Connecting You to the Latest in Colorado Law : : Colorado Bar Association Continuing Legal Education
The U.S. Bankruptcy Court for the District of Colorado announced that it will be closed from 11:30 a.m. to 12:45 p.m. on Tuesday, December 18, 2012. The closure is so that the court staff can have a holiday luncheon. The court requests that all paper filings and telephone calls be avoided during this time.
The bankruptcy court will also be closed Monday and Tuesday, December 24 and 25, for Christmas, and December 31 and January 1, for New Year’s.
The U.S. Bankruptcy Court for the District of Colorado has amended its Chapter 13 Plan form. A General Protective Order will enter to make the form effective February 1, 2013. The changes are generally related to formatting, but there are also some substantive changes, which are highlighted on the PDF version of the form.
The U.S. Bankruptcy Court judges welcome input on the form. To submit feedback, please email comments and suggestions to webmaster@cob.uscourts.gov.
The form is available in MS Word and Adobe Acrobat PDF. Download the form from the U.S. Bankruptcy Court webpage or click here for the PDF.
The U.S. Bankruptcy Court for the District of Colorado announced that it will be closed on Monday, December 24, 2012 and Monday, December 31, 2012, so that the judges and staff may spend more time with their families.
The court will also be closed on Tuesday, December 25, in honor of the Christmas holiday, and Tuesday, January 1, in honor of the New Year’s holiday. Click here to see GPO 2012-06, signed by Chief District Judge Wiley Y. Daniel and Chief Bankruptcy Judge Howard R. Tallman, which authorizes the closure.
The Bankruptcy Judges of the United States Bankruptcy Court for the District of Colorado have asked the Federal Judicial Center (FJC) to survey attorneys who have practiced in the district to assess the performance of each of the Bankruptcy Judges. The surveys are a part of the court’s ongoing commitment to provide the highest level of public service possible. The FJC is the research and education organization for the federal courts.
The start-date of the surveys will be staggered over the next eleven weeks. Click here to view the schedule for each judge.
On the start date for each survey, the FJC will send an email to attorneys who have practiced before the particular Bankruptcy Judge. The email will explain how to access and complete an online questionnaire.
The FJC will compile and analyze the survey responses and will provide each judge a report, including a statistical summary and a compilation of the comments that are received. No identifying information about survey respondents will be given to the judges. The results are exclusively for the judge’s use in improving his or her performance; they will not be provided to anyone other than the judge and will not be used in the reappointment process.
If you do not receive an email from the FJC and want to participate, please contact Ms. Beth Wiggins of the FJC at (410) 308-3751 or (202) 502-4076 or by email at fjc_survey@fjc.gov.
Click here for more information about the survey process.
According to the United States Courts website, many federal courts now provide automatic case notification through the use of RSS feeds, allowing the public to easily stay informed of newly docketed events.
To do so, anyone can subscribe to a court’s RSS feed, which is free and includes automatic notification of activity in individual cases the user selects.
The feed offers summarized text, such as the name of the document filed, with links to the document and docket report. Results may be sorted by date or case title.
Users must have an account with the judiciary’s Public Access to Court Electronic Documents (PACER) system, and log in to PACER to view the document or docket report linked to the RSS feed. There are many available RSS readers that offer the capability.
To learn which district, bankruptcy, and appellate courts have implemented RSS, visit the PACER website, and then click on the court’s RSS feed icon to display the feed.
Fees apply for electronic access to most documents. The current fee is eight cents per page, with a maximum charge of $2.40 per document. There is no fee for access to court opinions, and fees are waived for users who incur less than $10 of use in a quarterly billing cycle.
The U.S. Bankruptcy Court for the District of Colorado issued its opinion in In re Evans on Wednesday, March 23, 2011.
Debtor, the former president of two closely-held corporations, filed an individual Chapter 11 petition and later converted his case to Chapter 7. After conversion, the Chapter 7 Trustee sought to include in the Chapter 7 estate distributions Debtor received from the corporations postpetition, but pre-conversion. The Court concluded that Debtor had adequately demonstrated at trial that the distributions constituted “earnings” excluded from the estate under § 541(a)(6). The Chapter 7 Trustee, who bore the ultimate burden of persuasion, failed to demonstrate that any portion of the distributions were attributable to the “enterprise value” of the corporations’ assets rather than the Debtor’s services. The Court further concluded that, although an individual Chapter 11 debtor’s postpetition earnings are included in the estate under § 1115(a), those postpetition earnings revert to the Debtor upon conversion to Chapter 7 pursuant to § 348(f). The Court acknowledged that, by its terms, § 348(f) applies only to conversion from Chapter 13 to Chapter 7. Nevertheless, the Court concluded that the primary policy behind § 348(f)–to avoid penalizing debtors who first attempt a repayment plan–applied equally in cases which convert from Chapter 11 to Chapter 7.
Other published Bankruptcy Court opinions can be found here. Unpublished opinions can be found here.
The U.S. Bankruptcy Court for the District of Colorado issued its opinion in In re Gentry on Monday, December 19, 2011.
11 U.S.C. §101(10A)(B)
This case presented the question of whether debtors must include unemployment compensation in their calculation of current monthly income (“CMI”) on Form 22C, and in their calculation of projected disposable income (“PDI”) in their Chapter 13 plan. Debtors argued that the unemployment compensation is a “benefit received under the Social Security Act” and thus excluded from the calculation of CMI by 11 U.S.C. § 101(10A)(B). In determining an issue of first impression in this district, the Court analyzed the relationship between the Social Security Act and unemployment compensation, and concluded that it is not a benefit received under the Social Security Act. As a result, the Court denied confirmation due to Debtors’ failure to include the income in the plan and required an amended Form 22C and plan.
Other published Bankruptcy Court opinions can be found here. Unpublished opinions can be found here.
The Tenth Circuit Court of Appeals published its opinion in Miller v. Deutsche Bank National Trust Co. on Wednesday, February 1, 2012.
The Tenth Circuit reversed the bankruptcy court’s decision. Respondent Bank brought a foreclosure action against the home owned by Petitioners and obtained an Order Authorizing Sale (OAS). Petitioners then filed a Chapter 13 bankruptcy petition. Upon the filing of their petition, an automatic stay entered, halting the foreclosure proceedings. Respondent Bank obtained an order from the bankruptcy court relieving it from the stay to permit the foreclosure to continue. The Tenth Circuit Bankruptcy Appellate Panel affirmed the bankruptcy court’s order granting Respondent Bank relief from the automatic stay and Petitioners appealed.
“The Bankruptcy Code provides that ‘[o]n request of a party in interest and after notice and a hearing, the court shall grant relief from the stay’ if the party in interest has made the appropriate showing to obtain such relief. . . . The Bankruptcy Code does not define the term ‘party in interest’ for purposes of this subsection. Courts have concluded, however, that in order to invoke the court’s power to award relief under § 362(d), a party must be either a creditor or a debtor of the bankruptcy estate. . . . The question, then, is whether [Respondent] Bank has established its status as a creditor of the [Petitioners]’ bankruptcy estate.” The Court concluded that “the evidence is insufficient as it currently stands to establish that [Respondent] Bank is a ‘party in interest’ entitled to seek relief from stay. The bankruptcy court therefore abused its discretion by granting [Respondent] Bank relief from stay.”
United States Supreme Court Chief Justice John Roberts, Jr. has issued his 2011 Year-End Report on the Federal Judiciary. The Report discusses federal judges’ Code of Conduct, financial disclosures and gift regulation, and recusal. Justice Roberts’ Report also provides an appendix covering the workload of the many federal courts over the last year:
In 2011, caseloads increased in the U.S. district courts and in the probation and pretrial services offices, but decreased in the U.S. appellate and bankruptcy courts. Total case filings in the district courts grew 2% to 367,692. The number of persons under post-conviction supervision rose 2% to 129,780. Cases opened in the pretrial services system also went up 2%, reaching 113,875. In the U.S. courts of appeals, though, filings dropped 1.5% to 55,126. Filings in the U.S. bankruptcy courts, which had climbed 14% in 2010, declined 8% this year to just below 1.5 million petitions.
The Supreme Court of the United States
The total number of cases filed in the Supreme Court decreased from 8,159 filings in the 2009 Term to 7,857 filings in the 2010 Term, a decrease of 3.7%. The number of cases filed in the Court’s in forma pauperis docket decreased from 6,576 filings in the 2009 Term to 6,299 filings in the 2010 Term, a 4.2% decrease. The number of cases filed in the Court’s paid docket decreased from 1,583 filings in the 2009 Term to 1,558 filings in the 2010 Term, a 1.6% decrease. During the 2010 Term, 86 cases were argued and 83 were disposed of in 75 signed opinions, compared to 82 cases argued and 77 disposed of in 73 signed opinions in the 2009 Term.
The Federal Courts of Appeals
Filings in the regional courts of appeals fell 1.5% to 55,126. Growth occurred in original proceedings and bankruptcy appeals. Appeals arising from the district courts decreased. Although civil appeals remained fairly stable, reductions occurred in many types of criminal appeals. Appeals of administrative agency decisions declined as a result of the continued drop in filings related to the Board of Immigration Appeals.
The Federal District Courts
Civil filings in the U.S. district courts grew 2% to 289,252 cases. Fueling this growth was a 2% increase in federal question cases (i.e., actions under the Constitution, laws, or treaties of the United States in which the United States is not a party in the case), which resulted mainly from cases addressing civil rights, consumer credit, and intellectual property rights.
Cases filed with the United States as a party climbed 9%. Those with the United States as plaintiff increased in response to a surge in defaulted student loan cases. Cases with the United States as defendant rose largely because of growth in Social Security cases.
Although criminal case filings (including transfers) remained stable (up by 12 cases to 78,440), the number of criminal defendants increased 3% to set a new record of 102,931. Growth in filings occurred for defendants charged with drug crimes, general offenses, firearms and explosives offenses, sex offenses, and property offenses.
Filings for defendants charged with immigration offenses fell for the first time since 2006, decreasing 3%. The southwestern border districts accounted for 74% of the Nation’s total immigration defendant filings, up from 73% in 2010.
The Bankruptcy Courts
Filings of bankruptcy petitions declined 8% to 1,467,221. This was the first reduction since 2007, when filings plunged after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 took effect. Filings for 2011 were lower in 87 of the 90 bankruptcy courts. Nonbusiness petitions fell 8%, and business petitions dropped 14%.
Bankruptcy petitions decreased 10% under chapter 7, 16% under chapter 11, and 4% under chapter 13.
The Federal Probation and Pretrial Services System
The 129,780 persons under post-conviction supervision on September 30, 2011, represented an increase of 2% over the total from the previous year. The number of persons serving terms of supervised release after their departure from correctional institutions grew 2% to 105,037, and amounted to 81% of all persons under supervision.
Cases opened in the pretrial services system in 2011, including pretrial diversion cases, rose 2% to 113,875.
Click here to read the full report issued by the United States Courts.
Editor’s Note: CBA-CLE will be holding a program covering these important changes to the Bankruptcy Procedure Rules on Wednesday, November 30th before the rules go into effect. Every attorney practicing bankruptcy law must understand the new rules to avoid sanctions for failing to timely and completely comply with the new requirements. Click here for more information.
On December 1, 2011, several Federal Rules of Bankruptcy Procedure changes will go into effect. Some of the new rules are also accompanied by revised forms. The U.S. Bankruptcy Court for the District of Colorado requests that practitioners pay particular attention to changes to Rule 3001 and the addition of Rule 3002.1, which relate to proofs of claims and supplements that are required in applicable individual debtor cases.
In order to implement the new rules and forms, there will be additional filing events added in the online case filing/ECF system:
Further information about changes to bankruptcy forms can be found here.
CBA-CLE invites anyone interested in getting more information about the changes to Rules 3001 and 3002.1 to attend a program covering the new rules on November 30, 2011. The presentation will focus on the changes to the forms and rules affecting proofs of claims filed by secured creditors on the principal place of residence of debtors, including the information required in the initial proofs of claims, supplements, the all-important timelines of supplements, and the final cure payment. Registration information is provided below.
|
The United States Bankruptcy Court for the District of Colorado has launched a new Online Creditor Entry page, which allows persons filing cases in the District to create and submit their creditor matrix online using any computer or web enabled device.
The interface enables users to create their creditor matrix in the online system, allowing the information to be quickly and easily accessed by the court when the case is filed, eliminating the need for floppy disks, CDs, DVDs, etc.
The creditor entry system will also format the creditors automatically to ensure compliance with Local Bankruptcy Rule 1007-2APP (Local Bankruptcy Rule 1007-2APP).
Click here for more information and click here to access the new system.
The U.S. Bankruptcy Court for the District of Colorado issued its opinion in Diamond v. Vickery (In re Terry Kenneth Vickery) on Monday, October 17, 2011.
11 U.S.C. §§ 523(a)(2), (a)(4), and (a)(6), and collateral estoppel
Plaintiff judgment creditor’s motion for summary judgment based on issue preclusion was denied. The Court analyzed the preclusive effects of Plaintiff’s two judgments according to the law of the forums in which they were rendered. With respect to the judgment from the federal district court in California, the Court could not determine from the jury verdict that the elements necessary for nondischargeabilty under 11 U.S.C. §§ 523(a)(2), (a)(4), or (a)(6) had been necessarily decided. With respect to the Colorado judgment, issue preclusion did not apply because the judgment was pending on appeal.
Other published Bankruptcy Court opinions can be found here. Unpublished opinions can be found here.
CBA CLE Legal Connection is published by Colorado Bar Association CLE (also known as CLE in Colorado, Inc.). It is focused on delivering timely resources, updates and continuing legal education to … [Read More...]
Solo Tip Tuesday: Move Outlook Emails to Your Hard Drive with Acrobat
This week, I’ve created a video tutorial to demonstrate how to use Adobe Acrobat to move emails out of Microsoft Outlook onto your hard drive. Click here to read more.
CLE Program: Federal Rules Changes on Secured Proof of Claims