Questionnaire on Use of Bankruptcy Rule 7026 - Mandatory 

Disclosure - in Adversary Proceedings

TO: All Bankruptcy Judges

FROM: A. Thomas Small, Chair, Advisory Committee on Bankruptcy Rules, 

Judicial Conference of the U.S.

 

SUBJECT: Questionnaire on Use of Bankruptcy Rule 7026 - Mandatory Disclosure 

- in Adversary Proceedings

Rule 26 of the Federal Rules of Civil Procedure requires a series of actions by parties 

including the disclosure of a variety of information and participation in a discovery

conference. Civil Rule 26 is made applicable to adversary proceedings (APs) by

Bankr. Rule 7026. The purpose of this questionnaire is to obtain bankruptcy judge 

responses and comments on whether the Advisory Committee on Bankruptcy Rules 

should recommend an amendment to Bankr. Rule 7026 to exempt certain categories 

of APs from the mandatory disclosure requirements of Rule 26.

Please note: Because the completed questionnaire will be submitted 

anonymously, you can take as much time as you may need, but you will not 

be able to save a partially completed questionnaire and return to it at a later 

time to complete and submit it. If you wish to print the survey you may use 

the print button below. Choose landscape orientation in the printer dialog 

for best results.

Please submit your response by February 13, 2004.

1. In your experience, what categories of APs are generally resolved before 

the due date for mandatory disclosure requirements under Rule 26? For 

each AP in the list below please click the box if the AP is generally resolved 

before the due date for 26(a)(1) - 26(a)(3) disclosures.

Adversary Proceedings 26(a)(1) 26(a)(2) 26(a)(3)

§542 - turnover of property

§544 - powers of trustee
§547 - preference

§548 - fraudulent conveyance

Validity, priority or extent of lien

Approval of sale of property of the estate and 

of a co-owner

Objection/revocation of discharge

Revocation of confirmation

§523(a)(2) - credit card abuse/false pretenses

§523(a)(5) - support/alimony

§523(a)(8) - student loan

§523(a)(15) - divorce/separation property 

settlement/decree

Injunctive relief - reinstatement of stay

Subordination of claim

Declaratory judgment

Determination of removed cause of action

Other (please be specific)

a. 

b. 

c. 

No category of AP is generally resolved before 

the due date

2. In your experience, what categories of APs generally involve little or no 

discovery? Please click all that apply. 

Adversary Proceedings

§542 - turnover of property

§544 - powers of trustee

§547 - preference

§548 - fraudulent conveyance

Validity, priority or extent of lien

Approval of sale of property of the estate and of a co-owner

Objection/revocation of discharge

Revocation of confirmation
§523(a)(2) - credit card abuse/false pretenses

§523(a)(5) - support/alimony

§523(a)(8) - student loan

§523(a)(15) - divorce/separation property settlement/decree

Injunctive relief - reinstatement of stay

Subordination of claim

Declaratory judgment

Determination of removed cause of action

Other (please be specific)

a. 

b. 

c. 

No category of AP generally involves little or no discovery

3. For which categories of APs do you generally, by court order, find that 

certain or all Rule 26 mandatory disclosures requirements are not 

appropriate in the circumstances of the action? Please click all that apply. 

Adversary Proceedings

§542 - turnover of property

§544 - powers of trustee

§547 - preference

§548 - fraudulent conveyance

Validity, priority or extent of lien

Approval of sale of property of the estate and of a co-owner

Objection/revocation of discharge

Revocation of confirmation

§523(a)(2) - credit card abuse/false pretenses

§523(a)(5) - support/alimony

§523(a)(8) - student loan

§523(a)(15) - divorce/separation property settlement/decree

Injunctive relief - reinstatement of stay

Subordination of claim
Declaratory judgment

Determination of removed cause of action

Other (please be specific)

a. 

b. 

c. 

No category of AP generally requires such an order

4. In your experience, for which categories of APs do all affected parties 

generally stipulate that the parties will not engage in certain or all Rule 26 

mandatory disclosure requirements? Please click all that apply. 

Adversary Proceedings

§542 - turnover of property

§544 - powers of trustee

§547 - preference

§548 - fraudulent conveyance

Validity, priority or extent of lien

Approval of sale of property of the estate and of a co-owner

Objection/revocation of discharge

Revocation of confirmation

§523(a)(2) - credit card abuse/false pretenses

§523(a)(5) - support/alimony

§523(a)(8) - student loan

§523(a)(15) - divorce/separation property settlement/decree

Injunctive relief - reinstatement of stay

Subordination of claim

Declaratory judgment

Determination of removed cause of action

Other (please be specific)

a. 

b. 

c. 
No category of AP is generally made exempt from mandatory 

disclosure requirements by parties' stipulation

5. For which categories of APs are the Rule 26 mandatory disclosure 

requirements honored in the breach or implicitly disregarded by the parties' 

lawyers or one or more judge(s) of your court? Please click all that apply. 

Adversary Proceedings parties' 

lawyers

judge(s) 

of court

§542 - turnover of property

§544 - powers of trustee

§547 - preference

§548 - fraudulent conveyance

Validity, priority or extent of lien

Approval of sale of property of the estate and of a coowner

Objection/revocation of discharge

Revocation of confirmation

§523(a)(2) - credit card abuse/false pretenses

§523(a)(5) - support/alimony

§523(a)(8) - student loan

§523(a)(15) - divorce/separation property 

settlement/decree

Injunctive relief - reinstatement of stay

Subordination of claim

Declaratory judgment

Determination of removed cause of action

Other (please be specific)

a. 

b. 

c. 

The mandatory disclosure requirements are not 

honored in the breach or implicitly disregarded by the 

parties or judge(s) for any category of AP.
6. What categories of APs do you believe should be presumptively exempt 

under Bankruptcy Rule 7026 from Civil Rule 26 mandatory discovery 

requirements? In this question, for any AP category where you decide to 

click the circle labelled "The category should be presumptively exempt, with 

some exceptions" or "The category should NOT be presumptively exempt, 

with some exceptions" the hypothetical examples below illustrate how you 

might go about filling in the blank box to specify the types of APs that you 

believe should be exempt. 

Example

Background: If you conclude that §523(a)(8) actions should be 

presumptively exempt from Rule 26 mandatory disclosure requiremen

you might conclude that matters of proof relevant to a finding of undue 

hardship require significant factual and expert testimony discovery and,

therefore,

Possible Response for Example 1

§523(a)(8) - student loa

1

ts --

n

should not be exempt.

:

The whole category should be presumptively exempt.

None of the category should be presumptively exempt.

The category should be presumptively exempt, with some exceptions.

The category should NOT be presumptively exempt, with som

exceptions

Please specify exceptions

e

.

:

Except for those actions that require discovery relevant to a 

finding of undue hardship.

Example

Background: If you conclude that §523(a)(5) actions should not b

presumptively exempt from Rule 26 mandatory disclosure requirements -

you might conclude that §523(a)(5) matters affecting the spouse of th

2

e

-

e
debtor are exempt from such disclosures but only for the duration of a

official "evaluation" by the State Spousal-Abuse Cente

Possible Response for Example 2

§523(a)(5) - support/alimon

n

r.

:

y

The whole category should be presumptively exempt.

None of the category should be presumptively exempt.

The category should be presumptively exempt, with some exceptions.

The category should NOT be presumptively exempt, with som

exceptions

Please specify exceptions

e

.

:

Except for confidential communications involving the debtor's

spouse during an official State Spousal-Abuse Center

"evaluation."

 

Please review the following categories of APs and click one circle for each 

category to indicate whether you believe the AP category, or a part of the 

AP category, should be exempt from Rule 26 mandatory disclosure 

requirements.

6a. §542 - turnover of 

property The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6b. §544 - powers of 

trustee The whole category should be presumptively 

exempt. 
None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6c. §547 - preference The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6d. §548 - fraudulent 

conveyance The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:
6e. Validity, priority or 

extent of lien The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6f. Approval of sale of 

property of the estate

and of a co-owner

The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6g. Objection/revocation 

of discharge The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:
6h. Revocation of 

confirmation The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6i. §523(a)(2) - credit 

card abuse/false 

pretenses

The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6j. §523(a)(5) - 

support/alimony The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 
The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6k. §523(a)(8) - student 

loan The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6l. §523(a)(15) - 

divorce/separation 

property 

settlement/decree

The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:
6m. Injunctive relief - 

reinstatement of stay The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6n. Subordination of 

claim The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6o. Declaratory judgment The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 
Please specify exceptions:

6p. Determination of 

removed cause of 

action

The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6q. Other AP (a) please specify category:

The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:
6r. Other AP (b) please specify category:

The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

6s. Other AP (c) please specify category:

The whole category should be presumptively 

exempt. 

None of the category should be presumptively 

exempt. 

The category should be presumptively exempt, 

with some exceptions. 

The category should NOT be presumptively 

exempt, with some exceptions. 

Please specify exceptions:

7. (Optional) Please further explain why certain APs should or should not be 

exempt from mandatory disclosure of Rule 26.
Please limit your response to 500 words.

8. We welcome any additional comments or suggestions you may have 

regarding the application of Rule 26 disclosure requirements to adversary 

proceedings.

Please limit your response to 500 words.

Thank you very much for your help. Please complete the survey by clicking the 

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