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PART II--OFFICERS AND ADMINISTRATION; NOTICES;
MEETINGS; EXAMINATIONS; ELECTIONS; ATTORNEYS AND ACCOUNTANTS
Rule 2001. Appointment of Interim Trustee Before Order
for Relief in a Chapter 7 Liquidation Case
(a) Appointment. At any time following the
commencement of an involuntary liquidation case and before an order for
relief, the court on written motion of a party in interest may order the
appointment of an interim trustee under §
303(g) of the Code. The motion shall set forth the necessity for the
appointment and may be granted only after hearing on notice to the debtor, the
petitioning creditors, the United States trustee, and other parties in
interest as the court may designate.
(b) Bond of movant. An interim trustee may not
be appointed under this rule unless the movant furnishes a bond in an amount
approved by the court, conditioned to indemnify the debtor for costs,
attorney's fee, expenses, and damages allowable under §
303(i) of the Code.
(c) Order of Appointment. The order directing
the appointment of an interim trustee shall state the reason the appointment
is necessary and shall specify the trustee's duties.
(d) Turnover and report. Following
qualification of the trustee selected under § 702
of the Code, the interim trustee, unless otherwise ordered, shall (1)
forthwith deliver to the trustee all the records and property of the estate in
possession or subject to control of the interim trustee and, (2) within 30
days thereafter file a final report and account.
Rule 2002. Notices to Creditors, Equity Security
Holders, United States, and United States Trustee
(a) Twenty-day notices to parties in interest.
Except as provided in subdivisions (h), (i), and (l) of this rule, the clerk,
or some other person as the court may direct, shall give the debtor, the
trustee, all creditors and indenture trustees at least 20 days' notice by mail
of:
(1) the meeting of creditors under § 341 or §
1104(b) of the Code, which notice, unless the court orders otherwise,
shall include the debtor's employer identification number, social security
number, and any other federal taxpayer identification number;
(2) a proposed use, sale, or lease of property of the estate other than
in the ordinary course of business, unless the court for cause shown
shortens the time or directs another method of giving notice;
(3) the hearing on approval of a compromise or settlement of a
controversy other than approval of an agreement pursuant to Rule
4001(d), unless the court for cause shown directs that notice not be
sent;
(4) in a chapter 7 liquidation, a chapter 11 reorganization case, and a
chapter 12 family farmer debt adjustment case, the hearing on the dismissal
of the case or the conversion of the case to another chapter, unless the
hearing is under § 707(a)(3) or §
707(b) or is on dismissal of the case for failure to pay the filing fee;
(5) the time fixed to accept or reject a proposed modification of a plan;
(6) a hearing on any entity's request for compensation or reimbursement
of expenses if the request exceeds $1,000;
(7) the time fixed for filing proofs of claims pursuant to Rule
3003(c); and
(8) the time fixed for filing objections and the hearing to consider
confirmation of a chapter 12 plan.
(b) Twenty-five-day notices to parties in interest.
Except as provided in subdivision (1) of this rule, the clerk, or some other
person as the court may direct, shall give the debtor, the trustee, all
creditors and indenture trustees not less than 25 days notice by mail of (1)
the time fixed for filing objections and the hearing to consider approval of a
disclosure statement; and (2) the time fixed for filing objections and the
hearing to consider confirmation of a chapter 9, chapter 11, or chapter 13
plan.
(c) Content of notice.
(1) Proposed use, sale, or lease of property. Subject to Rule
6004 the notice of a proposed use, sale, or lease of property required
by subdivision (a)(2) of this rule shall include the time and place of any
public sale, the terms and conditions of any private sale and the time fixed
for filing objections. The notice of a proposed use, sale, or lease of
property, including real estate, is sufficient if it generally describes the
property.
(2) Notice of hearing on compensation. The notice of a hearing on an
application for compensation or reimbursement of expenses required by
subdivision (a)(6) of this rule shall identify the applicant and the amounts
requested.
(3) Notice of Hearing on Confirmation When Plan Provides for an
Injunction. If a plan provides for an injunction against conduct not
otherwise enjoined under the Code, the notice required under Rule
2002(b)(2) shall:
(A) include in conspicuous language (hold, italic, or underlined text)
a statement that the plan proposes an injunction;
(B) describe briefly the nature of the injunction; and
(C) identify the entities that would be subject to the injunction.
(d) Notice to equity security holders. In a
chapter 11 reorganization case, unless otherwise ordered by the court, the
clerk, or some other person as the court may direct, shall in the manner and
form directed by the court give notice to all equity security holders of (1)
the order for relief; (2) any meeting of equity security holders held pursuant
to § 341 of the Code; (3) the hearing on the
proposed sale of all or substantially all of the debtor's assets; (4) the
hearing on the dismissal or conversion of a case to another chapter; (5) the
time fixed for filing objections to and the hearing to consider approval of a
disclosure statement; (6) the time fixed for filing objections to and the
hearing to consider confirmation of a plan; and (7) the time fixed to accept
or reject a proposed modification of a plan.
(e) Notice of no dividend. In a chapter 7
liquidation case, if it appears from the schedules that there are no assets
from which a dividend can be paid, the notice of the meeting of creditors may
include a statement to that effect; that it is unnecessary to file claims; and
that if sufficient assets become available for the payment of a dividend,
further notice will be given for the filing of claims.
(f) Other notices. Except as provided in
subdivision (l) of this rule, the clerk, or some other person as the court may
direct, shall give the debtor, all creditors, and indenture trustees notice by
mail of: (1) the order for relief; (2) the dismissal or the conversion of the
case to another chapter, or the suspension of proceedings under §
305; (3) the time allowed for filing claims pursuant to Rule
3002; (4) the time fixed for filing a complaint objecting to the debtor's
discharge pursuant to § 727 of the Code as
provided in Rule 4004; (5) the time fixed for
filing a complaint to determine the dischargeability of a debt pursuant to §
523 of the Code as provided in Rule 4007;
(6) the waiver, denial, or revocation of a discharge as provided in Rule
4006; (7) entry of a order confirming a chapter 9, 11, or 12 plan; and (8)
a summary of the trustee's final report in a chapter 7 case if the net
proceeds realized exceed $1,500. Notice of the time fixed for accepting or
rejecting a plan pursuant to Rule 3017(c) shall
be given in accordance with Rule 3017(d).
(g) Addresses of notices.
(1) Notices required to be mailed under Rule 2002 to
a creditor, indenture trustee, or equity security holder shall be addressed
as such entity or an authorized agent has directed in its last request filed
in the particular case. For the purposes of this subdivision -
(A) a proof of claim filed by a creditor or indenture trustee that
designates a mailing address constitutes a filed request to mail notices
to that address, unless a notice of no dividend has been given under Rule
2002(e) and a later notice of possible dividend under Rule
3002(c)(5) has not been given; and
(B) a proof of interest filed by an equity security holder that
designates a mailing address constitutes a filed request to mail notices
to that address.
(2) If a creditor or indenture trustee has not filed a request
designating a mailing address under Rule 2002(g)(1),
the notices shall be mailed to the address shown on the list of creditors or
schedule of liabilities, whichever if filed later. If an equity security
holder has not filed a request designating a mailing address under Rule
2002(g)(1), the notices shall be mailed to the address shown on the list
of equity security holders.
(3) If a list or schedule filed under Rule 1007
includes the name and address of a legal representative of an infant or
incompetent person, and a person other than that representative files a
request or proof of claim designating a name and mailing address that
differs from the name and address of the representative included in the list
or schedule, unless the court orders otherwise, notices under Rule
2002 shall be mailed to the representative included in the list or
schedules and to the name and address designated in the request or proof of
claim.
(4) Notwithstanding Rule 2002(g) (1) - (3), an
entity and a notice provider may agree that when the notice provider is
directed by the court to give a notice, the notice provider shall give the
notice to the entity in the manner agreed to and at the address or addresses
the entity supplies to the notice provider. That address is conclusively
presumed to be a proper address for the notice. The notice provider’s
failure to use the supplied address does not invalidate any
notice that is otherwise effective under applicable law.
(h) Notices to creditors whose claims are filed.
In a chapter 7 case, after 90 days following the first date set for the
meeting of creditors under § 341 of the Code, the
court may direct that all notices required by subdivision (a) of this rule be
mailed only to the debtor, the trustee, all indenture trustees, creditors that
hold claims for which proofs of claim have been filed, and creditors, if any,
that are still permitted to file claims by reason of an extension granted
pursuant to Rule 3002(c)(1) or (c)(2). In a case
where notice of insufficient assets to pay a dividend has been given to
creditors pursuant to subdivision (e) of this rule, after 90 days following
the mailing of a notice of the time for filing claims pursuant to Rule
3002(c)(5), the court may direct that notices be mailed only to the
entities specified in the preceding sentence.
(i) Notices to committees. Copies of all
notices required to be mailed pursuant to this rule shall be mailed to the
committees elected under § 705 or appointed under
§ 1102 of the Code or to their authorized agents.
Notwithstanding the foregoing subdivisions, the court may order that notices
required by subdivision (a)(2), (3) and (6) of this rule be transmitted to the
United States trustee and be mailed only to the committees elected under §
705 or appointed under § 1102 of the Code or to
their authorized agents and to the creditors and equity security holders who
serve on the trustee or debtor in possession and file a request that all
notices be mailed to them. A committee appointed under §
1114 shall receive copies of all notices required by subdivisions (a)(1),
(a)(5), (b), (f)(2), and (f)(7), and such other notices as the court may
direct.
(j) Notices to the United States. Copies of
notices required to be mailed to all creditors under this rule shall be mailed
(1) in a chapter 11 reorganization case, to the Securities and Exchange
Commission at any place the Commission designates, if the Commission has filed
either a notice of appearance in the case or a written request to receive
notices; (2) in a commodity broker case, to the Commodity Futures Trading
Commission at Washington, D.C.; (3) in a chapter 11 case, to the Internal
Revenue Service at its address set out in the register maintained under Rule
5003(e) for the district in which the case is pending; (4) if the papers
in the case disclose a debt to the United States other than for taxes, to the
United States attorney for the district in which the case is pending and to
the department, agency, or instrumentality of the United States through which
the debtor became indebted; or (5) if the filed papers disclose a stock
interest of the United States, to the Secretary of the Treasury at Washington,
D.C.
(k) Notices to United States trustee. Unless
the case is a chapter 9 municipality case or unless the United States trustee
requests otherwise, the clerk, or some other person as the court may direct,
shall transmit to the United States trustee notice of the matters described in
subdivisions (a)(2), (a)(3), (a)(4),
(a)(8), (b), (f)(1),
(f)(2), (f)(4), (f)(6),
(f)(7), and (f)(8) of this rule
and notice of hearings on all applications for compensation or reimbursement
of expenses. Notices to the United States trustee shall be transmitted within
the time prescribed in subdivision (a) or (b) of this rule. The United States
trustee shall also receive notice of any other matter if such notice is
requested by the United States trustee or ordered by the court. Nothing in
these rules requires the clerk or any other person to transmit to the United
States trustee any notice, schedule, report, application or other document in
a case under the Securities Investor Protection Act, 15 U.S.C. § 78aaa et
seq.
(l) Notice by publication. The court may order
notice by publication if it finds that notice by mail is impracticable or that
it is desirable to supplement the notice.
(m) Orders designating matter of notices. The
court may from time to time enter orders designating the matters in respect to
which, the entity to whom, and the form and manner in which notices shall be
sent except as otherwise provided by these rules.
(n) Caption. The caption of every notice given
under this rule shall comply with Rule 1005. The
caption of every notice required to be given by the debtor to a creditor shall
include the information required to be in the notice by §
342(c) of the Code.
(o) Notice of order for relief in consumer case.
In a voluntary case commenced by an individual debtor whose debts are
primarily consumer debts, the clerk or some other person as the court may
direct shall give the trustee and all creditors notice by mail of the order
for relief within 20 days from the date thereof.
Rule 2003. Meeting of Creditors or Equity Security
Holders
(a) Date and place. In a chapter 7 liquidation
or a chapter 11 reorganization case, the United States trustee shall call a
meeting of creditors to be held no fewer than 20 and no more than 40 days
after the order for relief. In a chapter 12 family farmer debt adjustment
case, the United States trustee shall call a meeting of creditors to be held
no fewer than 20 and no more than 35 days after the order for relief. In a
chapter 13 individual's debt adjustment case, the United States trustee shall
call a meeting of creditors to be held no fewer than 20 and no more than 50
days after the order for relief. If there is an appeal from or a motion to
vacate the order for relief, or if there is a motion to dismiss the case, the
United States trustee may set a later date for the meeting. The meeting may be
held at a regular place for holding court or at any other place designated by
the United States trustee within the district convenient for the parties in
interest. If the United States trustee designates a place for the meeting
which is not regularly staffed by the United States trustee or an assistant
who may preside at the meeting, the meeting may be held not more than 60 days
after the order for relief.
(b) Order of meeting.
(1) Meeting of creditors. The United States trustee shall preside
at the meeting of creditors. The business of the meeting shall include the
examination of the debtor under oath and, in a chapter 7 liquidation case,
may include the election of a creditors' committee and, if the case is not
under subchapter V of chapter 7, the election of a trustee. The presiding
officer shall have the authority to administer oaths.
(2) Meeting of equity security holders. If the United States
trustee convenes a meeting of equity security holders pursuant to §
341(b) of the Code, the United States trustee shall fix a date for the
meeting and shall preside.
(3) Right to vote. In a chapter 7 liquidation case, a creditor is
entitled to vote at a meeting if, at or before the meeting, the creditor has
filed a proof of claim or a writing setting forth facts evidencing a right
to vote pursuant to § 702(a) of the Code
unless objection is made to the claim or the proof of claim is insufficient
on its face. A creditor of a partnership may file a proof of claim or
writing evidencing a right to vote for the trustee for the estate of a
general partner notwithstanding that a trustee for the estate of the
partnership has previously qualified. In the event of an objection to the
amount or allowability of a claim for the purpose of voting, unless the
court orders otherwise, the United States trustee shall tabulate the votes
for each alternative presented by the dispute and, if resolution of such
dispute is necessary to determine the result of the election, the
tabulations for each alternative shall be reported to the court.
(c) Record of meeting. Any examination under
oath at the meeting of creditors held pursuant to §
341(a) of the Code shall be recorded verbatim by the United States trustee
using electronic sound recording equipment or other means of recording, and
such record shall be preserved by the United States trustee and available for
public access until two years after the conclusion of the meeting of
creditors. Upon request of any entity, the United States trustee shall certify
and provide a copy or transcript of such recording at the entity's expense.
(d) Report of election and resolution of disputes in
a chapter 7 case
(1) Report of undisputed election.
In a chapter 7 case, if the election of a trustee or a member of a
creditors' committee is not disputed, the United States trustee shall
promptly file a report of the election, including the name and address of
the person or entity elected and a statement that the election is
undisputed.
(2) Disputed election.
If the election is disputed, the United States trustee shall promptly
file a report stating that the election is disputed, informing the court of
the nature of the dispute, and listing the name and address of any candidate
elected under any alternative presented by the dispute. No later than the
date on which the report is filed, the United States trustee shall mail a
copy of the report to any party in interest that has made a request to
recieve a copy of the report. Pending disposition by the court of a disputed
election for trustee, the interim trustee shall continue in office. Unless a
motion for the resolution of the dispute is filed no later than 10 days
after the United States trustee files a report of a disputed election for
trustee, the interim trustee shall serve as a trustee in the case.
(e) Adjournment. The meeting may be adjourned
from time to time by announcement at the meeting of the adjourned date and
time without further written notice.
(f) Special meetings. The United States trustee
may call a special meeting of creditors on request of a party in interest or
on the United States trustee's own initiative.
(g) Final meeting. If the United States trustee
calls a final meeting of creditors in a case in which the net proceeds
realized exceed $1,500, the clerk shall mail a summary of the trustee's final
account to the creditors with a notice of the meeting, together with a
statement of the amount of the claims allowed. The trustee shall attend the
final meeting and shall, if requested, report on the administration of the
estate.
Rule 2004. Examination
(a) Examination on motion. On motion of any
party in interest, the court may order the examination of any entity.
(b) Scope of examination. The examination of an
entity under this rule or of the debtor under § 343
of the Code may relate only to the acts, conduct, or property or to the
liabilities and financial condition of the debtor, or to any matter which may
affect the administration of the debtor's estate, or to the debtor's right to
a discharge. In a family farmer's debt adjustment case under chapter 12, an
individual's debt adjustment case under chapter 13, or a reorganization case
under chapter 11 of the Code, other than for the reorganization of a railroad,
the examination may also relate to the operation of any business and the
desirability of its continuance, the source of any money or property acquired
or to be acquired by the debtor for purposes of consummating a plan and the
consideration given or offered therefor, and any other matter relevant to the
case or to the formulation of a plan.
(c) Compelling attendance and production of
documentary evidence. The attendance of an entity for examination and
for the production of documents, whether the examination is to be conducted
within or without the district in which the case is pending, may be compelled
as provided in Rule 9016 for the attendance of a
witness at a hearing or trial. As an officer of the court, an attorney may
issue and sign a subpoena on behalf of the court for the district in which the
examination is to be held if the attorney is admitted to practice in that
court or in the court in which the case is pending.
(d) Time and place of examination of debtor.
The court may for cause shown and on terms as it may impose order the debtor
to be examined under this rule at any time or place it designates, whether
within or without the district wherein the case is pending.
(e) Mileage. An entity other than a debtor
shall not be required to attend as a witness unless lawful mileage and witness
fee for one day's attendance shall be first tendered. If the debtor resides
more than 100 miles from the place of examination when required to appear for
an examination under this rule, the mileage allowed by law to a witness shall
be tendered for any distance more than 100 miles from the debtor's residence
at the date of the filing of the first petition commencing a case under the
Code or the residence at the time the debtor is required to appear for the
examination, whichever is the lesser.
Rule 2005. Apprehension and Removal of Debtor to Compel
Attendance for Examination
(a) Order to compel attendance for examination.
On motion of any party in interest supported by an affidavit alleging (1) that
the examination of the debtor is necessary for the proper administration of
the estate and that there is reasonable cause to believe that the debtor is
about to leave or has left the debtor's residence or principal place of
business to avoid examination, or (2) that the debtor has evaded service of a
subpoena or of an order to attend for examination, or (3) that the debtor has
willfully disobeyed a subpoena or order to attend for examination, duly
served, the court may issue to the marshal, or some other officer authorized
by law, an order directing the officer to bring the debtor before the court
without unnecessary delay. If, after hearing, the court finds the allegations
to be true, the court shall thereupon cause the debtor to be examined
forthwith. If necessary, the court shall fix conditions for further
examination and for the debtor's obedience to all orders made in reference
thereto.
(b) Removal. Whenever any order to bring the
debtor before the court is issued under this rule and the debtor is found in a
district other than that of the court issuing the order, the debtor may be
taken into custody under the order and removed in accordance with the
following rules:
(1) If the debtor is taken into custody under the order at a place less
than 100 miles from the place of issue of the order, the debtor shall be
brought forthwith before the court that issued the order.
(2) If the debtor is taken into custody under the order at a place 100
miles or more from the place of issue of the order, the debtor shall be
brought without unnecessary delay before the nearest available United States
magistrate judge, bankruptcy judge, or district judge. If, after hearing,
the magistrate judge, bankruptcy judge, or district judge finds that an
order has issued under this rule and that the person in custody is the
debtor, or if the person in custody waives a hearing, the magistrate judge,
bankruptcy judge, or district judge shall order removal, and the person in
custody shall be released on conditions ensuring prompt appearance before
the court that issued the order to compel the attendance.
(c) Conditions of release. In determining what
conditions will reasonably assure attendance or obedience under subdivision
(a) of this rule or appearance under subdivision (b) of this rule, the court
shall be governed by the provisions and policies of title 18, U.S.C., §
3146(a) and (b).
Rule 2006. Solicitation and Voting of Proxies in
Chapter 7 Liquidation Cases
(a) Applicability. This rule applies only in a
liquidation case pending under chapter 7 of the Code.
(b) Definitions.
(1) Proxy. A proxy is a written power of attorney authorizing any
entity to vote the claim or otherwise act as the owner's attorney in fact in
connection with the administration of the estate.
(2) Solicitation of proxy. The solicitation of a proxy is any
communication, other than one from an attorney to a regular client who owns
a claim or from an attorney to the owner of a claim who has requested the
attorney to represent the owner, by which a creditor is asked, directly or
indirectly, to give a proxy after or in contemplation of the filing of a
petition by or against the debtor.
(c) Authorized solicitation.
(1) A proxy may be solicited only by (A) a creditor owning an allowable
unsecured claim against the estate on the date of the filing of the
petition; (B) a committee elected pursuant to § 705
of the Code; (C) a committee of creditors selected by a majority in number
and amount of claims of creditors (i) whose claims are not contingent or
unliquidated, (ii) who are not disqualified from voting under §
702(a) of the Code and (iii) who were present or represented at a
meeting of which all creditors having claims of over $500 or the 100
creditors having the largest claims had at least five days notice in writing
and of which meeting written minutes were kept and are available reporting
the names of the creditors present or represented and voting and the amounts
of their claims; or (D) a bona fide trade or credit association, but such
association may solicit only creditors who were its members or subscribers
in good standing and had allowable unsecured claims on the date of the
filing of the petition.
(2) A proxy may be solicited only in writing.
(d) Solicitation not authorized. This rule does
not permit solicitation (1) in any interest other than that of general
creditors; (2) by or on behalf of any custodian; (3) by the interim trustee or
by or on behalf of any entity not qualified to vote under §
702(a) of the Code; (4) by or on behalf of an attorney at law; or (5) by
or on behalf of a transferee of a claim for collection only.
(e) Data required from holders of multiple proxies.
At any time before the voting commences at any meeting of creditors pursuant
to § 341(a) of the Code, or at any other
time as the court may direct, a holder of two or more proxies shall file and
transmit to the United States trustee a verified list of the proxies to be
voted and a verified statement of the pertinent facts and circumstances in
connection with the execution and delivery of each proxy, including:
(1) a copy of the solicitation;
(2) identification of the solicitor, the forwarder, if the forwarder is
neither the solicitor nor the owner of the claim, and the proxyholder,
including their connections with the debtor and with each other. If the
solicitor, forwarder, or proxyholder is an association, there shall also be
included a statement that the creditors whose claims have been solicited and
the creditors whose claims are to be voted were members or subscribers in
good standing and had allowable unsecured claims on the date of the filing
of the petition. If the solicitor, forwarder, or proxyholder is a committee
of creditors, the statement shall also set forth the date and place the
committee was organized, that the committee was organized in accordance with
clause (B) or (C) of paragraph (c)(1) of this rule, the members of the
committee, the amounts of their claims, when the claims were acquired, the
amounts paid therefor, and the extent to which the claims of the committee
members are secured or entitled to priority;
(3) a statement that no consideration has been paid or promised by the
proxyholder for the proxy;
(4) a statement as to whether there is any agreement and, if so, the
particulars thereof, between the proxyholder and any other entity for the
payment of any consideration in connection with voting the proxy, or for the
sharing of compensation with any entity, other than a member or regular
associate of the proxyholder's firm, which may be allowed the trustee or any
entity for services rendered in the case, or for the employment of any
person as attorney, accountant, appraiser, auctioneer, or other employee for
the estate;
(5) if the proxy was solicited by an entity other than the proxyholder,
or forwarded to the holder by an entity who is neither a solicitor of the
proxy nor the owner of the claim, a statement signed and verified by the
solicitor or forwarder that no consideration has been paid or promised for
the proxy, and whether there is any agreement, and, if so, the particulars
thereof, between the solicitor or forwarder and any other entity for the
payment of any consideration in connection with voting the proxy, or for
sharing compensation with any entity, other than a member or regular
associate of the solicitor's or forwarder's law firm which may be allowed
the trustee or any entity for services rendered in the case, or for the
employment of any person as attorney, accountant, appraiser, auctioneer, or
other employee for the estate;
(6) if the solicitor, forwarder, or proxyholder is a committee, a
statement signed and verified by each member as to the amount and source of
any consideration paid or to be paid to such member in connection with the
case other than by way of dividend on the member's claim.
(f) Enforcement of restrictions on solicitation.
On motion of any party in interest or on its own initiative, the court may
determine whether there has been a failure to comply with the provisions of
this rule or any other impropriety in connection with the solicitation or
voting of a proxy. After notice and a hearing the court may reject any proxy
for cause, vacate any order entered in consequence of the voting of any proxy
which should have been rejected, or take any other appropriate action.
Rule 2007. Review of Appointment of Creditors'
Committee Organized Before Commencement of the Case
(a) Motion to review appointment. If a
committee appointed by the United States trustee pursuant to §
1102(a) of the Code consists of the members of a committee organized by
creditors before the commencement of a chapter 9 or chapter 11 case, on motion
of a party in interest and after a hearing on notice to the United States
trustee and other entities as the court may direct, the court may determine
whether the appointment of the committee satisfies the requirements of §
1102(b)(1) of the Code.
(b) Selection of members of committee. The
court may find that a committee organized by unsecured creditors before the
commencement of a chapter 9 or chapter 11 case was fairly chosen if:
(1) it was selected by a majority in number and amount of claims of
unsecured creditors who may vote under §
702(a) of the Code and were present in person or represented at a
meeting of which all creditors having unsecured claims of over $1,000 or the
100 unsecured creditors having the largest claims had at least five days
notice in writing, and of which meeting written minutes reporting the names
of the creditors present or represented and voting and the amounts of their
claims were kept and are available for inspection;
(2) all proxies voted at the meeting for the elected committee were
solicited pursuant to Rule 2006 and the lists and
statements required by subdivision (e) thereof have been transmitted to the
United States trustee; and
(3) the organization of the committee was in all other respects fair and
proper.
(c) Failure to comply with requirements for
appointment. After a hearing on notice pursuant to subdivision (a) of
this rule, the court shall direct the United States trustee to vacate the
appointment of the committee and may order other appropriate action if the
court finds that such appointment failed to satisfy the requirements of §
1102(b)(1) of the Code.
Rule 2007.1. Appointment of Trustee or Examiner in a
Chapter 11 Reorganization Case
(a) Order to appoint trustee or examiner. In
a chapter 11 reorganization case, a motion for an order to appoint a trustee
or an examiner under § 1104(a) or §
1104(c) of the Code shall be made in accordance with Rule
9014.
(b) Election of trustee.
(1) Request for an election. A request to convene a meeting of
creditors for the purpose of electing a trustee in a chapter 11
reorganization case shall be filed and transmitted to the United States
trustee in accordance with Rule 5005 within
the time prescribed by § 1104(b) of the Code.
Pending court approval of the person elected, any person appointed by the
United States trustee under § 1104(d) and approved
in accordance with subdivision (c) of this rule shall serve as trustee.
(2) Manner of election and notice.
An election of a trustee under § 1104(b) of the
Code shall be conducted in the manner provided in Rules
2003(b)(3) and 2006. Notice of the meeting of
creditors convened under § 1104(b) shall be given
as provided in Rule 2002. The United States trustee
shall preside at the meeting. A proxy for the purpose of voting in the
election may be solicited only by a committee of creditors appointed under §
1102 of the Code or by any other party entitled to solicit a proxy
pursuant to Rule 2006.
(3) Report of election and resolution of disputes.
(A) Report of undisputed election. If the election is not disputed, the
United States trustee shall promptly file a report of the election,
including the name and address of the person elected and a statement that
the election is undisputed. The United States trustee shall file with the
report an application for approval of the appointment in accordance with
subdivision (c) of this rule. The report constitutes appointment of the
elected person to serve as trustee, subject to court approval, as of the
date of entry of the order approving the appointment.
(B) Disputed election. If the election is disputed, the United States
trustee shall promptly file a report stating that the election is
disputed, informing the court of the nature of the dispute, and listing
the name and address of any candidate elected under any alternative
presented by the dispute. The report shall be accompanied by a verified
statement by each candidate elected under each alternative presented by
the dispute, setting forth the person's connections with the debtor,
creditors, any other party in interest, their respective attorneys and
accountants, the United States trustee, and any person employed in the
office of the United States trustee. Not later than the date on which the
report of the disputed election is filed, the United States trustee shall
mail a copy of the report and each verified statement to any party in
interest that has made a request to convene a meeting under §
1104(b) or to receive a copy of the report, and to any committee
appointed under § 1102 of the Code. Unless a
motion for the resolution of the dispute is filed not later than 10 days
after the United States trustee files the report, any person appointed by
the United States trustee under § 1104(d) and
approved in accordance with subdivision (c) of this rule shall serve as
trustee. If a motion for the resolution of the dispute is timely filed,
and the court determines the result of the election and approves the
person elected, the report will constitute appointment of the elected
person as of the date of entry of the order approving the appointment.
(c) Approval of appointment. An order
approving the appointment of a trustee elected under §
1104(b) or appointed under § 1104(d), or the
appointment of an examiner under § 1104(d) of the
Code, shall be made on application of the United States trustee. The
application shall state the name of the person appointed and, to the best of
the applicant's knowledge, all the person's connections with the debtor,
creditors, any other parties in interest, their respective attorneys and
accountants, the United States trustee, and persons employed in the office of
the United States trustee. Unless the person has been elected under §
1104(b), the application shall state the names of the parties in interest
with whom the United States trustee consulted regarding the appointment. The
application shall be accompanied by a verified statement of the person
appointed setting forth the person's connections with the debtor, creditors,
any other party in interest, their respective attorneys and accountants, the
United States trustee, and any person employed in the office of the United
States trustee.
Rule 2008. Notice to Trustee of Selection
The United States trustee shall immediately notify the person selected as
trustee how to qualify and, if applicable, the amount of the trustee's bond. A
trustee that has filed a blanket bond pursuant to Rule 2010
and has been selected as trustee in a chapter 7, chapter 12, or chapter 13
case that does not notify the court and the United States trustee in writing
of rejection of the office within five days after receipt of notice of
selection shall be deemed to have accepted the office. Any other person
selected as trustee shall notify the court and the United States trustee in
writing of acceptance of the office within five days after receipt of notice
of selection or shall be deemed to have rejected the office.
Rule 2009. Trustees for Estates When Joint
Administration Ordered
(a) Election of single trustee for estates being
jointly administered. If the court orders a joint administration of two
or more estates under Rule 1015(b), creditors
may elect a single trustee for the estates being jointly administered, unless
the case is under subchapter V of chapter 7 of the Code.
(b) Right of creditors to elect separate trustee.
Notwithstanding entry of an order for joint administration under Rule
1015(b) the creditors of any debtor may elect a separate trustee for the
estate of the debtor as provided in § 702 of the
Code, unless the case is under subchapter V of chapter 7 of the Code.
(c) Appointment of trustees for estates being jointly
administered.
(1) Chapter 7 liquidation cases. Except in a case governed by
subchapter V of chapter 7, the United States trustee may appoint one or more
interim trustees for estates being jointly administered in chapter 7 cases.
(2) Chapter 11 reorganization cases. If the appointment of a
trustee is ordered, the United States trustee may appoint one or more
trustees for estates being jointly administered in chapter 11 cases.
(3) Chapter 12 family farmer's debt adjustment cases. The United
States trustee may appoint one or more trustees for estates being jointly
administered in chapter 12 cases.
(4) Chapter 13 individual's debt adjustment cases. The United
States trustee may appoint one or more trustees for estates being jointly
administered in chapter 13 cases.
(d) Potential conflicts of interest. On a
showing that creditors or equity security holders of the different estates
will be prejudiced by conflicts of interest of a common trustee who has been
elected or appointed, the court shall order the selection of separate trustees
for estates being jointly administered.
(e) Separate accounts. The trustee or trustees
of estates being jointly administered shall keep separate accounts of the
property and distribution of each estate.
Rule 2010. Qualification by Trustee; Proceeding on Bond
(a) Blanket bond. The United States trustee may
authorize a blanket bond in favor of the United States conditioned on the
faithful performance of official duties by the trustee or trustees to cover
(1) a person who qualifies as trustee in a number of cases, and (2) a number
of trustees each of whom qualifies in a different case.
(b) Proceeding on bond. A proceeding on the
trustee's bond may be brought by any party in interest in the name of the
United States for the use of the entity injured by the breach of the
condition.
Rule 2011. Evidence of Debtor in Possession or
Qualification of Trustee
(a) Whenever evidence is required that a debtor is a
debtor in possession or that a trustee has qualified, the clerk may so certify
and the certificate shall constitute conclusive evidence of that fact.
(b) If a person elected or appointed as trustee does
not qualify within the time prescribed by § 322(a)
of the Code, the clerk shall so notify the court and the United States
trustee.
Rule 2012. Substitution of Trustee or Successor
Trustee; Accounting
(a) Trustee. If a trustee is appointed in a
chapter 11 case or the debtor is removed as debtor in possession in a chapter
12 case, the trustee is substituted automatically for the debtor in possession
as a party in any pending action, proceeding, or matter.
(b) Successor trustee. When a trustee dies,
resigns, is removed, or otherwise ceases to hold office during the pendency of
a case under the Code (1) the successor is automatically substituted as a
party in any pending action, proceeding, or matter; and (2) the successor
trustee shall prepare, file, and transmit to the United States trustee an
accounting of the prior administration of the estate.
Rule 2013. Public Record of Compensation Awarded to
Trustees, Examiners, and Professionals
(a) Record to be kept. The clerk shall maintain
a public record listing fees awarded by the court (1) to trustees and
attorneys, accountants, appraisers, auctioneers and other professionals
employed by trustees, and (2) to examiners. The record shall include the name
and docket number of the case, the name of the individual or firm receiving
the fee and the amount of the fee awarded. The record shall be maintained
chronologically and shall be kept current and open to examination by the
public without charge. "Trustees," as used in this rule, does not
include debtors in possession.
(b) Summary of record. At the close of each
annual period, the clerk shall prepare a summary of the public record by
individual or firm name, to reflect total fees awarded during the preceding
year. The summary shall be open to examination by the public without charge.
The clerk shall transmit a copy of the summary to the United States trustee.
Rule 2014. Employment of Professional Persons
(a) Application for an order of employment. An
order approving the employment of attorneys, accountants, appraisers,
auctioneers, agents, or other professionals pursuant to §
327, § 1103, or § 1114
of the Code shall be made only on application of the trustee or committee. The
application shall be filed and, unless the case is a chapter 9 municipality
case, a copy of the application shall be transmitted by the applicant to the
United States trustee. The application shall state the specific facts showing
the necessity for the employment, the name of the person to be employed, the
reasons for the selection, the professional services to be rendered, any
proposed arrangement for compensation, and, to the best of the applicant's
knowledge, all of the person's connections with the debtor, creditors, any
other party in interest, their respective attorneys and accountants, the
United States trustee, or any person employed in the office of the United
States trustee. The application shall be accompanied by a verified statement
of the person to be employed setting forth the person's connections with the
debtor, creditors, any other party in interest, their respective attorneys and
accountants, the United States trustee, or any person employed in the office
of the United States trustee.
(b) Services rendered by member or associate of firm
of attorneys or accountants. If, under the Code and this rule, a law
partnership or corporation is employed as an attorney, or an accounting
partnership or corporation is employed as an accountant, or if a named
attorney or accountant is employed, any partner, member, or regular associate
of the partnership, corporation or individual may act as attorney or
accountant so employed, without further order of the court.
Rule 2015. Duty to Keep Records, Make Reports, and Give
Notice of Case
(a) Trustee or debtor in possession. A trustee
or debtor in possession shall (1) in a chapter 7 liquidation case and, if the
court directs, in a chapter 11 reorganization case file and transmit to the
United States trustee a complete inventory of the property of the debtor
within 30 days after qualifying as a trustee or debtor in possession, unless
such an inventory has already been filed; (2) keep a record of receipts and
the disposition of money and property received; (3) file the reports and
summaries required by § 704(8) of the Code
which shall include a statement, if payments are made to employees, of the
amounts of deductions for all taxes required to be withheld or paid for and in
behalf of employees and the place where these amounts are deposited; (4) as
soon as possible after the commencement of the case, give notice of the case
to every entity known to be holding money or property subject to withdrawal or
order of the debtor, including every bank, savings or building and loan
association, public utility company, and landlord with whom the debtor has a
deposit, and to every insurance company which has issued a policy having a
cash surrender value payable to the debtor, except that notice need not be
given to any entity who has knowledge or has previously been notified of the
case; (5) in a chapter 11 reorganization case, on or before the last day of
the month after each calendar quarter during which there is a duty to pay fees
under 28 U.S.C. § 1930(a)(6), file and transmit to the United States trustee
a statement of any disbursements made during such calendar that quarter and of
any fees payable under U.S.C. § 1930(a)(6) for that quarter.
(b) Chapter 12 trustee and debtor in possession.
In a chapter 12 family farmer's debt adjustment case, the debtor in possession
shall perform the duties prescribed in clauses (2)-(4) of subdivision (a) of
this rule and, if the court directs, shall file and transmit to the United
States trustee a complete inventory of the property of the debtor within the
time fixed by the court. If the debtor is removed as debtor in possession, the
trustee shall perform the duties of the debtor in possession prescribed in
this paragraph.
(c) Chapter 13 trustee and debtor.
(1) Business cases. In a chapter 13 individual's debt adjustment
case, when the debtor is engaged in business, the debtor shall perform the
duties prescribed by clauses (2)-(4) of subdivision (a) of this rule and, if
the court directs, shall file and transmit to the United States trustee a
complete inventory of the property of the debtor within the time fixed by
the court.
(2) Nonbusiness cases. In a chapter 13 individual's debt adjustment
case, when the debtor is not engaged in business, the trustee shall perform
the duties prescribed by clause (2) of subdivision (a) of this rule.
(d) Transmission of reports. In a chapter 11
case the court may direct that copies or summaries of annual reports and
copies or summaries of other reports shall be mailed to the creditors, equity
security holders, and indenture trustees. The court may also direct the
publication of summaries of any such reports. A copy of every report or
summary mailed or published pursuant to this subdivision shall be transmitted
to the United States trustee.
Rule 2016. Compensation for Services Rendered and
Reimbursement of Expenses
(a) Application for compensation or reimbursement.
An entity seeking interim or final compensation for services, or reimbursement
of necessary expenses, from the estate shall file an application setting forth
a detailed statement of (1) the services rendered, time expended and expenses
incurred, and (2) the amounts requested. An application for compensation shall
include a statement as to what payments have theretofore been made or promised
to the applicant for services rendered or to be rendered in any capacity
whatsoever in connection with the case, the source of the compensation so paid
or promised, whether any compensation previously received has been shared and
whether an agreement or understanding exists between the applicant and any
other entity for the sharing of compensation received or to be received for
services rendered in or in connection with the case, and the particulars of
any sharing of compensation or agreement or understanding therefor, except
that details of any agreement by the applicant for the sharing of compensation
as a member or regular associate of a firm of lawyers or accountants shall not
be required. The requirements of this subdivision shall apply to an
application for compensation for services rendered by an attorney or
accountant even though the application is filed by a creditor or other entity.
Unless the case is a chapter 9 municipality case, the applicant shall transmit
to the United States trustee a copy of the application.
(b) Disclosure of compensation paid or promised to
attorney for debtor. Every attorney for a debtor, whether or not the
attorney applies for compensation, shall file and transmit to the United
States trustee within 15 days after the order for relief, or at another time
as the court may direct, the statement required by §
329 of the Code including whether the attorney has shared or agreed to
share the compensation with any other entity. The statement shall include the
particulars of any such sharing or agreement to share by the attorney, but the
details of any agreement for the sharing of the compensation with a member or
regular associate of the attorney's law firm shall not be required. A
supplemental statement shall be filed and transmitted to the United States
trustee within 15 days after any payment or agreement not previously
disclosed.
(c) Disclosure of compensation paid or promised to
bankruptcy petition preparer. Every bankruptcy petition preparer for a
debtor shall file a declaration under penalty of perjury and transmit the
declaration to the United States trustee within 10 days after the date of the
filing of the petition, or at another time as the court may direct, as
required by § 110(h)(1). The declaration must
disclose any fee, and the source of any fee, received from or on behalf of the
debtor within 12 months of the filing of the case and all unpaid fees charged
to the debtor. The declaration must describe the services performed and
documents prepared or caused to be prepared by the bankruptcy petition
preparer. A supplemental statement shall be filed within 10 days after any
payment or agreement not previously disclosed.
Rule 2017. Examination of Debtor's Transactions with
Debtor's Attorney
(a) Payment or transfer to attorney before order for
relief. On motion by any party in interest or on the court's own
initiative, the court after notice and a hearing may determine whether any
payment of money or any transfer of property by the debtor, made directly or
indirectly and in contemplation of the filing of a petition under the Code by
or against the debtor or before entry of the order for relief in an
involuntary case, to an attorney for services rendered or to be rendered is
excessive.
(b) Payment or transfer to attorney after order for
relief. On motion by the debtor, the United States trustee, or on the
court's own initiative, the court after notice and a hearing may determine
whether any payment of money or any transfer of property, or any agreement
therefor, by the debtor to an attorney after entry of an order for relief in a
case under the Code is excessive, whether the payment or transfer is made or
is to be made directly or indirectly, if the payment, transfer, or agreement
therefor is for services in any way related to the case.
Rule 2018. Intervention; Right to Be Heard
(a) Permissive intervention. In a case under
the Code, after hearing on such notice as the court directs and for cause
shown, the court may permit any interested entity to intervene generally or
with respect to any specified matter.
(b) Intervention by Attorney General of a State.
In a chapter 7, 11, 12, or 13 case, the Attorney General of a State may appear
and be heard on behalf of consumer creditors if the court determines the
appearance is in the public interest, but the Attorney General may not appeal
from any judgment, order, or decree in the case.
(c) Chapter 9 municipality case. The Secretary
of the Treasury of the United States may, or if requested by the court shall,
intervene in a chapter 9 case. Representatives of the state in which the
debtor is located may intervene in a chapter 9 case with respect to matters
specified by the court.
(d) Labor unions. In a chapter 9, 11, or 12
case, a labor union or employees' association, representative of employees of
the debtor, shall have the right to be heard on the economic soundness of a
plan affecting the interests of the employees. A labor union or employees'
association which exercises its right to be heard under this subdivision shall
not be entitled to appeal any judgment, order, or decree relating to the plan,
unless otherwise permitted by law.
(e) Service on entities covered by this rule.
The court may enter orders governing the service of notice and papers on
entities permitted to intervene or be heard pursuant to this rule.
Rule 2019. Representation of Creditors and Equity
Security Holders in Chapter 9 Municipality and Chapter 11 Reorganization Cases
(a) Data required. In a chapter 9 municipality
or chapter 11 reorganization case, except with respect to a committee
appointed pursuant to § 1102 or 1114
of the Code, every entity or committee representing more than one creditor or
equity security holder and, unless otherwise directed by the court, every
indenture trustee, shall file a verified statement setting forth (1) the name
and address of the creditor or equity security holder; (2) the nature and
amount of the claim or interest and the time of acquisition thereof unless it
is alleged to have been acquired more than one year prior to the filing of the
petition; (3) a recital of the pertinent facts and circumstances in connection
with the employment of the entity or indenture trustee, and, in the case of a
committee, the name or names of the entity or entities at whose instance,
directly or indirectly, the employment was arranged or the committee was
organized or agreed to act; and (4) with reference to the time of the
employment of the entity, the organization or formation of the committee, or
the appearance in the case of any indenture trustee, the amounts of claims or
interests owned by the entity, the members of the committee or the indenture
trustee, the times when acquired, the amounts paid therefor, and any sales or
other disposition thereof. The statement shall include a copy of the
instrument, if any, whereby the entity, committee, or indenture trustee is
empowered to act on behalf of creditors or equity security holders. A
supplemental statement shall be filed promptly, setting forth any material
changes in the facts contained in the statement filed pursuant to this
subdivision.
(b) Failure to comply; effect. On motion of any
party in interest or on its own initiative, the court may (1) determine
whether there has been a failure to comply with the provisions of subdivision
(a) of this rule or with any other applicable law regulating the activities
and personnel of any entity, committee, or indenture trustee or any other
impropriety in connection with any solicitation and, if it so determines, the
court may refuse to permit that entity, committee, or indenture trustee to be
heard further or to intervene in the case; (2) examine any representation
provision of a deposit agreement, proxy, trust mortgage, trust indenture, or
deed of trust, or committee or other authorization, and any claim or interest
acquired by any entity or committee in contemplation or in the course of a
case under the Code and grant appropriate relief; and (3) hold invalid any
authority, acceptance, rejection, or objection given, procured, or received by
an entity or committee who has not complied with this rule or with §
1125(b) of the Code.
Rule 2020. Review of Acts by United States Trustee.
A proceeding to contest any act or failure to act by the United States
trustee is governed by Rule 9014.
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