COMMENTS OF THE NACBA
COMMENTS OF THE
NATIONAL ASSOCIATION OF CONSUMER BANKRUPTCY ATTORNEYS
Regarding the Proposed Amendments to FRBP 3015 and New Rule 3015.1
October 3, 2016
Summary
NACBA appreciates the opportunity to comment on the new “compromise” proposal regarding
form chapter 13 plans that was first advanced by a group of creditor attorneys and bankruptcy
judges and that has now been proposed, with modifications, by the Advisory Committee. These
comments follow up and expand on the testimony offered to the Committee on September 27,
2016, by Jenny Doling, Norma Hammes, and James “Ike” Shulman.
From our perspective, the proposal is not a compromise, but rather embodies a concept that is
radically different from the original proposal. To the extent some NACBA members supported
the original proposal for a national form plan, it was because they believed that many unofficial
local form chapter 13 plans had provisions that infringed on the rights of debtors and that a
national plan would eliminate that problem. The “compromise” goes in exactly the opposite
direction, and would have the effect of giving an official imprimatur to those local plans, which
they have never had before. Indeed, because almost all bankruptcy courts have adopted local
chapter 13 plans, that is almost the only thing that the proposal will do with respect to plans. It
does not even require the uniformity of format that was one of the principal objectives of the
proposal for a national plan. There is simply no reason why the rules should legitimize plans that
in some cases do not even comply with the law.
As is evident from our earlier comments and the testimony of our witnesses, we are particularly
concerned that any form plan not limit the debtor’s fundamental right to propose a plan under §
1321 of the Code. It is the debtor, not the Court or the trustee, who is to propose a plan, and that
plan may have any appropriate provision not inconsistent with title 11. At a minimum, if a rule
to require use of local forms is adopted, the comments should make clear that no local plan can
limit the debtor’s substantive rights or the debtor’s right to propose and obtain timely
confirmation of a plan that contains alternative provisions not inconsistent with the Code or
Rules. Further, the comments should emphasize that there should be no presumption that the
provisions of a form plan are in some way better than other provisions, nor should there be
additional procedural hurdles, such as special hearings not required when the form plan is
proposed, to prove that nonstandard provisions are proper. In particular, a debtor should, without
question, be able to use provisions from the proposed national form that have been thoroughly
debated and approved by the Advisory Committee.
National Association of Consumer Bankruptcy Attorneys
1
Winter 2016
CONSUMER BANKRUPTCY JOURNAL
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