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1.4.2 The Federal Rules of Bankruptcy Procedure

Complementing the statute’s mostly substantive provisions are the Federal Rules of Bankruptcy Procedure, also known as the Bankruptcy Rules, which were promulgated by the Supreme Court in 1983 and amended at various times since then.76 These rules provide detailed guidelines in numerous areas not specifically covered by the Code. They cover the procedures not only for administering the bankruptcy petitions themselves, but also for proceedings within or related to the principal bankruptcy case.77

The rules’ distinction between a “case” and a “proceeding” is important to keep in mind. Although nowhere specifically defined, the word “case” encompasses the bankruptcy petition itself, seeking the relief provided by the Code, and includes within its scope all controversies which arise as to that petition.78 A “proceeding,” on the other hand, concerns a dispute which arises within a case, or which is related to a case.79

“Proceedings” are themselves divided into two categories. Those which are considered more significant or complex are classified as “adversary proceedings” and governed by Part VII of the rules. Rule 7001 contains a list of the matters that fall in this category, including proceedings to recover money or property (with certain exceptions), to determine the validity or priority of a lien or interest in property (except proceedings to avoid judicial liens or non-possessory non-purchase money security interests under section 522(f)), to obtain approval pursuant to section 363(h) for a sale of joint property by the trustee, to object to or revoke a discharge (except if the objection is based on the case having been filed too soon after an earlier case), to obtain an injunction or other equitable relief, to determine the dischargeability of a debt, to obtain most declaratory judgments, and to determine a claim or cause of action removed to a bankruptcy court.

Generally, the adversary proceeding rules, Rules 7001–7087, provide for a lawsuit within the bankruptcy case. With some exceptions (such as service of process which can be done by mail more easily),80 these rules conform closely to the Federal Rules of Civil Procedure and are numbered to correspond to those rules.81 For example, Rule 7004 corresponds to Federal Rule of Civil Procedure 4. All of the federal discovery rules, including the disclosure requirements contained in Federal Rule of Civil Procedure 26, are applicable in every district and bankruptcy court.82

Disputes which are not considered adversary proceedings, such as requests for relief from the automatic stay,83 are called “contested matters” and are governed by Rule 9014.84 Generally, this rule provides for a more summary procedure akin to motion practice, to which only certain of the adversary proceeding rules apply, and in which an answer is not always required, depending on local rules and practice. However, it is important to note that the applicable rules do incorporate various adversary proceeding rules including most of those governing discovery,85 default, and summary judgment.86 Further, the applicability of the various adversary proceeding rules in contested matters may be expanded or restricted by the court.87

Even with the detailed statute and rules, however, there are many procedural questions to which there are no clear answers. Moreover, any rule which is in conflict with the statute is not valid.88

Under the Federal Rules of Bankruptcy Procedure, it continues to be important to determine whether there are also supplemental local rules or unusual local procedural practices, which are typically published on the court’s website.89 When in doubt as to procedure, it is best to check with the clerk of the local bankruptcy court, who will usually be quite cooperative. A failure to be aware of such rules could have dire consequences, because their force and effect equal those of the Bankruptcy Rules.90 Because the rules specifically provide authority for supplemental local rules,91 it may also be useful to suggest to the local bankruptcy court that it promulgate particular rules which would codify or improve current practices.

An additional Interim Rule 1007-I has been released to implement the National Guard and Reservists Debt Relief Act of 2009 excluding certain military and former military members from means testing.

Footnotes

  • 76 {76} The Federal Rules of Bankruptcy Procedure, as most recently amended in 2015, appear in Appendix B, infra. The Rules are now to be formally cited as the Federal Rules of Bankruptcy Procedure (Fed. R. Bankr. P.) as opposed to the “Bankruptcy Rules” under prior law. Fed. R. Bankr. P. 1001.

  • 77 {77} The Bankruptcy Rules cover proceedings in bankruptcy cases even when those proceedings are before district court judges. Fed. R. Civ. P. 81(a)(1); Fed. R. Bankr. P. 1001. See Hedges v. Resolution Trust Corp., 32 F.3d 1360 (9th Cir. 1994) (Fed. R. Civ. P. 11 does not apply when district court is reviewing bankruptcy decision; proper authority is Fed. R. Bankr. P. 9011).

  • 78 {78} Fed. R. Bankr. P. 1002; 11 U.S.C. §§ 301, 303.

  • 79 {79} 1 Collier on Bankruptcy ¶ 3.01[3][d] (16th ed.).

  • 80 {80} The procedures for service under Fed. R. Bankr. P. 7004 were amended by the Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, 108 Stat. 4106, to require service on insured depository institutions by certified mail in most cases. See Fed. R. Bankr. P. 7004(h); § 14.3.2.1, infra.

  • 81 {81} Certain other Federal Rules of Civil Procedure, applicable to all bankruptcy matters, and not just adversary proceedings, are incorporated in Part IX of the Bankruptcy Rules. See, e.g., Fed. R. Bankr. P. 9024 (incorporating Fed. R. Civ. P. 60).

  • 82 {82} However, Fed. R. Bankr. P. 9014(c) provides that the mandatory disclosure requirements of Fed. R. Civ. P. 26, as incorporated by Fed. R. Bankr. P. 7026, do not apply in contested matters.

  • 83 {83} The automatic stay obtained by filing a bankruptcy petition is discussed in detail in Chapter 9, infra.

  • 84 {84} Fed. R. Bankr. P. 9014 advisory committee’s note.

    The only exceptions to this principle are those few matters specifically designated as “applications” in particular rules, which normally do not give rise to actual disputes. See, e.g., Fed. R. Bankr. P. 1006(b) (application to pay filing fee in installments).

  • 85 {85} Fed. R. Bankr. P. 7028–7037.

  • 86 {86} Fed. R. Bankr. P. 7055, 7056.

  • 87 {87} Fed. R. Bankr. P. 9014(c).

  • 88 {88} 28 U.S.C. § 2075.

  • 89 {89} See § 1.4.4.3, infra.

  • 90 {90} See, e.g., In re Adams, 734 F.2d 1094 (5th Cir. 1984) (failure to properly list creditor’s address on mailing matrix required by local rule resulted in debt being excepted from discharge as not “duly scheduled”).

  • 91 {91} Fed. R. Bankr. P. 9029.