 3 2.8

No 27 25.5

No opinion 73 68.9

Missing/unclear 3 2.8

Total 106

Circuit Judges (Including Chiefs)

Response Number Percentage

Yes 2 6.7

No 5 16.7

No opinion 22 73.3

Missing/unclear 1 3.3

Total 30
18 Survey on the Federal Rules of Bankruptcy Procedure

Question 1 (continued)

Clerks of the Bankruptcy Courts

Response Number Percentage

Yes 12 25.5

No 28 59.6

No opinion 7 14.9

Missing/unclear 0 0.0

Total 47

Bankruptcy Administrators

Response Number Percentage

No 1 50.0

No opinion 1 50.0

Total 2

Chapter 13 Trustees

Response Number Percentage

Yes 7 14.9

No 28 59.6

No opinion 12 25.5

Missing/unclear 0 0.0

Total 47

U.S. Attorneys

Response Number Percentage

Yes 9 14.1

No 25 39.1

No opinion 29 45.3

Missing/unclear 1 1.6

Total 64
Survey on the Federal Rules of Bankruptcy Procedure 19

Question 1 (continued)

Chapter 7 Trustees

Response Number Percentage

Yes 12 17.6

No 32 47.1

No opinion 21 30.9

Missing/unclear 3 4.4

Total 68

Bankruptcy Practitioners

Response Number Percentage

Yes 40 22.2

No 91 50.6

No opinion 41 22.8

Missing/unclear 8 4.4

Total 180

Law Schools

Response Number Percentage

Yes 5 23.8

No 8 38.1

No opinion 8 38.1

Missing/unclear 0 0.0

Total 21
20 Survey on the Federal Rules of Bankruptcy Procedure

Question 2: Do the Federal Rules of Bankruptcy Procedure and

related forms cover matters that would be better left to the

discretion of individual judges or districts?

Bankruptcy Judges (Including Chiefs)

Response Number Percentage

Yes 24 15.1

No 107 67.3

No opinion 25 15.7

Missing/unclear 3 1.9

Total 159

District Judges (Including Chiefs)

Response Number Percentage

Yes 7 6.6

No 25 23.6

No opinion 71 67.0

Missing/unclear 3 2.8

Total 106

Circuit Judges (Including Chiefs)

Response Number Percentage

Yes 1 3.3

No 8 26.7

No opinion 20 66.7

Missing/unclear 1 3.3

Total 30
Survey on the Federal Rules of Bankruptcy Procedure 21

Question 2 (continued)

Clerks of the Bankruptcy Courts

Response Number Percentage

Yes 7 14.9

No 30 63.8

No opinion 10 21.3

Missing/unclear 0 0.0

Total 47

Bankruptcy Administrators

Response Number Percentage

No 2 100.0

Total 2

Chapter 13 Trustees

Response Number Percentage

Yes 6 12.8

No 28 59.6

No opinion 12 25.5

Missing/unclear 1 2.1

Total 47

U.S. Attorneys

Response Number Percentage

Yes 1 1.6

No 42 65.6

No opinion 21 32.8

Missing/unclear 0 0.0

Total 64
22 Survey on the Federal Rules of Bankruptcy Procedure

Question 2 (continued)

Chapter 7 Trustees

Response Number Percentage

Yes 4 5.9

No 39 57.4

No opinion 19 27.9

Missing/unclear 6 8.8

Total 68

Other Bankruptcy Practitioners

Response Number Percentage

Yes 13 7.2

No 125 69.4

No opinion 32 17.8

Missing/unclear 10 5.6

Total 180

Law Schools

Response Number Percentage

Yes 2 9.5

No 13 61.9

No opinion 6 28.6

Missing/unclear 0 0.0

Total 21
Survey on the Federal Rules of Bankruptcy Procedure 23

Question 3: Are there any matters that should be addressed by the

Federal Rules of Bankruptcy Procedure and related forms but

currently are not?

Bankruptcy Judges (Including Chiefs)

Response Number Percentage

Yes 71 44.7

No 47 29.6

No opinion 37 23.3

Missing/unclear 4 2.5

Total 159

District Judges (Including Chiefs)

Response Number Percentage

Yes 16 15.1

No 9 8.5

No opinion 78 73.6

Missing/unclear 3 2.8

Total 106

Circuit Judges (Including Chiefs)

Response Number Percentage

Yes 2 6.7

No 1 3.3

No opinion 26 86.7

Missing/unclear 1 3.3

Total 30
24 Survey on the Federal Rules of Bankruptcy Procedure

Question 3 (continued)

Clerks of the Bankruptcy Courts

Response Number Percentage

Yes 20 42.6

No 12 25.5

No opinion 15 31.9

Missing/unclear 0 0.0

Total 47

Bankruptcy Administrators

Response Number Percentage

No 1 50.0

No opinion 1 50.0

Total 2

Chapter 13 Trustees

Response Number Percentage

Yes 14 29.8

No 15 31.9

No opinion 16 34.0

Missing/unclear 2 4.3

Total 47

U.S. Attorneys

Response Number Percentage

Yes 15 23.4

No 14 21.9

No opinion 34 53.1

Missing/unclear 1 1.6

Total 64
Survey on the Federal Rules of Bankruptcy Procedure 25

Question 3 (continued)

Chapter 7 Trustees

Response Number Percentage

Yes 13 19.1

No 27 39.7

No opinion 22 32.4

Missing/unclear 6 8.8

Total 68

Bankruptcy Practitioners

Response Number Percentage

Yes 73 40.6

No 50 27.8

No opinion 49 27.2

Missing/unclear 8 4.4

Total 180

Law Schools

Response Number Percentage

Yes 6 28.6

No 4 19.0

No opinion 11 52.4

Missing/unclear 0 0.0

Total 21
26 Survey on the Federal Rules of Bankruptcy Procedure

Question 4: Other than the inconsistencies created by the

Bankruptcy Reform Act of 1994, are there any inconsistencies

between the Bankruptcy Code and the Federal Rules of

Bankruptcy Procedure and related forms that you have found

problematic?

Bankruptcy Judges (Including Chiefs)

Response Number Percentage

Yes 35 22.0

No 88 55.3

No opinion 31 19.5

Missing/unclear 5 3.1

Total 159

District Judges (Including Chiefs)

Response Number Percentage

Yes 3 2.8

No 36 34.0

No opinion 65 61.3

Missing/unclear 2 1.9

Total 106

Circuit Judges (Including Chiefs)

Response Number Percentage

Yes 3 10.0

No 6 20.0

No opinion 20 66.7

Missing/unclear 1 3.3

Total 30
Survey on the Federal Rules of Bankruptcy Procedure 27

Question 4 (continued)

Clerks of the Bankruptcy Courts

Response Number Percentage

Yes 11 23.4

No 26 55.3

No opinion 10 21.3

Missing/unclear 0 0.0

Total 47

Bankruptcy Administrators

Response Number Percentage

No 1 50.0

No opinion 1 50.0

Total 2

Chapter 13 Trustees

Response Number Percentage

Yes 7 14.9

No 26 55.3

No opinion 13 27.7

Missing/unclear 1 2.1

Total 47

U.S. Attorneys

Response Number Percentage

Yes 7 10.9

No 33 51.6

No opinion 24 37.5

Missing/unclear 0 0.0

Total 64
28 Survey on the Federal Rules of Bankruptcy Procedure

Question 4 (continued)

Chapter 7 Trustees

Response Number Percentage

Yes 3 4.4

No 34 50.0

No opinion 25 36.8

Missing/unclear 6 8.8

Total 68

Bankruptcy Practitioners

Response Number Percentage

Yes 27 15.0

No 89 49.4

No opinion 50 27.8

Missing/unclear 14 7.8

Total 180

Law Schools

Response Number Percentage

Yes 3 14.3

No 11 52.4

No opinion 6 28.6

Missing/unclear 1 4.8

Total 21
Survey on the Federal Rules of Bankruptcy Procedure 29

Question 5: Should any of the Federal Rules of Bankruptcy

Procedure or related forms be clarified to eliminate ambiguity,

incompleteness, or vagueness?

Bankruptcy Judges (Including Chiefs)

Response Number Percentage

Yes 67 42.1

No 41 25.8

No opinion 48 30.2

Missing/unclear 3 1.9

Total 159

District Judges (Including Chiefs)

Response Number Percentage

Yes 12 11.3

No 12 11.3

No opinion 79 74.5

Missing/unclear 3 2.8

Total 106

Circuit Judges (Including Chiefs)

Response Number Percentage

Yes 2 6.7

No opinion 27 90.0

Missing/unclear 1 3.3

Total 30

Clerks of the Bankruptcy Courts

Response Number Percentage

Yes 27 57.4

No 5 10.6

No opinion 15 31.9

Missing/unclear 0 0.0

Total 47
30 Survey on the Federal Rules of Bankruptcy Procedure

Question 5 (continued)

Bankruptcy Administrators

Response Number Percentage

No 1 50.0

No opinion 1 50.0

Total 2

Chapter 13 Trustees

Response Number Percentage

Yes 11 23.4

No 14 29.8

No opinion 20 42.6

Missing/unclear 2 4.3

Total 47

U.S. Attorneys

Response Number Percentage

Yes 16 25.0

No 15 23.4

No opinion 31 48.4

Missing/unclear 2 3.1

Total 64

Chapter 7 Trustees

Response Number Percentage

Yes 10 14.7

No 22 32.4

No opinion 30 44.1

Missing/unclear 6 8.8

Total 68
Survey on the Federal Rules of Bankruptcy Procedure 31

Question 5 (continued)

Bankruptcy Practitioners

Response Number Percentage

Yes 53 29.4

No 43 23.9

No opinion 65 36.1

Missing/unclear 19 10.6

Total 180

Law Schools

Response Number Percentage

Yes 5 23.8

No 4 19.0

No opinion 12 57.1

Missing/unclear 0 0.0

Total 21
32 Survey on the Federal Rules of Bankruptcy Procedure

Question 6: The Federal Rules of Bankruptcy Procedure make

various Federal Rules of Civil Procedure, or modifications thereof,

applicable to bankruptcy matters. Have you found any of the

incorporated rules to be problematic due to a failure to take into

account differences between bankruptcy and other civil litigation?

Bankruptcy Judges (Including Chiefs)

Response Number Percentage

Yes 46 28.9

No 85 53.5

No opinion 26 16.4

Missing/unclear 2 1.3

Total 159

District Judges (Including Chiefs)

Response Number Percentage

Yes 10 9.4

No 38 35.8

No opinion 55 51.9

Missing/unclear 3 2.8

Total 106

Circuit Judges (Including Chiefs)

Response Number Percentage

Yes 5 16.7

No 5 16.7

No opinion 18 60.0

Missing/unclear 2 6.7

Total 30
Survey on the Federal Rules of Bankruptcy Procedure 33

Question 6 (continued)

Clerks of the Bankruptcy Courts

Response Number Percentage

Yes 11 23.4

No 26 55.3

No opinion 10 21.3

Missing/unclear 0 0.0

Total 47

Bankruptcy Administrators

Response Number Percentage

No 2 100.0

Total 2

Chapter 13 Trustees

Response Number Percentage

Yes 4 8.5

No 23 48.9

No opinion 15 31.9

Missing/unclear 5 10.6

Total 47

U.S. Attorneys

Response Number Percentage

Yes 9 14.1

No 36 56.3

No opinion 19 29.7

Missing/unclear 0 0.0

Total 64
34 Survey on the Federal Rules of Bankruptcy Procedure

Question 6 (continued)

Chapter 7 Trustees

Response Number Percentage

Yes 8 11.8

No 38 55.9

No opinion 16 23.5

Missing/unclear 6 8.8

Total 68

Bankruptcy Practitioners

Response Number Percentage

Yes 41 22.8

No 93 51.7

No opinion 30 16.7

Missing/unclear 16 8.9

Total 180

Law Schools

Response Number Percentage

Yes 3 14.3

No 15 71.4

No opinion 3 14.3

Missing/unclear 0 0.0

Total 21
Survey on the Federal Rules of Bankruptcy Procedure 35

Appendix B

Subject Categories of Survey Comments

Question 1: Should the current organization of the Federal Rules

of Bankruptcy Procedure and related forms be revised? If YES,

please describe the problem(s) with the current organization of the

rules and related forms and how the organization might be

improved.

General comments about the organization of the rules

Improved index, table of contents, cross-referencing, and titles of rules

Numbering of the rules to parallel the Bankruptcy Code

Organization, format, and referencing of forms

Organization of notice and service requirements

Organization of the rules concerning adversary proceedings, contested

matters, and appeals

Reorganization of the rules to parallel the Bankruptcy Code

Comments unrelated to the organization of the rules but given in response to Question 1

Claims

Forms

Local rules

Motions practice and adversary proceedings

Notice and service

Miscellaneous comments: Specific rule provisions

(objections to exemptions; bonding of debtor in possession;

abandonment and filing of a “no asset” final report; automatic

stay)

Miscellaneous comments: Policy issues

(discretion given to a bankruptcy court; the trustee system; appointment of bankruptcy judges; relitigation of divorce proceedings; ADR)
36 Survey on the Federal Rules of Bankruptcy Procedure

Question 2: Do the Federal Rules of Bankruptcy Procedure and

related forms cover matters that would be better left to the

discretion of individual judges or districts? If YES, please list below

each rule or form and briefly describe the subject matter that you

think ought to be left to the discretion of individual judges or

districts and why.

Automatic stay

Claims

Discharge/dischargeability

Discovery

Dismissal, conversion, and transfer of cases

Employment and compensation of professionals

Exemptions

Filing of papers and payment of filing fees

Forms

Judgments

Motions practice and adversary proceedings

Notice and service

Records

Time periods (generally)

Withdrawal of the reference

Miscellaneous comments (redemption; petition preparers; class actions;

9000 series of rules; notice of appearance)

General comments regarding judicial discretion and the scope of the

Bankruptcy Rules
Survey on the Federal Rules of Bankruptcy Procedure 37

Question 3: Are there any matters that should be addressed by the

Federal Rules of Bankruptcy Procedure and related forms but

currently are not? If YES, please describe below each matter you

think ought to be addressed by the rules and related forms and

where within the current organization (and any reorganization

you proposed in Question 1) of the rules and forms it should be

addressed.

Administrative expenses

Appeal and stay pending appeal

Attorney admissions and discipline/appearance and withdrawal/ representation of corporation by counsel

Automatic stay and relief from the automatic stay

Bankruptcy Reform Act

Chapter 9

Chapter 11

Chapter 13

Claims

Contempt

Deposit in court and disbursement of funds by court

Discharge/dischargeability

Discovery and Rule 2004 examinations

Dismissal and conversion of cases

Distribution

Employment and compensation of professionals

Ethics and penalties for misconduct

Exemptions

Filing of papers and payment of filing fees

Forms

Fraudulent transfers

Joint administration/substantive consolidation/separated cases

Judgments and orders

Jury trials

Local rules
38 Survey on the Federal Rules of Bankruptcy Procedure

Question 3 (continued)

Motions practice and adversary proceedings

Notice and service

Records

Report and accounting

Sales of property

Trustees

U.S. trustee

Valuation/reimbursement to secured creditors

Withdrawal of the reference

Miscellaneous comments (in forma pauperis; discretion of court to relax

rules; mandamus; burden of proof; bonding of debtor in possession;

international insolvencies; ADR; liens)

General comments regarding the desirability of uniformity of practice

across districts and according parity to rules that augment but do not

conflict with the Bankruptcy Code
Survey on the Federal Rules of Bankruptcy Procedure 39

Question 4: Other than the inconsistencies created by the

Bankruptcy Reform Act of 1994, are there any inconsistencies

between the Bankruptcy Code and the Federal Rules of

Bankruptcy Procedure and related forms that you have found

problematic? If YES, please list below each code provision(s) and

the inconsistent rule(s) or form(s) and describe the nature of the

inconsistency and how it might be remedied.

Administrative expenses

Appeal and stay pending appeal

Automatic stay and relief from the automatic stay

Bankruptcy Reform Act of 1994

Claims and distribution

Contempt

Discharge/dischargeability

Disclosure statements

Discovery

Dismissal, conversion, and transfer of cases

Duties of debtor

Employment and compensation of professionals

Exemptions

Filing of papers and payment of filing fees

Forms

Involuntary petitions

Meeting of creditors

Motions practice and adversary proceedings (including hearings, offer of

judgment, sanctions, motion to compromise)

Notice and service

Plans (chapters 11 and 13)

Reaffirmation agreements

Records

Removal

Reopening of case
40 Survey on the Federal Rules of Bankruptcy Procedure

Question 4 (continued)

Miscellaneous comments (case closing; collective bargaining; burden of

proof; rights of partnership trustee; cases ancillary to foreign

proceedings)

General comments regarding inconsistencies between the Bankruptcy

Code and Bankruptcy Rules
Survey on the Federal Rules of Bankruptcy Procedure 41

Question 5: Should any of the Federal Rules of Bankruptcy

Procedure or related forms be clarified to eliminate ambiguity,

incompleteness, or vagueness? If YES, please list below each rule or

form and describe the ambiguity, incompleteness, or vagueness,

and how the rule or form might be clarified.

Administrative expenses

Appeal and stay pending appeal

Attorney appearance

Bankruptcy Reform Act of 1994

Case closing

Claims

Contempt

Definitions

Discharge/dischargeability

Disclosure statement

Discovery and Rule 2004 examinations

Dismissal, conversion, transfer, and reopening of cases

Duties of debtor and trustee

Employment and compensation of professionals

Exemptions

Filing of papers (including amendments to petition and related papers)

and payment of filing fees

Forms

Judgments, proposed findings of fact and conclusions of law, and orders

Motions practice and adversary proceedings (subsumes some more specific related categories)

Notice and service

Plans (chapters 11 and 13)

Post-judgment motions

Reaffirmation agreements

Removal

Sanctions

Withdrawal of the reference
42 Survey on the Federal Rules of Bankruptcy Procedure

Question 5 (continued)

Miscellaneous comments (cases ancillary to foreign proceedings; chapter

9; joint administration and consolidation; abandonment or disposition of property; use, sale, and lease of property; involuntary petition;

U.S. trustee)

General comments (e.g., the benefit of clarifying versus the drawbacks of

changing the rules and the drawback of using commentary to explain

rules)
Survey on the Federal Rules of Bankruptcy Procedure 43

Question 6: The Federal Rules of Bankruptcy Procedure make

various Federal Rules of Civil Procedure, or modifications thereof,

applicable to bankruptcy matters. Have you found any of the

incorporated rules to be problematic due to a failure to take into

account differences between bankruptcy and other civil litigation?

If YES, please list below the rule or rules and describe the nature of

the problem and how it might be remedied.

Appeal and stay pending appeal

Class actions

Computation of time

Default judgments

Discovery and Rule 2004 examinations

Dismissal of proceedings

Filing of papers and payment of filing fees

Judgments and orders

Juries

Local rules

Offer of judgment

Post-judgment motions

Pretrial procedures

Response times (generally)

Rules of pleading

Sanctions

Service

Summary judgment

Taking of testimony

Withdrawal of the reference

Miscellaneous comments unrelated to Question 6

General comments (e.g., the benefits and disadvantages of incorporating

Civil Rules into the Bankruptcy Rules)
44 Survey on the Federal Rules of Bankruptcy Procedure

General Comments: Respondents were also asked to provide any

other comments or proposals they thought would assist the

Advisory Committee on Bankruptcy Rules in its review of the

Federal Rules of Bankruptcy Procedure.

ADR

Appeal and stay pending appeal

Bankruptcy Reform Act of 1994

Case closing

Chapter 13

Claims

Computation of time and time periods generally

Contempt

Deposit in court

Discharge/dischargeability

Disclosure statements

Discovery and Rule 2004 examinations

Dismissal and conversion of cases

Disqualification

Employment and compensation of professionals

Exemptions

Filing of papers (including amendments to petition and related papers)

and payment of filing fees

Forms

Index to rules

Joint administration

Judgments and orders

Jury trials

Local rules

Meeting of creditors

Motions practice and adversary proceedings

Notice and service

Plans (chapters 11 and 13)
Survey on the Federal Rules of Bankruptcy Procedure 45

General Comments (continued)

Protective orders

Records

Removal

Sales of assets

Sanctions

Special masters

Trustees

U.S. trustee

Verification of papers, oaths, affirmations, and related matters

General comments about the Bankruptcy Rules

General (broader policy issues)

General (information about respondents; nonsubstantive comments)