Federal Rules of Bankruptcy Procedure (“FRBP”) Changes

Dear constituency list members of the Insolvency Law Committee, the following is a summary of recent amendments to the Federal Rules of Bankruptcy Procedure, prepared by former ILC co-chair John N. Tedford, IV, a partner at Danning, Gill, Israel & Krasnoff, LLP:

Summary

In April 2022, the Supreme Court submitted to Congress proposed revisions to the Federal Rules of Bankruptcy Procedure (“FRBP”) and other federal rules.  Because Congress did not reject or defer the proposed amendments, the proposed revisions went into effect on December 1, 2022.

Sixteen existing rules have been amended, and one new rule has been adopted.  Most amendments are relatively unremarkable revisions needed to conform the rules to unique features of subchapter V of chapter 11 (for example, the co-existence of a debtor in possession and a trustee). Attorneys who regularly represent debtors in subchapter V cases should review the redline (starting on page 56 of the PDF) to identify some of the procedures that apply (or don’t apply, as the case may be) in subchapter V cases.

The entire package of materials transmitted to Congress may be accessed here.  Some of the amendments to the FRBP are described below.

New FRBP 7004(i) – Service of process on business entities and insured depository institutions

The most impactful amendment is to FRBP 7004.  When serving a business entity or officer of an insured depository institution with a complaint and summons in an adversary proceeding, or a motion in a contested matter, it is now sufficient to direct service to the “Chief Executive Officer,” “Agent for Service of Process,” or other appropriate title without identifying the name of the person holding that position.

Existing FRBP 7004(b)(3) provides that a domestic or foreign corporation, or a partnership or other incorporated association, may be served with process “by mailing a copy of the summons and complaint to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process . . . .”  FRBP 7004(h) provides that, with certain exceptions, service on an insured depository institution “shall be made by certified mail addressed to an officer of the institution.”  These rules also apply in contested matters when serving a motion on a party against whom relief is sought.  See Fed. R. Bankr. P. 9014(b).

Does the complaint/summons or the motion need to be addressed to a specific person (e.g., “John Doe, President” or “Jane Doe, Agent for Service of Process”), or is it sufficient to address it just to “President” or “Agent for Service of Process”?  Courts are divided on this question.  Compare In re Forester, 2021 WL 603378 (Bankr. C.D. Cal. Feb. 10, 2021) (service upon unnamed corporate officers does not comply with applicable rules), and In re Schoon, 153 B.R. 48 (Bankr. N.D. Cal. 1993) (same), with In re Braden, 516 B.R. 672 (Bankr. S.D. Ga. 2014) (service addressed to “Officer” or “Agent” meets the requirements of the rule), and In re C.V.H. Transport, Inc., 254 B.R. 331 (Bankr. M.D. Pa. 2000) (same).

New FRBP 7004(i) resolves this question and rejects cases interpreting FRBP 7004(b)(3) and 7004(h) to require service on an expressly named officer or agent.  The new rule reads, in relevant part:  “The defendant’s officer or agent need not be correctly named in the address – or even be named – if the envelope is addressed to the defendant’s proper address and directed to the attention of the officer’s or agent’s position or title.”  Accordingly, as long as a document is sent to a proper address, service under FRBP 7004(b)(3) is proper if the envelope is directed to the attention of the “Chief Executive Officer,” “Managing Agent,” “General Agent,” “Officer,” “Agent for Service of Process,” or similar title.

Practitioners should note that the manner of service of claim objections is still governed by FRBP 3007(a)(2).  That rule still requires that an objection to a business entity’s claim be served “to the person most recently designated on the claimant’s original or amended proof of claim as the person to receive notices, at the address so indicated.”

Amended FRBP 5005(b) – Notices, motions, applications, and other papers served on the U.S. Trustee

Amended FRBP 5005(b)(1) confirms that unless a court order or local rule provides otherwise, complaints, notices, motions, applications, objections, and other papers required to be served on the U.S. Trustee may be served via the court’s electronic filing system.  (At least some courts’ local rules already provide that most papers may be served on the U.S. Trustee via the court’s electronic filing system.  See, e.g., CACB LBR 2002-2(a).)

Amended FRBP 5005(b)(2) provides that an entity serving the U.S. Trustee “other than through the court’s electronic filing system” must file a proof of service stating the manner by which the paper was transmitted and the date on which it was served.  The Advisory Committee Note reflects that the intent of the amendment is “to recognize that parties meeting transmittal obligations to the United States trustee using the court’s electronic filing system need not file a statement evidencing transmittal under Rule 5005(b)(2).”  Even so, especially since some local rules require proof of service on the U.S. Trustee (see, e.g., CACB LBR 2002-2(a)(2)(B)), it is probably still a good idea for parties to list the U.S. Trustee on their proofs of service.

Amended FRBP 3002(c)(6) – Standard for obtaining an extension of time to file a proof of claim in chapter 7, 12 and 13 cases

Amended FRBP 3002(c)(6) establishes a single standard for granting motions for an extension of time to file a proof of claim.  Under the amended rule, the court may grant an extension if “the notice was insufficient under the circumstances to give the creditor a reasonable time to file a proof of claim.”  It no longer matters whether the debtor failed to timely file a list of creditors’ names and addresses, or whether the bar date notice was mailed to a foreign address. 

Amended FRBP 3014 – Making the 1111(b) election in a subchapter V case

FRBP 3014 provides that, in a chapter 11 case, an 1111(b) election may be made prior to the conclusion of the hearing on the disclosure statement or within such later time as the court may fix.  Since subchapter V debtors do not file disclosure statements (unless required by the court), FRBP 3014 has been amended to provide that in a subchapter V case in which section 1125 does not apply, the election may be made no later than a date the court may fix. 

New FRBP 3017.2 – Dates that must be fixed by the court in subchapter V cases

New FRBP 3017.2 requires the court to establish certain dates in subchapter V cases in which disclosure statements are not required.  (It does not say when these dates must be established.)  These are dates that ordinarily are set when a disclosure statement is approved.  The new rule requires the court to set: (1) the time for creditors and interest holders to accept or reject the plan; (2) the “record date” determining the holder of a claim or equity interest entitled to accept or reject the plan; (3) the date of the confirmation hearing; and (4) the deadline for the plan, notice of the voting deadline, and notice of the confirmation hearing to be served. 

These materials were written by former ILC co-chair John N. Tedford, IV, of Danning, Gill, Israel & Krasnoff, LLP, in Los Angeles, California (jtedford@DanningGill.com).  Editorial contributions were provided by Kit Gardner of the Law Offices of Kit J. Gardner in San Diego California (kgardner@gardnerlegal.com) and Meredith King of Franklin, Soto, Leeds, LLP in San Diego, California (mking@fsl.law). 

Thank you for your continued support of the Committee.