Cite as: Keith M. Lundin, Lundin On Chapter 13, § 36.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
Most bankruptcy courts have adopted electronic case filing (ECF) for bankruptcy petitions and other documents in bankruptcy cases. Bankruptcy Rule 5005(a)(2) provides:
A court may by local rule permit or require documents to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A local rule may require filing by electronic means only if reasonable exceptions are allowed. A document filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules, the Federal Rules of Civil Procedure made applicable by these rules, and § 107 of the Code.1
In districts that have adopted ECF rules, counsel should only use forms, including computer software, that comply with the court’s ECF system. Some debtors’ counsel have created their own forms to use with their office word processing equipment. Before creating in-house forms, counsel should consult the Chapter 13 trustee and clerk of court to ensure that the homemade forms will be digestible. Some courts have affirmatively rejected the use of homemade forms.2 The ECF software supplied to courts by the Administrative Office of the United States Courts has to be customized on a district-by-district basis. The computer-generated forms available from publishing and software companies and created by debtors’ counsel are not always compatible with local ECF rules. Counsel is best advised to determine what computer filing software works best in the district before investing in a system.
Many commercial printers sell Chapter 13 forms, although the use of printed forms has been much reduced by ECF. If printed forms are still usable in a district, the available forms are generally very good. There are variations in language and organization, but most substantially conform to the official forms and are acceptable in bankruptcy courts around the country.3 Counsel should beware that material changes to the official forms used in Chapter 13 practice were promulgated in 1991, 1993, 1995, 1997, 2002, 2003, 2005, 2007 and 2008. The revisions made after 2005 have largely been in reaction to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).4 Further revisions are anticipated—especially with respect to Official Form B22C—because translation of BAPCPA into new forms has proved an elusive task.5 Commercial printers and software providers take time to react to changes in the official forms. There are a lot of old forms out there, for sale at printers and stacked up at law offices, that no longer reflect current practice.
Local practice may discourage the use of certain commercially available forms or software and encourage the use of others. Before buying forms or software, counsel should consult with the Chapter 13 trustee and clerk of court.
In some jurisdictions, the Chapter 13 trustee makes Chapter 13 forms available to debtor’s counsel and the public at no charge or at cost. The forms available from the trustee will have been designed for maximum ease of processing by the trustee’s staff and computers. If you have a choice, use the trustee’s forms, especially where there is a recommended form for the Chapter 13 plan.6
There is much local variation among clerks’ offices with regard to which documents are filed to commence and maintain a Chapter 13 case. Often a commercial forms or software packet contains unnecessary documents and is missing others that are required. Again, familiarity with local practice is essential.
1 Fed. R. Bankr. P. 5005(a)(2); 11 U.S.C. § 107 addresses public access to papers filed with the bankruptcy court.
2 See, e.g., In re Orrison, 343 B.R. 906, 908–09 (Bankr. N.D. Ind. 2006) (Custom form for Chapter 13 petition is rejected because it confuses the clerk’s office. Debtor’s attorney condensed the official form from three pages to two and rearranged its contents while providing all of the required information. Court ordered debtors to file amended petition. Counsel responded that the custom form satisfied Bankruptcy Rule 9009. “Although counsel’s in-house version of the petition contains all the information required by the official form, because of the changes counsel has made that information cannot be located and cannot be reviewed as easily and as efficiently as it is on the official form. . . . These changes increase the amount of time the clerk’s office must devote to reviewing counsel’s unique version of the petition by forcing case administrators to hunt for the information they need instead of being able to quickly find it in the expected place. This slows down the administration of cases and places an unnecessary burden on the clerk’s office. . . . Although Rule 9009 allows alterations to the official forms, that does not give parties a free pass to make whatever changes they want whenever they want to do so.”).
3 Bankruptcy Rule 9009 provides that the official forms prescribed by the Judicial Conference of the United States “shall be observed and used with alterations as may be appropriate. Forms may be combined and their contents rearranged to permit economies in their use.”
4 Pub. L. No. 109-8, 119 Stat. 23 (2005).
5 See, e.g., §§ 379.1 [ Form B22C: Statement of Current Monthly Income ] § 36.19 Form 122C-1: Statement of Current Monthly Income–380.1 [ Form B22C: Disposable Income Calculation ] § 36.21 Form 122C-2: Disposable Income Calculation.