Local Rule 3072-1B: Chapter 13 Discharge and Closing Case.

Rule 3072-1B. Chapter 13 Discharge and Closing Case.

(a) Debtor's request for discharge upon completion of plan payments.

(1) Notice of Completion of Plan Payments by the trustee. Within 30 days after the date on which all plan payments, other than payments to holders of allowed claims provided for under 11 U.S.C. § 1322(b)(5), have been completed by the debtor, the trustee shall file a Notice of Completion of Plan Payments and the Clerk shall serve it on parties in interest not electronically served. The Notice of Completion of Plan Payments shall advise the debtor that:

(A) the debtor must timely comply with Bankr. D.S.D. R. 3072-1B(a)(2); and

(B) if the debtor does not timely comply with Bankr. D.S.D. R. 3072-1B(a)(2), the Clerk may administratively close the case without entry of a discharge.

(2) Certification and Request for Discharge by the debtor. Within 30 days after the trustee's filing of a Notice of Completion of Plan Payments, a debtor eligible for a discharge under 11 U.S.C. § 1328(a) shall file a Certification and Request for Discharge that conforms to Appendix 3F. Joint debtors shall prepare and file separate Certifications and Requests for Discharge.

(3) Notice of Certification and Request for Discharge by the Clerk. Upon a debtor's timely compliance with subparagraph (2) above, the Clerk shall serve a Notice of Certification and Request for Discharge on all creditors and other parties in interest not electronically served. The Clerk's notice shall state any party wishing to object to the debtor's discharge shall file an objection or other response to the debtor's Certification and Request for Discharge on or before a stated date not less than 24 days after the date the Clerk's notice was generated.

(b) Debtor's request for discharge before completion of all plan payments (a "hardship" discharge). A debtor seeking a discharge prior to completion of all plan payments shall:

(1) file and serve on all creditors and other parties in interest not electronically served a motion for hardship discharge that:

(A) describes the circumstances for which the debtor should not justly be held accountable that render the debtor unable to complete payments under the plan;

(B) explains why modification of the confirmed plan is not practicable; and

(C) includes, as an attachment, a liquidation analysis showing the value, as of the effective date of the plan, of property actually distributed under the plan on account of each allowed unsecured claim is not less than the amount that would have been paid on such claim if the bankruptcy estate had been liquidated under chapter 7 on such date;

(2) file and serve on all creditors and other parties in interest not electronically served a notice of the motion for hardship discharge that conforms to Bankr. D.S.D. R. 2002-1(a) and Appendix 2A and sets forth a last date (month, day, year) for filing an objection or other response that is 14 days after service of the motion and the notice of motion; and

(3) file a Certification and Request for Discharge that conforms to Appendix 3F but is modified to state all plan payments have not been completed. Joint debtors shall prepare and file separate Certifications and Requests for Discharge.

(c) Entry of discharge. The Court may enter an order of discharge if the debtor has complied with either paragraph (a)(2) or (b) above and:

(1) no party in interest timely files an objection or other response to the debtor's Certification and Request for Discharge;

(2) any timely filed objection or other response to the debtor's Certification and Request for Discharge has been withdrawn or overruled;

(3) the debtor has timely cured any arrearage in plan payments, as ordered by the Court, following a hearing on an objection to the debtor's Certification and Request for Discharge; or

(4) an order granting a hardship discharge has been entered.

(d) Closing the case. A chapter 13 case may be closed by the Clerk after the trustee files a final report and final account and:

(1) an order of discharge is final; or

(2) the debtor has failed, or in a joint case both debtors have failed, to timely comply with subparagraph (a)(2) above.

REFERENCES: 11 U.S.C. §§ 350 and 1328; Fed.Rs.Bankr.P. 4007 and 5009.

Practice Pointers: Each debtor in a joint case must file a Certification and Request for Discharge. It will not be available for viewing on the public docket.

Regarding the notice of a motion for "hardship" discharge in subparagraph (b)(2), if any party is served by mail or under the provisions of Fed.R.Civ.P. 5(b)(2)(D) [leave with clerk] or (F) [other means consented to], the notice period stated for such a motion shall be increased three days pursuant to Fed.R.Bankr.P. 9006(f).