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In August 2012, the Advisory Committee on Bankruptcy Rules of
the Judicial Conference of the United States (the "Advisory
Committee") announced proposed amendments to the Federal Rules
of Bankruptcy Procedure (the "Bankruptcy Rules") and the
Official Bankruptcy Forms. Changes have been proposed to Bankruptcy
Rules 1014, 7004, 7008, 7012, 7016, 7054, 8001–8028, 9023,
9024, 9027, and 9033, and Official Forms 3A, 3B, 6I, 6J, 22A-1,
22A-2, 22B, 22C-1, and 22C-2, which include the "means
test" forms. Changes have also been proposed to Appellate Rule
6, concerning appeals to the federal circuit courts of appeal in
bankruptcy cases.
Among the proposed amendments are changes to Bankruptcy Rules
7008, 7012, 7016, 9027, and 9033 in response to the U.S. Supreme
Court's ruling in Stern v. Marshall, 564 U.S. 2 (2011). In
Stern, the Supreme Court held that a non-Article III bankruptcy
judge is constitutionally prohibited from entering a final judgment
on a debtor's common-law counterclaim against a creditor, even
though 28 U.S.C. § 157(b)(2)(C) specifically designates
"counterclaims by the estate against persons filing claims
against the estate" as being within a bankruptcy court's
"core" jurisdiction. Under the proposed amendments: (i)
the terms "core" and "non-core" will be removed
from Rules 7008, 7012, 9027, and 9033 (governing, respectively,
pleadings, defenses and objections, removal, and proposed findings
and conclusions in noncore proceedings) to avoid possible confusion
in light of Stern; (ii) parties in all adversary proceedings will
be required to state whether they consent to entry of final orders
or judgment by the bankruptcy judge; and (iii) Rule 7016, which
governs pre-trial procedures, will be amended to direct bankruptcy
courts to decide which course of action to pursue in adversary
proceedings (e.g., to enter a final judgment or submit proposed
findings of fact and conclusions of law).
According to the Advisory Committee, the amendments are not
intended to take a position on the question of whether party
consent is adequate to permit a bankruptcy judge to enter a final
judgment in a proceeding that would otherwise fall outside the
scope of the judge's adjudicatory authority. The proposed
changes, the Advisory Committee wrote, are "designed to frame
the question of adjudicatory authority and allow the bankruptcy
judge to determine the appropriate course of action. The court must
decide whether to hear and finally adjudicate the proceeding,
whether to hear it and issue proposed findings and conclusions, or
whether to take some other action."
The proposed rule amendments would become effective December 1,
2014, if: (i) they are approved, with or without revision, by the
relevant advisory committee, the Committee on Rules of Practice and
Procedure, the Judicial Conference, and the Supreme Court; and (ii)
Congress does not act to defer, modify, or reject them. The
revisions to the Official Bankruptcy Forms would become effective
December 1, 2013, if they are approved by the rules committee and
the Judicial Conference. The proposed amendments, the rules
committee reports explaining the proposed changes, and other
information are posted on the Judiciary's web site at http://www.uscourts.gov/
uscourts/rules/rules-published-comment.pdf.
All comments to the proposed changes must be submitted no later
than February 15, 2013. Comments may be submitted electronically to
rules_comments@ao.uscourts.gov or to the Committee on Rules of
Practice and Procedure, Administrative Office of the United States
Courts, Suite 7-240, Washington, D.C. 20544.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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