Cite as: Keith M. Lundin, Lundin On Chapter 13, § 37.4, at ¶ ____, LundinOnChapter13.com (last visited __________).
Bankruptcy Rule 1007(a) requires that the Chapter 13 petition be accompanied by a list of creditors or completed schedules of liabilities (Schedules D, E, F, G and H to Official Bankruptcy Form 6). If debtor’s counsel elects to file the list of creditors,1 the schedules (Official Bankruptcy Form 6)2 and the Statement of Financial Affairs (Official Bankruptcy Form 7)3 must be filed within 15 days of the petition. Any extension of the 15-day time period must be sought by motion “for cause shown and on notice.”4 Filing these schedules and the Statement of Financial Affairs are statutory duties of the debtor required by 11 U.S.C. § 521(a)(1). After the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA),5 the failure to file documents required by § 521(a)(1) can have serious consequences—including “automatic dismissal” when the failure to file is not cured within 45 days of the petition.6
All other documents required to be filed under Bankruptcy Rule 1007(b)(1), (4), (5) and (6)—payment advices,7 record of interest in education IRA8 and statement of current monthly income and disposable income9—must be filed with the petition or within 15 days thereafter, subject to the same conditions for obtaining an extension.10 The required certificate of prebankruptcy briefing must be filed with the petition, with no extension provided for in the Rule.11 Failure to file the schedules or Statement is a ground for conversion or dismissal under § 1307(c)(9) (but only on the motion of the U.S. trustee).12 After BAPCPA, there are new consequences for the failure to file information required by § 521(a)(1), including the possibility of automatic dismissal if the failure is not cured within 45 days of the petition.13
Bankruptcy Rule 3015 permits the debtor to file the Chapter 13 plan with the petition, or if not filed with the petition, the plan “shall be filed within 15 days thereafter and such time shall not be further extended except for cause shown and on notice.” Bankruptcy Rule 3015 requires the clerk to include the plan or a summary of the plan with notice of the hearing on confirmation pursuant to Bankruptcy Rule 2002(b). Filing the Chapter 13 plan later than the petition creates problems for the clerk, the Chapter 13 trustee and debtor’s counsel.
Bankruptcy Rule 2003(a) requires scheduling the meeting of creditors not less than 20 or more than 50 days after the order for relief. Bankruptcy Rule 2002 requires not less than 20 days’ notice by mail of the meeting of creditors and 25 days’ notice of the confirmation hearing. BAPCPA amended § 1324(b) to state that “the hearing on confirmation . . . may be held not earlier than 20 days and not later than 45 days after the meeting of creditors under section 341(a), unless the court determines that it would be in the best interests of the creditors and the estate to hold such hearing at an earlier date and there is no objection to such earlier date.”14
Discussion of the proposed plan is typically the most important business at the meeting of creditors. If debtor’s counsel delays the filing of the plan, notice of the content of the plan is delayed and the meeting of creditors cannot function efficiently. In jurisdictions where the Chapter 13 trustee is responsible for notice, failure to timely file the Chapter 13 plan can completely disrupt the ordinary processing of the case. Often, the failure to file the plan with the petition or within 15 days will provoke a motion to dismiss from the Chapter 13 trustee and an unnecessary additional round of court appearances at the threshold of the case.
In some jurisdictions, the confirmation hearing occurs simultaneously with the meeting of creditors or immediately thereafter.15 In such jurisdictions, given the minimum 20-day notice and maximum 50-day period before the meeting of creditors and the 25 days’ notice for the confirmation hearing, the counsel who delays filing the plan threatens the ability of the clerk and the Chapter 13 trustee to give the notices required by the Bankruptcy Rules.
A delay in filing the plan may cause debtor’s counsel much additional work. Typically, if the plan is timely filed, the notice to creditors of the content of the plan required by Bankruptcy Rule 3015 will be accomplished by the clerk or by the Chapter 13 trustee. A delay in filing the plan may under local practice result in the shifting of responsibility to debtor’s counsel to give notice to all creditors of the content of the plan.
There is thus little incentive for debtor’s counsel to delay the filing of the schedules, Statement of Financial Affairs, Statement of Current Monthly Income or plan. At the very least, the key documents—the petition, Official Bankruptcy Forms 6, 7, B22C and the plan—should be filed with the petition or within 15 days thereafter. If circumstances prohibit the filing of a key document within the 15-day period, counsel should make a motion for extension of time before the 15-day period expires. Reported cases demonstrate that extensions are not always granted, and any pattern of delay creates additional problems.16 Although Bankruptcy Rule 9006 does not prohibit an out-of-time request for extension of time for filing the schedules, Statement of Financial Affairs, Statement of Current Monthly Income or plan, it is sloppy practice to miss the original deadlines without making a motion to extend.
1 See § 34.3 [ List of Creditors and Addresses ] § 36.4 List of Creditors and Addresses.
3 See § 36.1 [ Statement of Financial Affairs ] § 36.22 Statement of Financial Affairs.
4 Fed. R. Bankr. P. 1007(c). See, e g., In re Miller, No. 07-13481, 2008 WL 110907 (Bankr. S.D.N.Y. Jan. 4, 2008) (unpublished) (Peck) (Debtor, a bankruptcy attorney, moved for additional time to complete schedules and otherwise prosecute case; no cause found because pro se debtor has skill and experience to move case forward.).
5 Pub. L. No. 109-8, 119 Stat. 23 (2005).
6 See §§ 387.1 [ New Filing Requirements and Other Duties: A List ] § 42.1 Filing Requirements and Other Duties: A List and 388.1 [ Consequences of Failure to File Required Information, Including “Automatic Dismissal” ] § 42.2 Consequences of Failure to File Required Information, Including “Automatic Dismissal”.
7 See § 42.3 Payment Advices.
10 See Fed. R. Bankr. P. 1007(c).
12 See §§ 311.2 [ Conversion on Request of Creditor or Trustee ] § 141.2 Conversion on Request of Creditor or Trustee and 312.1 [ Cause for Conversion ] § 141.3 Cause for Conversion.
13 See § 388.1 [ Consequences of Failure to File Required Information, Including “Automatic Dismissal” ] § 42.2 Consequences of Failure to File Required Information, Including “Automatic Dismissal”.
14 11 U.S.C. § 1324(b), discussed in § 502.1 [ Timing of Hearing on Confirmation ] § 115.2 Timing of Hearing on Confirmation after BAPCPA.
15 As discussed in more detail in § 216.1 [ Timing of Hearing on Confirmation ] § 115.1 Timing of Hearing on Confirmation before BAPCPA, the legislative history to § 307 of the Bankruptcy Reform Act of 1994 contains some congressional support for the view that Chapter 13 plans will be confirmed and payments to creditors will commence “prior to the bar date for filing claims.” 140 Cong. Rec. H10,770 (section-by-section analysis by Congressman Brooks).
16 See, e.g., In re Jeffery, Nos. 07-30591-KRH, 07-30691-KRH, 2007 WL 2138746 (Bankr. E.D. Va. July 23, 2007) (unpublished) (Attorney exhibited pattern of filing skeletal petitions and multiple requests to extend time, with schedules and/or plans filed after deadlines in 73% of cases. When motions to extend time were granted, schedules were filed after extended deadline in 90% of cases. Court put attorney on notice that similar transgressions could result in disgorgement and/or reduction of fees in future cases.).