United States: Change Is Coming! (To The Federal Rules Of Civil Procedure)

Effective December 1, important changes are coming to the Federal Rules of Civil Procedure, including:

  • Eliminating the certificate of service for ECF-filed materials;
  • Mandating electronic service and filing, including of complaints, for persons represented by counsel;
  • Establishing a national signature standard for electronic filing systems; and
  • Updating the class action rule, with a focus on proposed class settlements.

Changes to the appellate, criminal, and bankruptcy rules are also going into effect. In large part these changes conform the respective rules to the updated FRCP. The following focuses primarily on the changes to the FRCP.

Summary

On December 1, multiple amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure (FRAP, FRBP, FRCP, and FRCrP respectively) go into effect. Due to the changes to the federal rules, local rules may be revised as well. For example, the Eastern District of Virginia, Eastern District of North Carolina, and Northern District of New York, among others, have pending amendments to their local rules.

Electronic Filing, Service, and Signature Requirements

Say goodbye to certificates of service. In perhaps the most impactful amendment to FRCP, the amended 5(d)(1) provides that no certificate of service is required when a paper is served though the court's e-filing system. For documents filed but not served via the e-file system, a certificate of service must be provided within a reasonable time after service. These amendments also eliminate the requirement to obtain consent for electronic service when papers are served, using the court's e-filing system, on registered users of that system.

The amendment of FRCP 5(d)(1) mandates electronic filing of materials, including complaints, by represented persons. The new rule permits exceptions for good cause or for local rules that allow or require nonelectronic filing. The new rule also permits a court to allow pro se litigants to use electronic filing by order or local rule. (Pro Tip: Avoid the humiliation of having a paper complaint filing bounced by the clerk. Be sure to check your local rules for any deviation from the new e-filing requirement.)

The new FRCP 5(d)(3)(C) sets forth a national signature provision for papers filed using the e-filing system. The key takeaway is that an electronic signature requires an authorized filing through a person's e-filing account, together with the same person's name on a signature block. The amended rule does not provide detail on what information is required to be in the signature block. (Pro Tip: The electronic signature must match the account being used for the filing.)

Class Action Changes

Another significant change comes to FRCP 23, governing class action cases. The proposed rule amends the methods of notice to (b)(3) class members to include "electronic means, or other appropriate means." (Pro Tip: This update will allow notice to be given by email, or possibly even text message, which could be especially important in class action cases when limited contact information is known about potential class members.) The proposed rule also amends subsection (e) to require additional information to determine whether to give notice of the proposed settlement to the class. If the court determines that it's able to both "approve the proposal under Rule 23(e)(2)" and "certify the class for purposes of judgment," the court will direct notice to all class members who would be bound by the settlement.

Amendments to subsection (e) expand on the "fair, reasonable, and adequate" evaluation currently applied to class settlements by providing factors for courts to consider when evaluating proposed settlement agreements.

A final amendment to subsection (e) requires additional specificity when objecting to a proposed settlement agreement. Further, it requires court approval for payment in connection with foregoing or withdrawing a challenge to a proposed settlement. The amendments also clarify that a decision to send notice of a proposed settlement to the class under FRCP 23(e)(1) is not appealable under FRCP 23(f).

Modernized Language – Replacement of "Supersedeas Bond"

FRCP 62 and FRCP 65.1 are being updated to replace the term "Supersedeas Bond" with "bond or other security." The change also extends the automatic stay to enforce a judgment to 30 days.

Changes to the Bankruptcy, Appellate, and Criminal Rules

Most of the changes to the bankruptcy, appellate, and criminal rules conform the rules to the updated FRCP. For example, FRAP 25 and 26 and FRBP 5005 and 8011 were amended to conform to the changes in FRCP 5 discussed above. Further, FRCrP 45 was amended to remove reference to FRCP 5 and FRCrP 49 was written anew, outlining service requirements for criminal cases. The appellate and bankruptcy rules were also amended to replace "Supersedeas Bond." In addition to conforming and related changes, there are several unique amendments, which are discussed below.

Home Mortgage Changes in Chapter 13 Bankruptcy

FRBP 3002.1, which applies to Chapter 13 home mortgage claims and underwent significant changes in 2016, is being amended again. First, the change provides flexibility for payment change notices ("PCNs") on home equity lines of credit ("HELOCs") by allowing the notice requirements to be amended by court order. This is an important change for loan servicers with HELOCs in their portfolio as the default rule requires a PCN at least twenty-one (21) days before the new payment amount is due. This can become an especially onerous requirement for HELOC servicers, as HELOCs often have minor monthly payment changes. Filing motions for a modified notice requirement in all (or most) Chapter 13 cases with HELOCs will also be burdensome, but provides some relief for HELOC servicers.

Second, the new rule creates a procedure for objecting to PCNs. The new objection process allows a payment change, noticed by a timely-filed PCN, to go into effect if no objection is filed by the day the new amount is due, unless ordered otherwise by the court. This change provides certainty to mortgage servicers by allowing them to rely on a PCN when an objection is not filed prior to the new payment amount becoming effective.

Third, a final change to FRBP 3002.1 amends subsection (e) to expand the parties who may file a motion for determination of fees, expenses, or charges. The new rule allows a motion by party in interest, rather than only the debtor or trustee as permitted by the previous version of the rule.

Other Bankruptcy Rule Amendments

FRBP 8002, 8011, 8013, 8015, 8016, 8017, and 8022 were amended, and a new appendix (Part VIII Appendix) was added, to conform to changes to the FRAP, which went into effect December 1, 2016. These changes include inmate filing provisions, changes to time limit references (from page limits to word count limits), and updates to timing and length requirements for amicus briefs. The new Part VIII Appendix collects all the page-to-word limit changes in a single table. The changes also incorporate a new limitation to amicus briefs, which is discussed in the appellate section below.

Finally, a new bankruptcy rule, 8018.1, authorizes a district court to treat a judgment of a bankruptcy court as proposed findings of fact and conclusions of law when the court finds the bankruptcy court lacked constitutional authority to enter a final judgment.

Appellate Changes

As mentioned above, a new limit is being placed on briefs of amicus curiae. FRAP 29 was amended to limit briefs of amicus curiae that would result in a judge's disqualification and gives federal courts of appeals authority to strike or prohibit such amicus briefs. While several courts of appeals previously had local rules in place containing this restriction, the amendment makes this rule applicable to all federal courts of appeals.

FRAP 28.1 and 31 were amended to extend the time to file an appellate reply brief to 21 days. Further, FRAP 41 was amended to require an order to stay a mandate and provides that a mandate stayed pending a petition for certiorari must issue immediately upon certiorari denial.

The Troutman Sanders' Consumer Financial Services Law Monitor blog offers timely updates regarding the financial services industry to inform you of recent changes in the law, upcoming regulatory deadlines and significant judicial opinions that may impact your business. To view the blog, click here

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