TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 206

Washington, D.C. 20005-4018

(202) 628-4888

contracts@hrccourtreporters.com

IN THE MATTER OF: )

 )

TESTIMONY OF WITNESSES )

BEFORE THE BANKRUPTCY )

RULES COMMITTEE )

Pages: 1 through 43

Place: Washington, D.C.
TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 206

Washington, D.C. 20005-4018

(202) 628-4888

contracts@hrccourtreporters.com

Date: September 27, 2016
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ADMINISTRATIVE OFFICE OF THE U.S. COURTS

IN THE MATTER OF: )

 )

TESTIMONY OF WITNESSES )

BEFORE THE BANKRUPTCY )

RULES COMMITTEE )

Suite 206

Heritage Reporting Corporation

1220 L Street, N.W.

Washington, D.C.

Tuesday, 

September 27, 2016

The parties met, pursuant to the notice, at 

11:09 a.m.

PARTICIPANTS: (Via Telephone)

JUDGE SANDRA SEGAL IKUTA, Chair 

PROFESSOR S. ELIZABETH GIBSON, Reporter 

 PROFESSOR MICHELLE M. HARNER, Assistant Reporter 

JUDGE STUART M. BERNSTEIN, Member

JUDGE DENNIS R. DOW, Member

MS. DIANA L. ERBSEN, Esq., Member

JUDGE A. BENJAMIN GOLDGAR, Member

MR. JEFFERY J. HARTLEY, Esq., Member

JUDGE MELVIN S. HOFFMAN, Member

MR. RICARDO I. KILPATRICK, Esq., Member

MS. JILL A. MICHAUX, Esq., Member

JUDGE PAMELA PEPPER, Member 

 MS. PATRICIA S. KETCHUM, Esq., Consultant

MR. JAMES H. WANNAMAKER, Esq., Consultant

 MR. JON WAAGE, Consultant 

JUDGE ERITHE A. SMITH, Liaison 

 MS. REBECCA A. WOMELDORF, Secretary, Rules

 Committee

JUDGE ARTHUR HARRIS 
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PROFESSOR EDWARD MORRISON 

Mr. ADAM HERRING, Executive Office of the

 U.S. Trustees

PARTICIPANTS: (Cont'd.)

JUDGE EUGENE WEDOFF, Former Member

MR. SCOTT MYERS, Attorney Advisor 

MR. SAM ANDRE, Law Clerk 

MR. ANDREW GEPPERT, Law Clerk 

MS. BRIDGET HEALY, Attorney Advisor

MS. JENNY L. DOLING, Esq., Witness 

JUDGE MARVIN ISGUR, Witness

MS. NORMA HAMMES, Esq., Witness

JUDGE ROGER L. EFREMSKY, Witness

MR. JAMES "IKE" SHULMAN, Esq., Witness
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I N D E X

WITNESS: PAGE

Jenny L. Doling, Esq, 12

Doling, Shaw & Hanover, APC

Hon. Roger L. Efremsky, 17

U.S. Bankruptcy Court for the Northern

District of California

Norma Hammes, Esq., Gold and Hammes 20

Hon. Marvin Isgur, 27

U.S. Bankruptcy Court for the Southern

District of Texas

James "Ike" Shulman, Esq., 33

Shulman Law Offices
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1 P R O C E E D I N G S

2 (11:09 a.m.)

3 JUDGE IKUTA: Welcome to this public hearing

4 on the proposed amendments to the Federal Rules 

5 Bankruptcy Procedure. I'm Sandra Ikuta, the Chair of 

6 the Advisory Committee on Bankruptcy Rules.

7 Today we're hearing five witnesses who have 

8 requested to testify regarding the proposed amendments 

9 to Bankruptcy Rule 3015 and new Rule 3015.1 which was 

10 published in July 2016.

11 We've also received a number of written 

12 comments on the amended rule and new rule. The 

13 comment period continues until October 3.

14 Each of the witnesses will have five minutes

15 to testify, and then there will be five minutes for 

16 questions by committee members. I've asked our Rules 

17 Support Office Staff to give a four-minute warning to 

18 the witnesses to help keep our hearing on schedule, 

19 and I'd appreciate the witnesses starting to wrap up 

20 when they get the warning. So this will give everyone 

21 the same opportunity to be heard.

22 The Committee has reviewed the written 

23 submissions by each of the witnesses, so the witnesses 

24 may focus on their key points.
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1 So, at this point, I would like to ask Scott

2 to call roll, starting with the committee members, 

3 liaisons, and reporters who are here today, and then 

4 the other attendees. And when your name is called, 

5 please state your affiliation.

6 Scott?

7 MR. MYERS: Sure. I'm going to go through 

8 the folks that I've got, that I was sort of keeping 

9 track of as we called in, and then at the end of the 

10 members I'll ask if anybody, if I missed anybody. And 

11 that's also going to include our liaisons for anybody 

12 who is on our list. And then I will call the 

13 witnesses and ask you to identify yourselves.

14 So Judge Ikuta?

15 JUDGE IKUTA: Yes, I'm Judge Ikuta, the 

16 Chair of the Bankruptcy Rules Committee.

17 MR. MYERS: Professor Gibson?

18 PROFESSOR GIBSON: Right. I'm Elizabeth 

19 Gibson. I'm the Reporter for the Bankruptcy Rules 

20 Committee.

21 MR. MYERS: Professor Harner?

22 PROFESSOR HARNER: Yes. I'm Michelle 

23 Harner. I am the Assistant Reporter for the Rules 

24 Committee.
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1 MR. MYERS: Judge Pepper?

2 JUDGE PEPPER: Yes. I'm Pam Pepper. I'm 

3 one of the members of the Bankruptcy Rules Committee.

4 MR. MYERS: Judge Bernstein?

5 JUDGE BERNSTEIN: Yes, this is Stuart 

6 Bernstein from the Southern District of New York. I'm 

7 a member of the Committee.

8 MR. MYERS: Judge Dow?

9 JUDGE DOW: Dennis Dow. I'm a Bankruptcy 

10 Judge in the Western District of Missouri. I'm the 

11 Chair of the Subcommittee on Forms.

12 MR. MYERS: Judge Goldgar?

13 JUDGE GOLDGAR: Ben Goldgar. I'm a 

14 Bankruptcy Judge in the Northern District of Illinois 

15 and a member of the Committee.

16 MR. MYERS: Judge Harris?

17 JUDGE HARRIS: Hi. Judge Arthur Harris from

18 Bankruptcy Court, Northern District of Ohio. I'm a 

19 member of the Committee for the next three days.

20 MR. MYERS: Judge Hoffman?

21 MR. HOFFMAN: Melvin Hoffman, Bankruptcy 

22 Court, District of Massachusetts. And I think I'm a 

23 member when Art is not a member.

24 MR. MYERS: Professor Morrison?
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1 PROFESSOR MORRISON: Hi. I teach at 

2 Columbia Law School and like Judge Harris, I am a 

3 member for the next three days, a member of the 

4 Committee.

5 MR. MYERS: Judge Wedoff?

6 (No response.)

7 MR. MYERS: Judge Wedoff?

8 (No response.)

9 MALE VOICE: You lost him. He doesn't 

10 recognize “judge” anymore.

11 MR. MYERS: That's probably it. Gene 

12 Wedoff?

13 (No response.)

14 MR. MYERS: Well, I'll move on. I'm sure 

15 we'll get him back.

16 Ricardo Kilpatrick?

17 MR. KILPATRICK: Ricardo Kilpatrick, a 

18 bankruptcy practitioner and member of the Committee.

19 MR. MYERS: Jeff Hartley?

20 MR. HARTLEY: I'm Jeffery Hartley. I'm a 

21 Committee member and an attorney in private practice.

22 MR. MYERS: Jill Michaux?

23 MS. MICHAUX: I'm Jill Michaux. I'm a 

24 member of the Committee from Kansas. I'm a bankruptcy 
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1 practitioner.

2 MR. MYERS: Diana Erbsen?

3 MS. ERBSEN: Hi. This is Diana Erbsen. I 

4 am a member of the Committee representing the 

5 Department of Justice. 

6 MR. MYERS: Adam Herring?

7 JUDGE HERRING: I'm Adam Herring with the 

8 Executive Office of U.S. Trustees.

9 MR. MYERS: Pat Ketchum?

10 MS. KETCHUM: Pat Ketchum. Consultant to 

11 the Committee, former Counsel to the Committee, and 

12 I'm back from a long sick leave and happy to be here.

13 MR. MYERS: Welcome back, Pat.

14 MS. KETCHUM: Thank you.

15 MR. MYERS: Jim Wannamaker?

16 MR. WANNAMAKER: Jim Wannamaker, Consultant 

17 to the Committee and former Staff Support.

18 MR. MYERS: Rebecca Womeldorf?

19 MS. WOMELDORF: Rebecca Womeldorf, Chief of 

20 the Rules Committee Support Office.

21 MR. MYERS: Bridget Healy?

22 MS. HEALY: I'm Bridget Healy and I'm an 

23 attorney in the Rules Support Office and I staff the 

24 Bankruptcy Committee.
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1 MR. MYERS: Jon Waage (phonetic)?

2 MR. WAAGE: Yeah. Jon Waage, a 13 trustee, 

3 a Plan Consultant.

4 MR. MYERS: Thanks, Jon. Is there anybody 

5 here who's a member or a liaison for the Committee 

6 that I have not called?

7 JUDGE WEDOFF: Scott, I mistakenly hit my 

8 mute button and that's why I was not able to talk to 

9 you earlier, but I am here. This is Eugene Wedoff, a 

10 former Bankruptcy Judge from the Northern District of 

11 Illinois and a Consultant to the Committee right now.

12 MR. MYERS: Thanks, Judge Wedoff.

13 JUDGE SMITH: This is Erithe Smith, 

14 Bankruptcy Judge from the Central District of 

15 California. I'm Liaison from the Bankruptcy 

16 Committee.

17 MR. MYERS: Hi, Judge Smith. Thank you.

18 Okay. I'm going to go through our witnesses

19 right now. Jenny Doling?

20 MS. DOLING: Good morning. I'm Jenny Doling

21 from the Central District of California. I'm the 

22 State Chair for NACBA for the Central District of 

23 California, and also I serve on the Bar Advisory 

24 Committee to our Central District of California 
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1 Judges. Thank you for having me.

2 MR. MYERS: Welcome.

3 Judge Efremsky?

4 JUDGE EFREMSKY: Yes. Judge Roger Efremsky,

5 Bankruptcy Judge, Northern District of California.

6 MR. MYERS: Norma Hammes?

7 MS. HAMMES: Yes. This is Norma Hammes, and

8 I'm a consumer bankruptcy attorney, debtor's attorney, 

9 from San Jose, California. Former President of NACBA 

10 and still on the Committee of NACBA that deals with 

11 the rules, including this one.

12 MR. MYERS: Welcome.

13 Judge Isgur, sir?

14 JUDGE ISGUR: Marvin Isgur, I-S-G-U-R. 

15 Bankruptcy Judge from the Southern District of Texas.

16 MR. MYERS: Welcome, Judge Isgur.

17 JUDGE ISGUR: Thank you.

18 MR. MYERS: James Ike Shulman?

19 MR. SHULMAN: Yes, good morning. This is 

20 Ike Shulman. I'm a dual practitioner in San Jose, 

21 California, and the first President of NACBA.

22 MR. MYERS: Welcome.

23 I understand we may have Judge Isgur's two 

24 law clerks on also. I'm going to call your names out. 
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1 Please call in. Is Sam Andre on?

2 MR. ANDRE: Yes.

3 MR. MYERS: Welcome, Sam.

4 Andrew Geppert?

5 MR. GEPPERT: Yes, Andrew Geppert here.

6 MR. MYERS: Good morning, Andrew.

7 MR. GEPPERT: Good morning.

8 MR. MYERS: Judge Ikuta, I think that I've 

9 gone through the roll.

10 JUDGE IKUTA: All right. If there's nobody 

11 else who hasn't been called?

12 (No response.)

13 JUDGE IKUTA: Okay. Thank you. 

14 We'll have a transcript prepared of the 

15 hearing so that the members of the Committee who 

16 weren't able to attend today will be able to read 

17 through all the testimony. And our court reporter is 

18 Stephen Grider. This transcript will be posted on the 

19 U.S. Courts Rules website, and I'd appreciate it if 

20 witnesses and Committee members asking questions would 

21 identify themselves by name before speaking to make it 

22 a little easier on our court reporter. 

23 So we have one change to the confirmed 

24 witness less. Judge Efremsky will be the second 
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1 witness, and Judge Isgur will be the fourth witness. 

2 I will call the witnesses in order and after

3 each witness finishes speaking, Judge Dow, who's the 

4 Chair of our Subcommittee on Forms, will be in charge 

5 of fielding the questions.

6 Our first witness today is Jenny Doling from

7 Doling, Shaw & Hanover. Ms. Doling?

8 MR. MYERS: Judge, I'm interrupting only 

9 because I just, I want to make one announcement that I 

10 always make when we have a large group of folks 

11 calling in. Please mute your phone when you're not 

12 speaking so that we can hear everybody who is speaking 

13 going forward. Thanks.

14 JUDGE IKUTA: Thank you, Scott.

15 All right, Ms. Doling, are you ready?

16 MS. DOLING: I am.

17 JUDGE IKUTA: Please proceed.

18 MS. DOLING: Thank you. Thank you for 

19 having me. Good morning. This is Jenny Doling.

20 As I set forth in my written submission of 

21 the testimony, I do have concerns about Rule 3015.1, 

22 the proposed change. One of the main concerns that I 

23 have is that I don't believe the rule sets out any 

24 type of remedy available to either debtors or 
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1 creditors if the local practice in the district does 

2 not conform to the changes proposed by the rule, and 

3 this is I think exceptionally important in the larger 

4 districts. In the Central District of California, we 

5 have five divisions with Chapter 13 trustees 

6 throughout those divisions, and much of the rules for 

7 the practice in our division were promulgated by the 

8 Chapter 13 trustees.

9 One of the main issues that we come across 

10 is that the Chapter 13 plan that's proposed in the 

11 Central District proposes an estimated percentage to 

12 be paid back in a Chapter 13 plan. The problem with 

13 that estimated percentage is that our order confirming 

14 the plan actually changes that percentage from an 

15 estimate to a fixed term of the plan, and that's not 

16 compliant with the U.S. Bankruptcy Code.

17 As we all know, the rules may not enlarge, 

18 abridge, or modify any substantive rights, and by 

19 having Rule 3015.1 out there requiring compliance with 

20 the code but no remedy other than appeal, it makes it 

21 very difficult for debtors or creditors to ever make 

22 changes when it comes time to adjust the standard plan 

23 that is set forth because much of the, like I said 

24 before, because much of the practice in the divisions 
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1 is really left up to the Chapter 13 trustees, without 

2 any input from debtors or creditors, and sometimes the 

3 court in this, a lot of things go on behind the 

4 background scenes that I don't think that the courts 

5 are aware of.

6 I would suggest that Rule 3015.1 also put 

7 forth not only a remedy but maybe a process for the 

8 trustees to include input from debtors' and creditors' 

9 counsel in how the rules and plan forms are carried 

10 out in practice.

11 We have a couple other issues that come up 

12 regularly in the Central District, and one of them is 

13 when we propose a non-standard provision in a plan, 

14 and in that case, our trustee in the Riverside 

15 Division asks to strike every single non-standard 

16 provision without regard to what that provision stands 

17 for, without regards to discussing it with the court, 

18 and it's kind of a strong-arm tactic, and I'd like to 

19 see that changed so that these issues are put before 

20 the judges more frequently.

21 My goal in testifying today, it's my first 

22 time testifying before one of the Rules Committees, is 

23 to hopefully put out the concerns of consumer debtors' 

24 attorneys as well as creditors who have raised these 
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1 issues. I have been asked to be on the Chapter 13 

2 Committee to address our plan in the Central District, 

3 so I am hoping to make some progress there. But I 

4 think something needs to be done at this level when 

5 we're promulgating a new rule change such as 

6 3015.1(c).

7 I'm happy to answer any questions if anyone 

8 has any questions.

9 JUDGE DOW: All right. Thank you. This is 

10 Judge Dow. Does anybody have any questions of the 

11 witness?

12 JUDGE BERNSTEIN: This is Judge Bernstein. 

13 I just have one question, and that is, what is the 

14 remedy that you would like to see?

15 MS. DOLING: Honestly, I think it's 

16 something that's going to need to be brainstormed a 

17 little more. I just want something that's a little 

18 less obtrusive and expensive, such as an appeal, 

19 because if everything has to be appealed we don't 

20 change things at this level. So, if there is a non21 compliant plan provision, maybe a type of a hearing 

22 that we can bring forth before our Chief Judge and 

23 address it there globally, not just on a case-by-case

24 basis.
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1 JUDGE PEPPER: This is Judge Pepper. I just

2 have a question. You indicated, Ms. Doling, that in 

3 your district, whenever a debtor proposes a non4 standard provision in the plan, the trustee strikes it 

5 and you would rather have that come before the judges 

6 more frequently. Is there not a mechanism whereby the 

7 debtor can politely decline the invitation to strike 

8 and get the issue in front of the Judge?

9 MS. DOLING: Yes, we can do that, but the 

10 problem is when I've done that and we've raised it up 

11 to the judges, they say this is really something that 

12 needs to be handled by the Chapter 13 Judges Committee 

13 or the Forms Committee and then we don't go any 

14 further. So it's not really, unless I appeal at that 

15 point, it's not really a remedy. It's not really a 

16 solution.

17 I've been putting in my plans for probably 

18 five years now that the Chapter 13 plan proposes an 

19 estimated percentage, but the order confirming plan 

20 changes that to a plan term, and then you have debtors 

21 who don't meet a certain percentage but who have paid 

22 in all of their disposable monthly income for the 

23 entire plan length, and then the trustee is filing 

24 motions to dismiss saying the plan is infeasible 
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1 because it's not going to reach this now fixed 

2 percentage. And that's not what the code requires. 

3 That's not what the code says. So it's the problem 

4 with our plan and our order confirming plan is taking 

5 away debtors' rights.

6 JUDGE DOW: All right. This is Judge Dow. 

7 I have a question. Maybe it's a two-part question. 

8 But it seems to me that what you're describing is with 

9 the present system, not the one that would be in 

10 existence after adoption of these rules, and what 

11 you're complaining about is decisions by judges on 

12 substantive issues of bankruptcy law, not procedures.

13 So my question to you I guess is, how is the

14 situation you described somehow made worse by the 

15 adoption of these rules, if it is? And how would 

16 adopting a national mandatory plan form, which you 

17 seem to support, solve the problem?

18 MS. DOLING: I actually do not support a 

19 national plan. At first I thought it would be a good 

20 idea. I believe that the rule change is not a bad 

21 rule change. I just think it needs some tweak to it, 

22 like I said, some kind of remedy where we can address 

23 globally in our districts problems with the plan form 

24 or problems with how the plan is being implemented or 
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1 approved or confirmed in our districts. And this rule 

2 leaves out any kind of request for a hearing to 

3 address those issues in our districts.

4 JUDGE DOW: Are there any other questions of

5 Ms. Doling?

6 (No response.)

7 JUDGE DOW: All right. If not, then I guess

8 we can move on to our next witness. Judge Ikuta?

9 JUDGE IKUTA: Yes. Our next witness is 

10 Judge Efremsky.

11 JUDGE EFREMSKY: All right. Good morning. 

12 This is Roger Efremsky, Chief Judge of the Bankruptcy 

13 Court in the Northern District of California.

14 Judge Ikuta, Judge Dow, and members of the 

15 Committee, Judge Isgur and I will testify in our 

16 individual capacities today. Judge Isgur and I thank 

17 you for this opportunity to testify regarding the

18 proposed bankruptcy rules 3015 and 3015.1. We 

19 strongly support their passage as drafted without 

20 further amendments.

21 As you know, the two of us were part of the 

22 group that authored the November 18, 2014 letter that 

23 was signed by 144 bankruptcy judges opposing the 

24 adoption of the national form plan. We were also two 
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1 of the signatories to the February 10, 2015 compromise 

2 proposal submitted to the Committee that formed the 

3 genesis for these proposed bankruptcy rules. That 

4 compromise was and is supported by bankruptcy judges, 

5 13 trustees, and creditors alike.

6 These proposed bankruptcy rules incorporate 

7 the spirit of the compromise, recognize the benefit of 

8 eliminating multiple plans within a district to just 

9 one uniform plan per district, while at the same time 

10 respecting the concerns of judges, 13 trustees, 

11 debtors' counsel, and creditors alike in preserving 

12 their ability to collaborate in crafting a single plan 

13 per district that meets demographics, economics, and 

14 cultural differences within a district.

15 Moreover, the adoption of these rules will 

16 avoid the broad opposition amongst bankruptcy judges 

17 and 13 trustees which would likely prove problematic 

18 to implementation of a single national form plan.

19 With regard to the comments made to the 

20 Committee by debtors' counsel voicing concerns that a 

21 mandatory model plan would allegedly run afoul of the 

22 code and abridge the rights of debtors and/or prepares 

23 non-standard plan provisions that are allegedly 

24 disapproved by judges simply because they are non-
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1 standard plan provisions, I offer the following, which 

2 is the same thing I would say to a disgruntled 13 

3 trustee or creditor. If you believe the judge has 

4 committed legal error, file an appeal and let the 

5 appellate process play out. That is the simplistic 

6 beauty and design of our judicial system. Thank you.

7 JUDGE IKUTA: Thank you.

8 JUDGE DOW: All right. Does anyone have any

9 questions of Judge Efremsky? This is Judge Dow again. 

10 I'm sorry.

11 (No response.)

12 JUDGE DOW: No questions of Roger?

13 (No response.)

14 JUDGE DOW: All right. Then I guess we can 

15 move on to our third witness.

16 JUDGE IKUTA: This is Sandra Ikuta. Our 

17 next witness is Norma Hammes. Ms. Hammes?

18 MS. HAMMES: Good morning, Judge Ikuta and 

19 members of the Committee. My name is Norma Hammes. 

20 Thank you for this opportunity.

21 I am here to speak against the adoption of 

22 the proposed compromise rule amendment that would 

23 allow local districts to opt out of using the national 

24 Chapter 13 plan, instead mandating use of a single 
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1 local plan adopted by the district.

2 Certainly, there is a justifiable purpose in

3 having a model plan. It can lay out a standard 

4 structure within which the debtor can express his or 

5 her proposed plan which must meet the test of Sections 

6 1322 and 1325(a). However, when a model plan goes 

7 beyond providing a structure for provisions to 

8 mandating content of the provisions, that is when 

9 things go wrong.

10 NACBA recently undertook a project to review

11 local plans because, if the opt-out rule is approved, 

12 these are the plans which are likely to be locally

13 mandated. Leading the task, I reviewed the content of 

14 about 70 local plans, and earlier this month NACBA 

15 surveyed its members about their experiences with 

16 their local plans. We received 128 detailed responses 

17 from 39 states, Puerto Rico, and the District of 

18 Columbia, totaling 60 separate districts. I want to 

19 mention also that NACBA will be filing comments before 

20 the deadline that will describe more of the results of 

21 the survey.

22 What I found was disheartening and revealed 

23 that many required provisions and procedures 

24 substantially abridge debtors' bankruptcy rights and 
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1 enlarge creditors' rights, in violation of 28 U.S.C. 

2 2075 and FRBP 9029. If a Chapter 13 debtor passes the 

3 Form 122C means test and the best interest of 

4 creditors test under the code, that debtor is entitled 

5 to propose a Chapter 13 plan that pays nothing on 

6 general unsecured claims.

7 I found that a high number of plans did not 

8 allow debtors to do that. Rather than allowing the 

9 debtor to select a dollar amount, including zero, for 

10 a dividend on general unsecured claims, which the 

11 national plan does allow, these local plans often 

12 hard-wire an overestimation of the trustee's fees into 

13 the plan payments and create a surplus which is paid 

14 to unsecured creditors. There's absolutely no way the 

15 debtor can avoid doing that by using that model plan. 

16 I believe this is a violation of 28 U.S.C. 2075.

17 Thirty-four percent of the respondents to 

18 NACBA's survey said that they are prohibited from 

19 filing any zero dividend plans by rules or enforced 

20 preferences of either the judge or the trustee, and 

21 many respondents expressed deep regret about this, 

22 knowing that their clients really could not afford to 

23 pay the dividend which was not, in fact, required by 

24 law.
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1 It is argued that the debtor's right to 

2 propose the plan under Section 1321 is protected 

3 because most local plans have a separate section where 

4 the debtor can propose additional provisions that may 

5 deviate from the model plan. However, in many courts 

6 around the country, including my own, that right is 

7 illusory since the debtor who proposes additional 

8 provisions is subjected to significant procedural 

9 hurdles.

10 In my own experience, since the district 

11 model plan became mandatory in our division in 

12 February 2016, the judges in our division have refused 

13 to confirm any plans, including uncontested plans, 

14 with no objections to them. No creditor has objected, 

15 the trustee hasn't objected. There's absolutely no 

16 objection to them. But because they contained 

17 additional provisions, no matter how insignificant --

18 MS. HEALY: I'm sorry to interrupt, but this

19 is your one-minute warning. Thank you.

20 MS. HAMMES: These cases remain unconfirmed 

21 despite the fact that the only remarkable aspect about 

22 them is the debtor has the temerity to propose 

23 additional provisions.

24 Since most debtors' attorneys do not begin 
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1 receiving payment on their allowed fees until their 

2 cases are confirmed, this is a pretty effective way to 

3 punish the debtors' bar for conscientiously 

4 representing their clients.

5 It is crucial that under either the national

6 plan or local plans debtors be protected from 

7 procedural burdens or call it what it is, punishment, 

8 for exercising their rights to propose additional 

9 provisions which comply with the code. I'm reminded 

10 of Henry Ford's quote, "They can have any color car 

11 they want as long as it's black." 

12 A one-size-fits-all local Chapter 13 plan 

13 that the debtor is required to sign in order to avoid 

14 punishment, particularly a plan which abridges the 

15 debtor's rights, cannot possibly meet the test of 

16 having been proposed by the debtor under 1321. And as 

17 Judge Efremsky just mentioned, if the consequence of 

18 including any additional provisions is that you have 

19 to appeal every case, that is proof of exactly what I 

20 was saying. Thank you for your time.

21 JUDGE IKUTA: Thank you.

22 JUDGE DOW: All right. This is Judge Dow 

23 again. Does anyone have questions of Ms. Hammes?

24 JUDGE GOLDGAR: This is Ben Goldgar. I have
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1 a question. I'm not entirely clear on what your 

2 position is on the proposed rules. You seem to have 

3 grievances with local practice, but I couldn't tell 

4 whether you thought that having the option of local 

5 plans as long as they met certain requirements was a 

6 bad one, or are you proposing that we should have a 

7 mandatory national plan with no sort of opt-out? 

8 Apart from your problems with local practice, I 

9 couldn't really tell what your position was on the 

10 rules.

11 MS. HAMMES: Well, my position on the rule 

12 is, as I started out, I said I'm speaking against the 

13 adoption of the so-called compromise rule. I'm 

14 absolutely opposed to that. And at this point, NACBA 

15 has been conflicted over the time that the related 

16 rules have been considered because some local plans 

17 are decent plans, but many are not. And that's the 

18 reason why we undertook the survey, to find out what 

19 exactly is the state of plans out there.

20 And the fact of the matter is the plans are 

21 so bad out there that the national model plan, which 

22 has been improved significantly over the time that 

23 it's been considered, is absolutely the preferable 

24 option, in fact, would benefit many debtors across the 
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1 country appropriately because they have been --

2 JUDGE GOLDGAR: Okay.

3 MS. HAMMES: Okay.

4 JUDGE GOLDGAR: So, in other words, your 

5 view is that the opt-out is not good and you would 

6 like to see a mandatory national plan period.

7 MS. HAMMES: Yes.

8 JUDGE GOLDGAR: Okay. Thank you.

9 MS. HAMMES: Thank you.

10 JUDGE DOW: Other questions of Ms. Hammes?

11 (No response.)

12 JUDGE DOW: All right. I have one. I'll 

13 ask you the same question I asked the last witness who 

14 testified in opposition to the rule. 

15 Once again, it seems to me that what you're 

16 complaining about is certain decisions by bankruptcy 

17 judges on substantive issues of bankruptcy law that 

18 you believe are not supported by the code. So how 

19 does adopting a national plan form solve that problem? 

20 And aren't you asking us to essentially go even 

21 further than we are now in proposing not only a 

22 mandatory national plan form but a plan form that 

23 prescribes certain substantive issues, such as, for 

24 example, whether there's a required dividend? And how 
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1 can that be done by a form or a procedural rule?

2 MS. HAMMES: Well, I think the Supreme Court

3 has actually answered that particular question. 

4 Lanning is pretty definitive on the topic of, you 

5 know, how you calculate a dividend for general 

6 unsecured claims. I don't think there's any question 

7 about that. So I think there's no substantive concern 

8 about that.

9 My concern is, at least as I've seen here 

10 locally and also nationwide, is less the substance, 

11 although the substance is certainly important, but 

12 primarily the fact that if you do propose any 

13 additional provisions you are seriously, seriously 

14 punished by the system because the judges, including 

15 Judge Efremsky, is absolutely not going to be allowing 

16 additional provisions. He just put forth, you know, 

17 appeal it. Okay, what are we supposed to appeal? 

18 Every single case?

19 JUDGE DOW: So my follow-up question to you 

20 is then, how does the approach that we're proposing 

21 somehow make that problem worse, or how can that 

22 problem be solved by a procedural rule or plan form?

23 MS. HAMMES: Well, the --

24 JUDGE DOW: You said debtors need procedural
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1 protections from these decisions of bankruptcy judges, 

2 but you don't tell us what those protections are. 

3 What are they?

4 MS. HAMMES: Well, I think one thing is to 

5 require substantive hearings on proposed plans during 

6 the time required by the code, which is 20 to 45 days 

7 after the 341 meeting. There has to be a substantive 

8 hearing on confirmation, which is not being properly 

9 abided by in our district nor in many other districts. 

10 That's part of the process of punishing debtors for 

11 actually filing a plan with additional provisions, is 

12 that they are not set for confirmation in any possible 

13 way, including ours. I mean, this is what we've 

14 undergone since February of 2016.

15 JUDGE DOW: All right. Well, thank you for 

16 addressing my questions. I appreciate it.

17 Are there any more questions of Ms. Hammes?

18 (No response.)

19 JUDGE DOW: All right. If not, then we can 

20 go on to our next witness.

21 JUDGE IKUTA: Okay. Our next witness is 

22 Judge Marvin Isgur.

23 JUDGE ISGUR: Thank you, Judge Ikuta and 

24 Judge Dow, both for your patience and willingness in 
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1 working to improve the Chapter 13 process in the 

2 United States and for today's hearing. Your efforts 

3 are recognized and applauded not only by me but my 

4 colleagues throughout the country.

5 I'd like to spend my time addressing the 

6 specific comments from the opposition.

7 First, public comment will be ignored, 

8 judges will do as they wish, and local plans will 

9 curtail a debtor's rights. That's not been my 

10 experience, but that's not an opt-out issue.

11 The very first sentence of the mandatory 

12 form plan is explicit: "The presence of an option on 

13 the form does not indicate that the option is 

14 permissible in your judicial district."

15 Put simply, if the judges of a district have

16 decided that certain treatments are impermissible, it 

17 will not matter whether those treatments are excluded 

18 from the local form or simply not permitted via the 

19 national form or if we maintain the current system. 

20 The result is the same and, as Judge Efremsky pointed 

21 out, the remedy is to appeal the judge's decision.

22 Now I'm quite sympathetic to the concept 

23 that everyone is entitled to their hearing, and they 

24 ought to be making the argument in the first instance 
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1 to the bankruptcy judge. But if the bankruptcy judge 

2 rejects it under any of these alternatives, the remedy 

3 is on appeal.

4 The second complaint is that judges won't 

5 allow for special provisions. In my view, a judge 

6 should disallow an impermissible special provision, 

7 but a judge should not disallow a permissible one. 

8 But this problem is identical in the mandatory 

9 national plan and in the opt-out plan. If the 

10 objecting party's fears are realized under any 

11 scenario, the remedy is by appeal. This Committee is 

12 not charged with policing the judiciary, nor do I 

13 believe that any policing is required. 

14 The third complaint is that a local plan 

15 might impermissibly require minimum distributions to 

16 the holders of unsecured claims. If a judge wrongly 

17 denies confirmation of a plan on this basis, I think 

18 it should be a matter for interlocutory appeal. This 

19 identical policy of a minimum distribution requirement 

20 will occur with the national form plan. A judge could 

21 simply decide not to confirm a national form plan 

22 unless it provides a minimum distribution.

23 Now I have previously ruled, as has my 

24 circuit, that no minimum distribution can be required 
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1 under the code. So I'm sympathetic to the point, but 

2 this is not a distinction between current practice, 

3 the national form, and the opt-out plans. It's the 

4 reason why if a judge errs, and it would be an error, 

5 that decision ought to be appealed.

6 Number four. The confirmation will be 

7 delayed by the presence of the opt-out plan. I think 

8 that that is simply not going to be empirically proven 

9 once this is tested. That's a feature that's common 

10 to both the national mandatory plan and the opt-out 

11 plan.

12 The allegation is divided into sub-parts: 

13 one, that the judge will intentionally delay 

14 confirmation or two, that it will delay confirmation 

15 to take time to review plans.

16 With respect to the allegations of 

17 intentional delay, I take some offense. My experience 

18 has been that my judicial colleagues throughout the 

19 country would never intentionally delay a matter for 

20 the purpose of denying justice to a litigant. I think 

21 that the kinds of delays that are being described are 

22 being described as much more likely going to occur 

23 with the national plan than with a local plan.

24 You may recall the testimony given on this 
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1 matter on January 23, 2015. One of the primary 

2 virtues of the national plan is its flexibility 

3 implemented through a series of check boxes. 

4 Unfortunately, that flexibility mathematically allows 

5 over 1.9 million possible combinations within the 

6 mandatory national plan. Although the vast majority 

7 of permutations will not have dire consequences, some 

8 will, and the time to evaluate the effect of the 

9 option combinations will be much lengthier than the 

10 time required to evaluate a mere special provision in 

11 an opt-out plan.

12 Presuming that the trustee or party in 

13 interest objects, the judge is going to be required to 

14 evaluate --

15 MS. HEALY: I'm sorry to interrupt, but this

16 is your one-minute warning.

17 JUDGE ISGUR: -- the cross-effects of the 

18 various check boxes.

19 For example, if a debtor checks the second 

20 box in Section 3.3 for the payment of an automobile 

21 debt and Section 3.3 has no lien retention provision 

22 and then checks the first box in Section 8.1 vesting 

23 the automobile with a debtor in confirmation, the 

24 debtor will be vested with a car and the lender will 
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1 not retain its lien against the car. That combination 

2 would clearly be illegal, but the effect of this and 

3 other permutations may be to cause delay much more 

4 prominently with the national plan than the local one.

5 And the fifth major complaint is that an 

6 amendment to Rule 3015 should specify certain types of 

7 special provisions as being somehow permissible or 

8 preferable.

9 I think this is a wholly unnecessary 

10 amendment. The true thrust of the draft amendment is 

11 to have this Committee to take a position on whether 

12 temporal provisions in plans can be overridden by 

13 payment caps to the holders of unsecured claims. It's 

14 a matter of substantial debate, and I strongly, 

15 strongly urge the Committee not to venture into an 

16 arena that is the subject of multiple and divergent 

17 opinions. Once again, those remedies lie with an 

18 appeal.

19 I've reviewed the comments that have been 

20 submitted to the committee, I've tried to take them 

21 seriously, but they are comments that go to the heart 

22 of the system and the heart of whether we will have 

23 judges make decisions on Chapter 13 plans. I strongly 

24 urge the Committee to view those comments as being 
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1 things that need to be taken up on a substantive basis 

2 by appellate courts throughout the United States and 

3 to adopt both Rule 3015 and 3015.1. Thank you.

4 JUDGE IKUTA: Thank you.

5 JUDGE DOW: All right. Thank you, Judge 

6 Isgur.

7 Are there any questions of Judge Isgur about

8 his testimony?

9 (No response.)

10 JUDGE DOW: No questions of Judge Isgur? 

11 (No response.)

12 JUDGE DOW: All right. Then I guess we'll 

13 go on to our fifth and final witness.

14 JUDGE IKUTA: Okay. And that's James Ike 

15 Shulman.

16 MR. SHULMAN: Yes, thank you, Judge Ikuta 

17 and members of the Committee. I want to thank you for 

18 this opportunity to testify today.

19 Initially I along with many of my colleagues

20 in the debtors bar nationwide believed that the 

21 proposed national form plan would bring many, much 

22 needed changes to bankruptcy courts across the nation. 

23 This was particularly true in those jurisdictions 

24 where the existing approved Chapter 13 local form 
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1 plans unfairly curtailed debtors' rights or created 

2 unjustified burdens, some of which were described by 

3 witnesses earlier on this call.

4 Examples include local form plans that 

5 require valuations of secured claims by separate 

6 motion and not through the plan; restrict the ability 

7 to specify dollar amount dividends for general 

8 unsecured claims; and restrict debtors' vesting rights 

9 that they have under 1322(a)(9).

10 I understood that while the proposed 

11 national form plan didn't include all of the 

12 provisions I personally would have desired as a 

13 debtors' attorney, it did offer an approach which 

14 would provide a much better balance between debtors' 

15 and creditors' rights than is offered by many current 

16 local form plans.

17 The national form plan has the benefit of 

18 having been vetted over a long period of time by all 

19 of the stakeholders in the system: judges, trustees, 

20 creditors' attorneys, debtors' attorneys. Everyone's 

21 weighted in, and as mentioned earlier by one of the 

22 witnesses, it's improved and offers some basic 

23 protections for debtors nationally.

24 Unfortunately, proposed Rule 3015.1 would 
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1 undo this achievement by permitting individual 

2 bankruptcy districts to ignore the national form plan 

3 and instead substitute a single mandatory local plan

4 with no built-in safeguards ensuring balance.

5 While the proposed rule does require 

6 adoption of such local district plans be done after 

7 "public notice and opportunity for public comment", my 

8 own experience with such procedures gives an 

9 indication of how such procedures can prove more 

10 illusory than real in protecting debtors' rights.

11 In late 2012, I was invited to participate 

12 in a process to review changes to our local form plans 

13 and make recommendations for the adoption of a new 

14 district-wide local plan in my district. The group 

15 reviewing those proposals included bankruptcy judges, 

16 trustees, and attorneys representing every division 

17 within our district. We held an initial lengthy, in18 person meeting at which many provisions were discussed 

19 in detail. Considerable progress was made towards 

20 consensus in the approaches. At the conclusion, we 

21 were advised that the review would continue and we'd 

22 get details later.

23 However, approximately a month later we were

24 advised that the process was being closed and many of
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1 our provisions that we had suggested were ignored, 

2 some of which had received consensus earlier, did not 

3 end up in the final document.

4 I recount this history not to relitigate 

5 what happened to me locally but rather as an 

6 illustration of I think the problem with having local 

7 districts adopt plans throughout the country. I'm 

8 sure in many cases the inputs of broad sections of the 

9 users of the system will have an impact, but I think, 

10 in others, there's no guarantee of that.

11 I think the overwhelming number of

12 bankruptcy judges nationwide haven't come from the 

13 consumer bankruptcy world. I think they all have good 

14 intentions, but that doesn't mean that they have the 

15 same experiences. I think the benefit of the national 

16 form plan is that it has had --

17 MS. HEALY: This is your one-minute warning.

18 MR. SHULMAN: Thank you, Judge.

19 That it has had that input and does contain 

20 many safeguards that I believe would be lost.

21 I have mentioned in my written comments, 

22 I've attached a proposed amendment to the rule, and I 

23 think that that goes some way in addressing the 

24 problems debtors' lawyers have in getting approval for 
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1 non-standard provisions which on their face don't 

2 appear to be prohibited by the code but which my 

3 colleagues earlier mentioned you have to go through a 

4 lot of turmoil and sometimes not have the ability to 

5 get approved. And I think that delays confirmation. 

6 It doesn't have to be intentional. It just is a 

7 matter of fact.

8 So I made my amendment proposals to deal 

9 specifically, to make it easier to specify a dollar 

10 dividend rather than leave it as an estimate or a 

11 rough percentage and also to make clear that the 

12 debtor's attorney proposing a specific vesting 

13 election won't unduly delay confirmation.

14 So I'm recommending that the rule not be 

15 adopted and that the national form plan be approved. 

16 But in the absence of that, I'm recommending my 

17 amendment language to deal with a couple of common 

18 concerns around the country. Thank you.

19 JUDGE IKUTA: Thank you.

20 JUDGE DOW: All right. Are there any 

21 questions of Mr. Shulman?

22 PROFESSOR GIBSON: Yes. This is Elizabeth 

23 Gibson. 

24 Mr. Shulman, I just want to ask about one 
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1 point you made, which was that some local plans don't 

2 allow the valuation of secured claims in the plan but 

3 require a motion.

4 The pending amendment to Rule 3012 would 

5 specifically authorize the term and the amount of the 

6 secured claim by motion in a claim objection or in a 

7 plan filed under Chapter 12 or Chapter 13. So would 

8 you expect that if this rule goes into effect, that 

9 would affect the ruling at the local level?

10 MR. SHULMAN: I'm uncertain what will happen

11 at the local level under that circumstance. I believe 

12 that the national form plan, by permitting valuation, 

13 does give from a debtor's perspective and the 

14 efficiency involved in doing it through the plan a 

15 significant benefit in proposing a plan, and I think 

16 that the weight of that could be helpful to debtors 

17 who attempt to do that.

18 PROFESSOR GIBSON: Right. And so the 

19 proposal would be that the rules would authorize that 

20 presumably even in the local plan form.

21 MR. SHULMAN: Yes.

22 JUDGE DOW: Any other questions of Mr. 

23 Shulman? 

24 (No response.)
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1 JUDGE DOW: All right. Well, I'll sort of 

2 give you the same opportunity I did the other two 

3 witnesses, maybe a slightly different question because 

4 I think you made your position a little bit clearer.

5 If I understand correctly, what you're 

6 saying is we haven't gone far enough. We should go 

7 back to the proposal of a mandatory national plan 

8 form. Is that correct?

9 MR. SHULMAN: Yes.

10 JUDGE DOW: And once again, it seems to me 

11 that much of what you are concerned about is 

12 bankruptcy judges imposing requirements of substantive 

13 law on confirmations that you believe are not 

14 supported by the code. How does adoption of the 

15 national plan form which we've already approved solve 

16 that problem?

17 MR. SHULMAN: Well, I don't know that any 

18 national plan is going to solve every problem, Judge, 

19 but I believe that the national plan, by laying out 

20 specific provisions that are clear on what they say on 

21 the face, gives all of the parties a better 

22 opportunity to utilize that language without having it 

23 sidetracked by local interpretation.

24 JUDGE DOW: But if your two principal 
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1 concerns are this issue about dividends and vesting, 

2 they're not held within the form plan that we've 

3 approved, Form 113, other than the provision on 

4 vesting which gives the debtor a variety of options.

5 MR. SHULMAN: Well, Judge, that's exactly my

6 point. The national plan on both of these accounts 

7 has language that I believe would address the concerns 

8 I put in my amendment. One is it allows the debtor to 

9 specify a dollar dividend the debtor wants to be 

10 placed. Of course, that dividend has to meet the test 

11 of disposable income and the best interests of 

12 creditors. It has to meet all of the code required 

13 tests. But it says if a debtor in a particular case 

14 has to pay $10,200 on general unsecured claims, you 

15 can put that in the national plan.

16 In local plans, you're prohibited in many 

17 cases from doing that. You have to put no less than 

18 language or estimated to be language, which, as my 

19 colleague, Ms. Hammes, testified, often leads to 

20 debtors having to pay more than the code requires the 

21 debtor to propose. And if the debtor is the one 

22 proposing a plan under 1321, I think the national form 

23 plan goes farther in giving life to that, the meaning 

24 of that by giving him the possibility.
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1 On the vesting issue you asked me about, 

2 there are many local plans that don't provide options. 

3 I took a look at some of Ms. Hammes' review. I think 

4 in the largest district in the country, the Central 

5 District of California, there's a one-size-fits-all 

6 vesting proposal and anything different requires a 

7 non-standard provision, gets an objection. I think a 

8 lot of those problems that the national plan doesn't 

9 have will continue to be there two, three, four, five, 

10 10 years from now at the local level by not adopting 

11 the national plan and curbing some of those problems 

12 at this time.

13 JUDGE DOW: Okay. Just a technical matter. 

14 You referred to 1322(a)(9), but you're actually 

15 referring to 1322(b)(9), isn't that correct?

16 MR. SHULMAN: I don't have it in front of 

17 me, Judge, but if I'm wrong, I will appreciate that 

18 correction from you.

19 JUDGE DOW: All right. I have no further 

20 questions. Thank you for addressing my questions.

21 Does anyone else have any questions of our 

22 last witness?

23 (No response.)

24 JUDGE DOW: All right. Judge Ikuta?
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1 JUDGE IKUTA: Well, I'd like to thank all 

2 the witnesses for their testimony. This information 

3 is extremely important for our process.

4 Our next meeting is in Washington, D.C. this

5 November, and the information regarding that meeting 

6 will also be posted on the U.S. Courts Rules website.

7 Scott, anything else we need to announce 

8 before adjourning?

9 (No response.)

10 MR. MYERS: Sorry, Judge, I didn't have -- I

11 couldn't figure out where the mute button was.

12 I know that the Forms Subcommittee wanted to

13 have a follow-up call this morning. I would suggest 

14 five minutes after the hour.

15 JUDGE IKUTA: Okay. At 9:05? 

16 MR. MYERS: Yes.

17 JUDGE IKUTA: And with that, we are 

18 adjourned. Thank you very much.

19 (Whereupon, at 12:08 p.m., the meeting in 

20 the above-entitled matter adjourned.)

21 //

22 //

23 //

24 //
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1 //

2 //

3 //

4 //

5 //

6 //

7 //

8 //

9 //

10 //

11 //

12 //

13 //

14 //
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REPORTER'S CERTIFICATE

DOCKET NO.: N/A

CASE TITLE: Bankruptcy Rules Committee Meeting

HEARING DATE: September 27, 2916

LOCATION: Washington, D.C.

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before the Administrative Office of the 

U.S. Courts.

Date: September 27, 2016

 

Stephen Grider

Official Reporter

Heritage Reporting Corp.

Suite 206

1220 L Street, N.W.

Washington, D.C. 20005