COMMENTS OF THE NACBA
Notice and Opportunity for Public Comment
Proposed Rule 3015.1 ( a ) provides that a single Local Form plan may be adopted by a district “ after public notice and opportunity for public comment . “ NACBA supports this requirement but believes that the Advisory Committee should provide more guidance on the notice and comment procedure . At a minimum , the Committee Note should state that the opt-out consideration and adoption of a Local Form should be conducted pursuant to Bankruptcy Rule 9029 . NACBA is concerned that some districts may take the view that Rule 9029 is not applicable if the district is adopting a form rather than a local rule . The adoption of a Local Form plan is a significant matter affecting chapter 13 practice and should be subject to the Rule 9029 requirements .
Proposed Rule 3015 ( c ) provides that the Official Form Chapter 13 Form must be used unless a district adopts a Local Form that complies with proposed Rule 3015.1 . Although perhaps implied in the rule amendments , NACBA believes the Advisory Committee should explicitly provide in the Committee Note that the district ’ s decision to opt out , not just the proposed Local Form , should be subject to notice and comment . Districts should be required to include in the notice seeking comment a copy of the proposed Official Form Chapter 13 Form , and the notice should solicit comment on the advisability of adopting a proposed Local Form rather than the Official Form .
While many districts include consumer debtor attorney representation on local rules committees , NACBA does not believe that this is done in all districts . Once again , the significance of the Local Form adoption on debtors ’ rights and chapter 13 practice warrants a departure from local procedures , at least for those districts that do not actively incorporate consumer attorney representation on local rules committees . NACBA urges the Advisory Committee to indicate in the Committee Note or in some other form the expectation that districts will solicit participation from the consumer debtor bar for any committee that is formed to advise the court in the development of a Local Form . Note also , that including representation from the consumer bar on a committee is just the first step in assuring that debtors ’ rights are protected in the drafting of a local model plan . See paragraph 7 below , Development of Local Model Plans , addressing the results of NACBA ’ s recent survey .
NACBA is also concerned that the truncated schedule the Advisory Committee is using for adoption of the proposed rules is causing local districts to rush to adopt a Local Form without engaging in thoughtful development of a form and careful consideration of comments . By its own actions spanning several years , the Advisory Committee is well aware that the subject of the proposed rules , including the adoption of an Official Form Chapter 13 Plan and the opt-out compromise , have been controversial . Despite this unsettled history , the Advisory Committee is expecting local districts to decide whether to opt-out , develop a Local Form , provide notice , solicit comment , review comment , make final changes , and obtain approval from the District
12 CONSUMER BANKRUPTCY JOURNAL Winter 2016 National Association of Consumer Bankruptcy Attorneys