sec 34.2 Bankruptcies On or After October 1, 1979

EXEMPT ASSETS Under Section 522 of the Bankruptcy Code a debtor may claim certain property as being exempt from forced sale for the benefit of its creditors. Therefore, a claim of exemption is a tool by which the debtor may retain property and exclude it from administration by the bankruptcy court. Where the property under examination is claimed as exempt, the abstract being examined should contain, or the examiner should review certified copies of, the following: A. The Petition and Order for Relief. 11 U.S.C. §§ 301, 302 or 303. B. The Schedule of Real Property (Schedule "B-1" for cases filed prior to August 1, 1991, or Schedule "A" for cases filed on or after August 1, 1991) showing that the debtor(s)' interest in the property was disclosed. 11 U.S.C. § 521(1) and Fed. R. Bankr. P. 1007(b) and 4002(3). C. The Schedule of Exempt Property (Schedule "B-4" for cases filed prior to August 1, 1991, or Schedule "C" for cases filed on or after August 1, 1991), showing that the subject property was claimed as exempt by the debtor(s). 11 U.S.C. §§ 522(b) and (l) and Fed. R. Bankr. P. 4003(a). D. The docket sheet indicating whether the claim of exemption was subject to an objection by any party in interest.

NOTE: An objection to the claim of exemption must be filed within thirty days (30) days of the conclusion of the meeting of creditors held pursuant to 11 U.S.C. § 341 and Fed. R. Bankr. P. 2003(a). Fed. R. Rankr. P. 4003(b). 1. If the docket sheet indicates that no objection was timely filed, the property is deemed exempt. 11 U.S.C. § 522(l) and Taylor v. Freeland & Kronz, 503 U.S. 638 (1992). 2. If the docket sheet indicates that an objection was timely filed, the examiner should review a copy of the bankruptcy court's order disposing of the objection. E. Judgment Liens in Bankruptcy. 1. Judgment liens perfected before November 1, 1997, do not attach to homestead property and do not constitute a lien against such property. 12 O.S. § 706; Gerlach Bank v. Allen, 51 Okla. 736, 152 P. 399 (1915) and Finerty v. First Nat. Bank, 92 Okl. 102, 218 P. 859 (1923).

(2) Judgment liens perfected on or after November 1, 1997, attasch to homestead property and constitute a lien against such property. 12 O.S. § 706. 3. When a lien does not attach to real property, there is no need for avoidance proceedings. David Dorsey Distrib., Inc. v. Sanders (In re Sanders), 39 F.3d 258, 262 (10th Cir. 1994).

(4) Any liens or charges that were properly perfected prior to the instigation of bankruptcy proceedings will survive those proceedings unless specifically avoided pursuant to 11 U.S.C. § 522(f) and Fed. R. Bankr. P. 4003(d). 11 U.S.C. §§ 522(c) and (f); Long v. Bullard, 117 U.S. 617, 6 S.Ct. 917, 29 L.Ed. 1004 (1886); Johnson v. Home State Bank, 111 S.Ct. 2150 (1991); Farrey v. Sanderfoot, 111 S.Ct. 1825 (1991); and Owen v. Owen, 111 S.Ct. 1833 (1991).

Comment: Except as provided in 11 U.S.C. 552(b) property acquired after commencement of the case is not subject to a pre-petition judgment lien. 5. For the title to real property passing through bankruptcy proceedings to be free and clear of a pre-petition judgment lien, the abstract being examined should contain, or the examiner should review certified copies of, the motion requesting that the lien be avoided pursuant to 11 U.S.C. § 522(f) and Fed. R. Bankr. P. 4003(d) and the order granting said motion. Id. and Coats v. Ogg (In re: Ogg), 1999 WL 218774, BAP No. EO-98-028 (10 th Cir. 1999).

Comment: BKR 4003(d) provides that a proceeding to avoid a lien under 11 U.S.C. § 522(f) is by motion pursuant to Rule 9014 Fed. R. Bankr. P., which provides at (b) that service shall be as in service of summons pursuant to Rule 7004(h) Fed. R. Bankr. P., which provides for service on an Insured Depository Institution.

ABANDONMENT Abandonment of an asset can take place at any time during the pendency of the bankruptcy proceedings. The procedure can be initiated by a debtor-in- possession or case trustee via the filing a notice of abandonment with the bankruptcy court and the service of a copy of the notice on each of the parties in interest in the case. Abandonment is also a creditor's remedy. Any creditor holding an interest in the subject property has the right to file a motion with the bankruptcy court requesting that its collateral be abandoned from the estate. Once its collateral is abandoned from the estate, and the automatic stay imposed by 11 U.S.C. § 362 is lifted, the creditor is free to pursue any of the remedies available to it in accordance with applicable law. Where the property under examination is abandoned from the bankruptcy estate, the abstract being examined should contain, or the examiner should review certified copies of, the following: A. The Petition and Order for Relief. 11 U.S.C. §§ 301, 302 or 303.

(B) The Schedule of Real Property (Schedule "B-1" for cases filed prior to August 1, 1991, or Schedule "A" for cases filed on or after August 1, 1991) showing that the debtor(s)' interest in the property was disclosed. 11 U.S.C. § 521(a)(1) and Fed.R.Bankr.P. 1007(b) & 4002(a)(3).

(C) If a trustee has been appointed in the case, evidence of the qualification of the case trustee to serve in that capacity. Such evidence shall consist of either:

(1) Evidence that the trustee has filed with the bankruptcy court a bond in favor of the United States conditioned on the faithful performance of the trustee's official duties and transmitted notice of the acceptance of the office to the court and to the United States trustee within seven (7) days of receipt of the notice of selection. 11 U.S.C. § 322(a) and Fed.R.Bankr.P. 2008; or

(2) If the trustee has filed a blanket bond pursuant to Fed.R.Bankr.P. 2010, evidence that the trustee did not reject the appointment within seven (7) days of receipt of notice of the appointment. 11 U.S.C. § 322(a) and Fed.R.Bankr.P. 2008; or

(D) If no trustee has been appointed in the case, evidence of that fact.

NOTE: The elements indicated above regarding the qualification of a trustee to act in a particular case may be conclusively evidenced through a certificate from the clerk of the bankruptcy court in which the proceedings are pending certifying that either: 1) the debtor is acting as a debtor-in-possession, and thus retains the powers, duties and obligations of a trustee, or 2) that a trustee has qualified. Fed. R. Bankr. P. 2011 (a).

(E) If the property was affirmatively abandoned by either the case trustee or a debtor-in-possession: 1. The notice of intent to abandon required by Fed.R.Bankr.P. 6007(a).

NOTE: The notice of intent to abandon property of the estate may be contained within the notice of the meeting of creditors (the "341 meeting") which is mailed to each party in the case at the outset of the proceedings. If the court file contains an order of abandonment, but no pleading specifically labeled as being a notice of abandonment, the examiner should review the notice of meeting of creditors to determine if it contains a general notice of the trustee's ability to abandon property at the 341 meeting. 2. Evidence that there was no objection to the notice of abandonment filed within fourteen 14 days of the date of mailing of the notice. Fed.R.Bankr.P. 6007(a) and 9006(f);or 3. The bankruptcy court's order abandoning the property.

(F) If the abandonment is by virtue of a motion filed by a creditor having an interest in the subject property:

(1) The motion filed pursuant to 11 U.S.C. § 554(b) and Fed.R.Bankr.P. 6007(b) requesting that the subject property be abandoned from the estate;

(2) The bankruptcy court's order ruling on the motion.

(G) If the subject property is disclosed on the schedule of real property filed in conjunction with the Petition, but is not otherwise disposed of during the pendency of the bankruptcy proceedings, it is deemed abandoned to the debtor upon the closing of the case. 11 U.S.C. § 554(c). In that event, the examiner should review the order discharging the trustee, if one has been appointed, and closing the estate. Fed.R.Bankr.P. 5009 and 11 U.S.C. § 350(a).

NOTE: If the subject property is not disclosed on the schedule of real property filed in conjunction with the Petition, it remains unadministered property of the estate upon the closing of the case. 11 U.S.C. § 554(d). In that event, the examiner should require that the bankruptcy proceedings be re-opened in accordance with 11 U.S.C. § 350(b) so that the property can be scheduled and administered by the bankruptcy court. SALES Sales of realty held by a bankruptcy estate are governed by Section 363 of the Bankruptcy Code and Rules 2002 and 6004 of the Federal Rules of Bankruptcy Procedure. In the event a bankruptcy trustee is selling an interest in realty that is subject to an ownership interest by someone that is not a debtor, the sale may be conducted only after the successful prosecution of an adversary proceeding within the bankruptcy case. See, Fed.R.Bankr.P. 7001(3). In the event an examiner encounters such a situation, the entire adversary proceedings should be reviewed. Where the property under examination is sold by a bankruptcy trustee or a debtor-in-possession (other than in the ordinary course of business), the abstract being examined should contain, or the examiner should review certified copies of, the following:

(A) The Petition and Order for Relief. 11 U.S.C. §§ 301, 302 or 303.

(B) The Schedule of Real Property (Schedule "B-l" for cases filed prior to August 1, 1991, or Schedule "A" for cases filed on or after August 1, 1991)(1) showing that the debtor(s)' interest in the property was disclosed. 11 U.S.C. § 521(a)(1) and Fed.R.Bankr.P. 1007(b) & 4002(a)(3).

(C) If a trustee has been appointed in the case, evidence of the qualification of the case trustee to serve in that capacity. Such evidence shall consist of either:

(1) Evidence that the trustee has filed with the bankruptcy court a bond in favor of the United States conditioned on the faithful performance of the trustee's official duties and transmitted notice of the acceptance of the office to the court and to the United States trustee within seven (7) days of receipt of the notice of selection. 11 U.S.C. § 322(a) and Fed.R.Bankr.P. 2008; or

(2) If the trustee has filed a blanket bond pursuant to Fed.R.Bankr.P. 2010, evidence that the trustee did not reject the appointment pursuant to Fed.R.Bankr.P. 2008; or

(D) If no trustee has been appointed in the case, evidence of that fact.

NOTE: The elements indicated above regarding the qualification of a trustee to act in a particular case may be conclusively evidenced through a certificate from the clerk of the bankruptcy court in which the proceedings are pending certifying that either: 1) the debtor is acting as a debtor-in-possession, and thus retains the powers, duties and obligations of a trustee, or 2) that a trustee has qualified. Fed. R. Bankr. P. 2011(a). E. Evidence that the debtor, the trustee, all creditors and indenture trustees, any committees formed pursuant to Sections 705 or 1102 and the United States trustee received at least twenty-one (21) days notice of the proposed sale. Fed.R.Bankr.P. 2002(a)(2), (i) and (k).

(F) Evidence that the notice of sale served upon each of the parties delineated above contained at least the following information regarding the transaction:

(1) Either

(a) The time and place of any public sale; or

(b) The terms and conditions of any private sale;

(2) The time fixed for filing objections to the proposed sale; and

(3) A description of the property being sold. Fed.R.Bankr.P. 2002(c)(l).

(G) Evidence that either:

(1) No objection to the proposed sale was filed and served more than five (5) days before the date set for the proposed action or within the time fixed by the court. Fed.R.Bankr.P. 6004(b); or

(2) If an objection was filed, the order of the bankruptcy court disposing of the objection.

(H) A properly executed conveyance from either:

(1) The debtor-in-possession; or

(2) The duly appointed and acting trustee in his capacity as trustee of the bankruptcy estate. Fed.R.Bankr.P. 6004(f)(2). SALES FREE AND CLEAR OF LIENS Section 363(f) of the Bankruptcy Code allows a movant to conduct a sale of estate property free and clear of certain specified interests that may encumber the interest being sold. In a chapter 12 case, that authority is supplemented by Section 1206. If a sale free and clear of interests is encountered, in addition to the materials indicated in the immediately preceding section, the abstract being examined should contain, or the examiner should review certified copies of, the following:

(A) The notice of sale discussed in TES 34.2.C. Sales E. and F. should also contain the date of the hearing on the motion and the time within which objections may be filed and served on the debtor-in-possession or trustee. Fed.R.Bankr.P. 6004(c).

(B) Evidence that the motion filed with the bankruptcy court requesting that the subject property be sold pursuant to Section 363(f) was properly served on the parties who held liens or other interests in the property to be sold. Fed.R.Bankr.P. 6004(c).

(C) The order of the bankruptcy court disposing of the motion. TRANSFERS PURSUANT TO A CONFIRMED CHAPTER 11 PLAN In the Chapter 11 context transfers of interests that are part of the bankruptcy estate may be effectuated through the provisions of a confirmed Chapter 11 plan of reorganization. Where the property under examination is transferred through the terms of a confirmed plan of reorganization, the abstract being examined should contain, or the examiner should review certified copies of, the following:

(A) The Plan and court approved Disclosure Statement

(1) The Plan and Disclosure Statement are filed concurrently. Fed.R.Bankr.P. 3016(b).

(B) Approval of the Disclosure Statement

(1) When the Plan and Disclosure Statement are filed, in accordance with Fed.R.Bankr.P. 2002(b) a hearing for approval of the Disclosure Statement should be set on not less than twenty-eight (28) days notice. Fed.R.Bankr.P. 3017(a).

(2) Notice of the hearing must be served on: a. the debtor; b. the trustee; c. the creditors and indenture trustees; d. any equity security holders; e. the United States Trustee; and f. all other parties in interest, including: i. any committees appointed pursuant to 11 U.S.C. §§ 1102 and 1114; ii. the S.E.C. [Fed.R.Bankr.P. 2002(j)(1)]; iii. the I.R.S. [Fed.R.Bankr.P. 2002(j)(3)]; iv. the U.S. Attorney [Fed.R.Bankr.P. 2002(j)(4)]; v. the department, agency, or instrumentality of the U.S. through which the debtor became indebted to the U.S. Id.; and vi. the Secretary of the Treasury. {Fed.R.Bankr.P. 2002(j)(5).

(3) Copies of the Plan and Disclosure Statement only need to be served on: a. the debtor; b. any trustee or committee that has been appointed; c. the S.E.C.; and d. any party that has filed an Entry of Appearance. Fed.R.Bankr.P. 3017(a).

(4) Following the hearing, the Court shall determine whether the Disclosure Statement should be approved. Fed.R.Bankr.P. 3017(b).

(5) If the Disclosure Statement is approved, the Court shall fix a time within which: a. the holders of claims and interests may accept or reject the plan; and, b. fix a date for the confirmation hearing. Fed.R.Bankr.P. 3017(c).

(6) When the Disclosure Statement is approved, the Debtor must mail: a. a copy of the plan, or a court approved summary; b. a copy of the approved Disclosure Statement; c. a ballot; d. notice of the time established to file acceptances to, or rejections of, the plan and of the confirmation hearing; e. a copy of the order approving the Disclosure Statement; and f. such other information as required by the Court to:

(i) all creditors; ii. all equity security holders; and iii. the U.S. Trustee. Fed.R.Bankr.P. 3017(d).

(C) Confirmation of the Plan

(1) Notice of the confirmation hearing and the time fixed for filing objections to the plan and a ballot must be mailed to: a. all creditors; b. all equity security holders. Fed.R.Bankr.P. 3017(d).

(2) An acceptance or rejection of the Plan must: a. be in writing; b. identify the plan or plans accepted or rejected; c. be signed by the creditor or equity security holder, or an authorized agent; and d. conform to the Official Form. Fed.R.Bankr.P. 3018(c).

(3) Objections must be filed and served on the plan proponent within the time fixed by the Court. Fed.R.Bankr.P. 3020(b)(l).

(4) An objection to confirmation is governed by Fed.R.Bankr.P. 9014. Id.

(5) The Court shall rule on confirmation of the Plan after notice and hearing as provided by Fed.R.Bankr.P. 2002(b). Fed.R.Bankr.P. 3020(b)(2).

(6) If no objection is filed, the Court may rule that the Plan has been proposed in good faith and not by any means forbidden by law without receiving evidence on such issues. Id.

NOTE: Prior to the entry of an order confirming the Plan, the Court may order the debtor to deposit with the trustee or debtor-in-possession all consideration required to be paid on confirmation. If the Court so orders, those funds must be placed in a special account established for the exclusive purpose of making the distribution. Fed. R. Bankr. P. 3020(a).

(D) The Confirmation Order 1. Must conform to the Official Form. Fed.R.Bankr.P. 3020(c). 2. Notice of entry thereof must be mailed to: a. the debtor; b. the trustee; c. all creditors; d. all equity security holders; e. the U.S. Trustee; and, f. all other parties in interest. Fed.R.Bankr.P. 3020(c).

(E) Post-Confirmation Matters 1. Distributions Under the Plan a. After confirmation of the Plan, distribution shall be made to creditors whose claims have been allowed. Fed.R.Bankr.P. 3021. b. After the estate is fully administered, the court, on motion of a party in interest, shall enter a final decree closing the case. Fed.R.Bankr.P. 3022.