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How Do the Recent Rule Changes Affect You?

February 19, 2019

By Steven R. Kinsella

Know the rules written on a chalkboardIn April 2018, the United States Supreme Court approved rule changes to both the Federal Rules of Civil Procedure (the Civil Procedure Rules) and the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules). The rule changes became effective on December 1, 2018. While the modifications are not as monumental as those made in previous years, one set of changes, focusing on electronic service, will certainly impact the day-to-day practice for bankruptcy professionals.

Bankruptcy Rule 5005 now makes electronic filing mandatory in all districts for all parties represented by an attorney, unless the court permits a paper filing for good cause or the district adopts a local rule. Bankruptcy Rule 8011 makes a corresponding change for appeals, requiring electronic filing for all appeals. Most courts have already adopted some type of mandatory electronic filing through their local rules, but the changes to the Bankruptcy Rules will now make that practice standard throughout the country.

Consistent with the widespread acceptance of electronic filing and service, Civil Procedure Rule 5(b)(2)(E) was amended to authorize service on registered users by filing a pleading with the court’s electronic filing system. If service is made through the court’s electronic filing system, Civil Procedure Rule 5(d)(1)(B) now no longer requires a certificate of service. Civil Procedure Rule 5 is made applicable to bankruptcy proceedings by Bankruptcy Rule 7005 and Bankruptcy Rule 9014. While Bankruptcy Rule 9014(b) requires the initial service of motions to comply with Bankruptcy Rule 7004, which adopts, with some modifications, Civil Procedure Rule 4, all subsequent filings are governed by Civil Procedure Rule 5. Bankruptcy Rule 7004 authorizes service of contested motions and complaints by first class mail, among other types of service.

Practically speaking for practitioners, this means that after a motion is filed and served pursuant to Bankruptcy Rule 7004, the filing of objections, replies and supplemental filings to the court’s electronic filing system will be sufficient for service purposes on registered users. Similarly in adversary proceedings, any pleadings filed after the complaint may be served on registered users by filing that pleading with the court’s electronic filing system. In both instances, no certificate of service will be required. These changes should make responsive filings simpler and easier for all parties involved in a contested matter and should also reduce clutter on the docket created by certificates of service that simply reflect service by the electronic filing system.

The other rule modifications mainly focused on appellate procedure and the addition of payment-change notice requirements for lenders secured by a debtor’s personal residence. The following is a list and brief summary of the rules and the modifications that went into effect:

Fed. R. Civ. P.

Modification

Rule 5

Change authorized service on registered users by filing pleading with the court’s electronic filing system and removed the requirement for a certificate of service if service is made through the electronic filing system.

Rule 23

Change to preliminary approval of class action.

Rule 62

Change increases the length of the automatic stay after entry of an order from 14 days to 30 days.

Rule 65.1

Change replaces reference to “supersedeas bond” with “bond or security.”

 

Fed. R. Bankr. P.

Modification

Rule 3002.1

Change requires creditors with claims secured by a debtor’s personal residence to provide notice of all post-petition payment changes, fees, expenses and charges.

Rules 5005 and 8011

Change makes electronic filing mandatory in all districts for all parties represented by an attorney.

Rule 7004

Technical change to correct a cross reference to Fed. R. Civ. P. 4.

Rule 7062

Change makes clear that the increase of the length of the automatic stay in Fed. R. Civ. P. 62 does not apply in bankruptcy proceedings.

Rule 8002

Main change adds further clarification to the required timing for filing an appeal by more clearly defining when a judgment, order or decree is entered.

Rule 8006

Change permits the court to file a statement on the merits after the parties file a joint certification for a direct appeal to the court of appeals.

Rules 8007, 8010, 8021 and 9025

Change replaces reference to “supersedeas bond” and “surety” with “bond or other security” to be consistent with change to Fed. R. Civ. P. 65.1.

Rule 8011

Change makes electronic filing mandatory for all appeals.

Rules 8013, 8015, 8016 and 8022

Changes establish length limits for appellate proceedings with length based on word count rather than page count.

Rule 8017

Change authorizes a judge to prohibit or strike an amicus brief if that brief will cause the judge’s disqualification.

Rule 8018.1

Change authorizes a district court to treat a bankruptcy court’s ruling as proposed findings of fact and conclusions of law if the district court determines that the bankruptcy court lacked jurisdiction to enter the ruling.

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