Local Rule 2083-1: CHAPTER 13 – GENERAL — Bankr. D. Utah

RULE 2083-1 CHAPTER 13 – GENERAL

(a) Chapter 13 Plan. Unless otherwise ordered by the court, all chapter 13 plans shall conform to the Official Form 113 Chapter 13 Plan posted on the bankruptcy court's website (www.utb.uscourts.gov) (see Local Rule 2083-2).

(b) Preconfirmation Plan Amendments or Modifications.

(i) Plan amendments having a material negative impact on creditors. In addition to filing the amended plan, the debtor must prepare a Notice of Amended Plan in substantial conformity with Local Form 2083-1-A that contains a summary of the changes between the prior plan and the amended plan. The amended plan along with the Notice of Amended Plan must be filed and served on the trustee and all parties in interest in compliance with Fed. R. Bankr. P. 3015(d) and 2002(a)(5).

(ii) Plan modifications not having a material negative impact on creditors. The debtor must prepare a Notice of Modified Plan in substantial conformity with Local Form 2083-1-B that contains a summary of the changes between the prior plan and the modified plan. The Notice of Modified Plan must be filed and served upon the trustee.

(iii) Final Plan. Any party in interest, including the court or the trustee, may request that the debtor file a Final Plan that incorporates all prior plan amendments, modifications, and stipulations. Unless otherwise ordered by the court, the debtor shall file a Final Plan no later than 14 days following such request.

(c) Chapter 13 Plan Payments. Unless otherwise ordered by the court, payments under § 1326 must commence not later than the first date set for the § 341 Meeting. All such payments must be made by certified funds, money order, or a trustee-approved means of electronic funds transfer, made payable as directed by the trustee.

(d) Preconfirmation Payments Pursuant to § 1326(a).

(1) Distribution in Preconfirmation Cases. Preconfirmation disbursements by the trustee under § 1326(a)(1) are hereby authorized without further order. The amount and timing of Adequate Protection Payments, unless otherwise ordered by the court, shall be governed by subparagraphs (2) through (8) below. Preconfirmation disbursements under § 1326(a)(1) shall be made to creditors within 30 days of the filing of the proof of claim, unless the trustee has not received sufficient cleared funds to make such payment. The trustee is authorized to deduct from the allowed amount of a claim all § 1326(a)(1) preconfirmation disbursements.

(2) Adequate Protection Payments. Unless otherwise ordered by the court, all preconfirmation Adequate Protection Payments to holders of secured claims required under § 1326(a)(1)(C) shall not be made by the debtor directly to the secured claimant, but shall be paid to and disbursed by the trustee. The debtor's preconfirmation plan payments to the trustee shall include the amount required under § 1326(a)(1), which shall include the amount necessary to pay the trustee's statutory fee.

(3) Amount and Period of Adequate Protection Payments. Unless the debtor files a separate Notice for Adequate Protection Payments (Local Form 2083-1-C) or includes the Notice for Adequate Protection Payments as an attachment to the Plan, the Equal Monthly Plan Payment amount listed in Part 3.2 or 3.3 of the Plan for a creditor entitled to adequate protection under § 1326(a)(1)(C) and § 1325(a)(5)(B)(iii)(II) will constitute that creditor's Adequate Protection Payment amount. The Notice for Adequate Protection Payments must fix the amount and period of the Adequate Protection Payments.

(4) Adequate Protection Payments as a Nonstandard Plan Provision. A plan proposing to pay Adequate Protection Payments in an amount less than the Equal Monthly Plan Payment shall be deemed to contain a nonstandard provision and must indicate the inclusion of a nonstandard provision in the check box in Part 1.3 of the Plan. Part 8 of the plan must identify the creditor(s) who will receive Adequate Protection Payments and the corresponding part of the plan in which such creditor(s) is listed. Part 8 of the plan must also refer creditors to the Notice for Adequate Protection Payments for detail concerning the amount and duration of Adequate Protection Payments.

(5) Adequate Protection Payments Accrual. Adequate Protection Payments shall accrue commencing with the first plan payment due no later than the first date set for the § 341 Meeting and shall continue to accrue on the first day of each month thereafter for the number of months specified in the Notice of Adequate Protection Payments. Upon expiration of the number of months specified in the Notice for Adequate Protection Payments, each secured creditor will be paid the Equal Monthly Plan Payment set forth in the plan.

(6) Trustee's Payment of Adequate Protection Payments. The trustee will make Adequate Protection Payments only if a secured proof of claim is filed in compliance with the applicable provisions of Fed. R. Bankr. P. 3001, 3002 and 3004 before the earlier of the entry of an order dismissing or converting a case or the applicable claims bar date. If no secured proof of claim is filed, the trustee may reserve funds to pay Adequate Protection Payments to a creditor identified as a recipient of Adequate Protection Payments in anticipation of a claim being filed.

(7) Principal Reduction Prior to Interest Accrual. Adequate Protection Payments made or attributable to the period before interest begins to accrue on such claims shall be applied to reduce the principal balance of such claim. Adequate Protection Payments made or attributable to the period after interest begins to accrue shall be applied to unpaid interest and then to principal.

(8) Amended Notice for Adequate Protection Payments. If an amended Notice for Adequate Protection Payments is filed that decreases the amount of Adequate Protection Payment, the change in amount will be effective with the next accrual date. If an amended Notice for Adequate Protection Payments is filed that increases the amount of Adequate Protection Payment, the change will be retroactive to the date of the first payment accrual and the difference will be disbursed to the secured creditor by the trustee as sufficient funds are available to make such payment.

(9) Distribution in Discontinued Preconfirmation Cases.

(A) If a chapter 13 case is dismissed prior to confirmation, the trustee is authorized to apply the debtor's plan payments to pay: (i) the trustee's statutory percentage fee; (ii) Adequate Protection Payments pursuant to the terms set forth in subsections (2) – (8) above; (iii) any allowed administrative expenses; and (iv) the balance of such funds will be returned to the debtor by check made payable to and mailed to the debtor at the debtor's address of record listed on the court's docket.

(B) If prior to confirmation a chapter 13 case is converted to a case under chapter 7, unless otherwise ordered by the court, the trustee must return any undisbursed funds constituting debtor's wages held by the trustee to the debtor by check made payable to and mailed to the debtor at the debtor's address of record listed on the court's docket.

(e) Documents Provided to the Trustee at or Before the § 341 Meeting.

(1) In addition to those documents required by § 521, a debtor must provide to the case trustee copies of the following documents at least 7 days before the first date set for the § 341 Meeting:

(A) Proof of all charitable contributions made within 60 days before the date of the filing of the petition;

(B) A copy of the county property tax assessment for all real property listed on Schedule A for each of the two most recent years;

(D) Evidence of current post-petition income such as the most recent pay advice; and

(E) Statements for each of the debtor's checking, savings, brokerage, money market accounts and mutual funds, and app-based financial accounts (such as Venmo, CashApp, and Paypal) for the one-month period that includes the petition date.

(2) In addition to the foregoing, if a debtor had self-employment income or operated a business for the 60 days prior to the filing, the debtor must provide to the case trustee copies of the following documents at least 14 days before the first date set for the § 341 Meeting:

(A) A profit and loss for each business or self-employment for the 60 days prior to the filing of the petition, including income reported on an IRS Form 1099; and

(B) A business questionnaire for each business operated by the debtor for the 60 days prior to filing of the petition, on a form supplied by the case trustee.

(f) Dismissal for Failure to Attend a § 341 Meeting or Make Payment. If the debtor or the debtor's attorney fails to appear at the scheduled or continued § 341 Meeting or if a debtor fails to make the first payment required by subsection (c) of this rule, the trustee must file a motion to dismiss or notice of failure to comply and serve it on the debtor and debtor's attorney. If an objection is not filed within 21 days after the motion or notice is served, the clerk must enter an order dismissing the case. If a motion to dismiss for failure to attend a § 341 Meeting is filed, any objection thereto must include a request to reschedule both the § 341 Meeting and the confirmation hearing. In the absence of good cause alleged in the objection and established at the hearing, the debtor must also agree to an extension of all deadlines calculated from the first date set for the § 341 Meeting, including deadlines for objecting to claimed exemptions under Fed. R. Bankr. P. 4003(b), and for filing complaints objecting to discharge or dischargeability under Fed. R. Bankr. P. 4004(a) and 4007(c). If a hearing is required on an objection filed under this subsection, it will be held at the same time scheduled for the confirmation hearing stated on Official Form 309I. No notice of the objection in addition to the notice of hearing contained on Official Form 309I is required.

(g) Preconfirmation Motions to Dismiss for Failure to File or Provide Documents or Comply with Other Requirements. In addition to cause for dismissal under § 1307(c), the trustee, with respect to all subparts of § 1307(c), or the applicable taxing authority, with respect to subpart (5), may file a motion to dismiss or notice of failure to comply for the following grounds:

(1) Failure to file documents required under Local Rule 1007-1(a)(2);

(2) Failure to provide identification and social security documentation under Fed. R. Bankr. P. 4002(b)(1) or financial documents under Fed. R. Bankr. P. 4002(b)(2);

(3) Failure to provide documents under subsection (e) of this rule;

(4) Failure to provide information in response to a written request by a trustee or United States trustee under Local Rule 4002-1(b); or

(5) Failure to provide proof of establishment of tax trust accounts under Local Rule 6070-1(a)(1), or failure to comply with requirements with respect to tax returns under Local Rule 6070-1(c). The motion to dismiss or notice of failure to comply must be served on the debtor and the debtor's attorney. If the debtor intends to oppose dismissal, a written objection must be filed. If an objection is not filed within 21 days after the motion or notice is served, the clerk must enter an order dismissing the case. If an objection contains a request to reschedule the § 341 Meeting, the time limitation set forth in Local Rule 2003-1(c) shall not apply. Such request, however, must seek an extension of the deadlines set forth in subparagraph (f) above. If the trustee files a motion to dismiss for failure to comply with (1) or (3) of this subparagraph (g), the trustee will call and preside at the § 341 Meeting to permit creditors to question the debtor, but the trustee will not question the debtor and the § 341 Meeting shall be adjourned until after the hearing on the motion to dismiss has been held, unless prior to the § 341 Meeting the debtor resolves the deficiencies resulting in the motion to dismiss and the court enters an order authorizing the trustee to conduct the scheduled § 341 Meeting. A hearing on an objection filed in response to the trustee's notice of failure to provide documents or comply will be held at the same time scheduled for the confirmation hearing stated on Official Form 309I, unless the court orders otherwise. No notice of the objection in addition to the notice of hearing contained on Official Form 309I is required.

(h) Postpetition Child Support, Alimony, Maintenance Payments Deemed Voluntary. Unless a chapter 13 debtor on the petition date, or such later time as the court allows, files with the court, the trustee, and the requisite state office of recovery services a notice setting forth the debtor's intent to terminate postpetition child support, alimony, maintenance payments or income withholding, the debtor will be deemed as of the date of the petition to have stipulated as follows:

(1) That any child support, alimony, or maintenance obligation that matures postpetition, whether continuing or delinquent and whether paid directly by the debtor or collected by means of income withholding under state law, is voluntarily made by the debtor under the debtor's budget of postpetition expenses; and

(2) That any collection of such obligations will not constitute grounds for compensatory, injunctive, or punitive relief against the collecting party for any violation of the provisions of § 362 of the Code. This rule does not apply to any child support, alimony, or maintenance obligation that matures and becomes delinquent postpetition and that the debtor and a state office of recovery services have agreed in writing will be treated as a prepetition obligation included in the debtor's plan.

(i) Eligibility Hearing. Unless the Court orders otherwise, (i) a party must file and serve a motion to dismiss a chapter 13 case under § 109(e) not later than 7 days before the date set on the Notice of Chapter 13 Bankruptcy Case for the plan confirmation hearing; and (ii) such motion shall be heard at the plan confirmation hearing.

(j) Confirmation.

(1) Objections to Confirmation. Any objection to the original plan must be filed and served not later than 7 days before the date set on Official Form 309I for the plan confirmation hearing. If an amended or modified plan is filed, objections must be filed and served not later than 21 days after service of the plan or notice of such plan. If a creditor files an objection to confirmation relating to the value of collateral, the debtor must respond to that objection within 30 days of service of the objection. All objections to the plan will be heard at the confirmation hearing, unless the court orders otherwise. If the objecting party does not appear at the confirmation hearing, the court may deem the objection to be withdrawn.

(2) Confirmation of the Plan. The debtor bears the burden of proof in establishing compliance with the requirements for confirmation of the debtor's plan, and specifically § 1325. Any bankruptcy papers or amendments relating to confirmation of the plan must be filed with the court not later than four (4) business days before the confirmation hearing. In addition, documents, papers, or other information relating to confirmation of the plan which are required to be submitted to the trustee must be received by the trustee not later than four (4) business days before the confirmation hearing. If bankruptcy papers need to be filed or submitted to the trustee after these deadlines, counsel should seek a continuance of the confirmation hearing to give all parties an opportunity to review the papers. If the court confirms the plan, the debtor will be deemed to be in compliance with § 521(a)(1)(A).

(3) Confirmation Without a Hearing. If all timely filed objections to confirmation are resolved, the trustee may recommend to the court that the plan be confirmed without a hearing. If the court agrees, the confirmation hearing may be stricken, an order confirming the plan may be entered, and debtors and debtors' counsel need not appear at the confirmation hearing.

(4) Evidentiary Hearings on Confirmation. If parties intend to put on evidence relating to confirmation of a plan, they should inform the court, the trustee, and any objecting party of such intent and request from the court a separate, evidentiary confirmation hearing.

(k) Postconfirmation Motions.

(1) Trustee's Motion to Dismiss. The trustee's postconfirmation motion to dismiss or notice of failure to comply must be served on the debtor and the debtor's attorney. By the objection deadline set in the trustee's motion to dismiss, which must be at least twenty-one (21) days after the motion or notice is served, the debtor must take all of the following actions or the clerk shall enter an order dismissing the case: (1) file an objection to the motion or notice; (2) set the objection for a hearing; and (3) serve notice of the hearing on the trustee. Responses must be filed and served within 14 days after notice of the hearing is served pursuant to Local Rule 9006-1(b)(3).

(2) Debtor's Motion to Reduce Equal Monthly Plan Payment to Adequate Protection Payment Amount.

(A) If the debtor moves to modify a plan under § 1329 to seek a reduction of a secured creditor's Equal Monthly Plan Payment while paying administrative expenses allowed under § 330, a Notice of Postconfirmation Reduction of Equal Monthly Plan Payment (Local Form 2083-1-D) must be filed and served on the affected creditor(s).

(B) The Notice of Postconfirmation Reduction of Equal Monthly Plan Payment shall fix the amount and number of payments during the period of payment of allowed administrative expenses under § 330. The reduced Equal Monthly Plan Payment amount shall accrue on the first day of the month following entry of the order approving the reduction in Equal Monthly Plan Payment.

(C) The deadline to object to a Notice of Postconfirmation Reduction of Equal Monthly Plan Payment shall be governed by the Fed. R. Bankr. P. 3015(h) and Local Rule 2083-1(j)(1).

(l) Claims Review and Trustee's Report of Claims. Not later than 60 days following expiration of the governmental claims bar date, debtor shall file and serve a declaration that all claims have been reviewed and that any appropriate objections have been filed and served. Not later than 60 days following the filing of debtor's claims review declaration or 30 days following entry of an order confirming the plan, whichever is later, the trustee shall file and serve on all parties in interest a Trustee's Report of Claims ("TROC") that lists all claims and how they are treated under the plan. Any objection to the TROC must be filed within 21 days after service of the TROC. If there are no timely objections, the TROC will be deemed incorporated into the confirmation order and will be binding on parties. If a timely objection is filed, the objecting party shall forthwith set and notice the matter for a hearing.

(m) Request for Discharge. As soon as practicable after the completion of all payments under the plan, the trustee must file with the court and serve upon the debtor and debtor's counsel a Notice of Completion of Plan Payments. If debtor's counsel asserts unpaid fees or costs in a case, counsel must within 21 days of after service of the Notice of Completion of Plan Payments take the following actions: (1) file an objection to the Notice of Completion of Plan Payments, (2) file an appropriate application for allowance of such fees and costs, and (3) serve a notice of hearing on such application. Failure to timely comply with any of these requirements will result in a waiver of all such fees. Within 60 days after service of the Notice of Completion of Plan Payments, the debtor must file and serve a Verification and Request for Discharge in the form attached as Local Form 2083-1 on parties entitled to ECF notice, any party requesting notice, and any holder of a domestic support obligation. If no written objection to the Verification and Request for Discharge is filed within 21 days after service thereof, the court may enter a discharge pursuant to § 1328(a) without further notice or hearing. Failure to follow the provisions set forth in this rule may result in the Court's closure of the debtor's bankruptcy case without the entry of a discharge.

(n) Incurring Unsecured Debt or Debt Secured by Personal Property in a Chapter 13 Case.

(1) The debtor may incur during the case unsecured consumer debt (i) up to an aggregate of $1,500 in a one-time credit or (ii) $1,000 in revolving credit with a balance owing never greater than $1,000, without written approval of the trustee or an order of the Court. The debtor may only incur consumer debt secured by personal property, regardless of the amount of debt, with approval of the trustee and/or an order of the Court as described hereafter. Any request to incur debt which requires a plan modification cannot be accomplished through this rule, unless otherwise ordered by the Court.

(2) The debtor may incur consumer debt of the kind and in an amount greater than those specified in paragraph (1) only by either: (i) submitting to the trustee a request by written application, as described in paragraphs (3) and (4) below, and obtaining the trustee's approval evidenced by an appropriate stipulated/agreed order filed on the Court's docket, or (ii) if the trustee denies the written request, or the debtor otherwise so desires, filing with the Court a motion containing the information described in paragraphs (3) and (4) below and obtaining an order approving such motion.

(3) The trustee will provide on the trustee's website a prominently featured request form which must be used to request approval to incur consumer debt as set forth herein. Completed request forms must be mailed, emailed, or uploaded to the trustee. Simultaneously, the debtor must complete and file a Notice of Request to Incur Debt in a Chapter 13 Case with the Court using the applicable ECF event. Unrepresented debtors may obtain a Notice of Request to Incur Debt in Chapter 13 Case form on the Court's website which must be completed and filed with the Court.

(4) In the exercise of the trustee's discretion, the trustee may approve or disapprove any request to incur secured or unsecured consumer debt as contemplated by this rule. The following conditions must at a minimum be satisfied with the request: (i) submission to the trustee of a fully completed request form described in paragraph (3) above; (ii) the debtor must be current on plan payments; (iii) the debtor must have provided to the trustee evidence of income for the most recent 60 days (pay advices or profit and loss statements) and, if the debtor is self-employed, corresponding bank statements evidencing the income shown; (iv) the debtor must not be in material default under any term of a confirmed chapter 13 plan; (v) proposed amended schedules I and J must be provided to the trustee with the request and final amended schedules I and J must be filed with the Court no later than fourteen (14) days following entry of the order approving the request; and (vi) submission to the trustee any other information which the trustee deems necessary to consider the request.

(5) Approval of the request to incur consumer debt shall be evidenced by filing of a stipulated/agreed order which shall be prepared and filed by the trustee no later than seven (7) business days after the debtor places a Notice of Request to Incur Debt in Chapter 13 Case on the Court docket; provided, however, by agreement of the parties the seven (7) day period may be extended dependent upon the circumstances of the request and additional information required by the trustee to evaluate the request. No request to incur debt will be considered approved without the entry of an order on the Court's docket. The stipulated/agreed order must be endorsed by debtor's counsel prior to entry of the order by the Court. If trustee denies the request, the denial shall be entered on the Court docket by the trustee no later than seven (7) business days, or such later time as agreed to by the parties, after the debtor files a Notice of Request to Incur Debt in a Chapter 13 Case on the Court docket. The debtor may then file a motion to incur such consumer debt, which motion shall include at a minimum the information required by the request form referenced in paragraph (3) above. Nothing in this rule shall preclude the debtor from filing a motion for approval to incur consumer debt with the Court without requesting approval from the trustee.

(6) If the debtor seeks approval to incur consumer debt secured by personal property and all or a portion of the purchase price consists of a trade-in of collateral which is encumbered, a motion for approval to incur such debt must be filed with the Court on notice and a hearing.

(7) If the debtor seeks approval to incur consumer debt secured by personal property and all or a portion of the purchase price consists of a trade-in of collateral which is unencumbered, the trustee may approve such debt through the procedures set forth in paragraphs (4) and (5) above. Depending on the value of the trade-in collateral, the trustee may request debtor to file an amended schedule B and may seek a modification of the plan. In no event shall the trustee's approval of the request to incur debt prejudice the trustee's filing a motion to modify the plan in conjunction with the approval or at a future date.

(8) The debtor shall provide the final transaction agreement or documentation to the trustee within three (3) days of closing of the transaction. If the transaction documentation differs materially from the information provided to the trustee in the request form, the trustee may file a motion to dismiss the debtor's case.

(9) Attorneys' fees in an amount not greater than $700 shall be allowed as part of the trustee approval process. Attorneys' fees requested in an amount greater than $700 must be sought by separate application filed with the Court.

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