Bankruptcy Forms Changes Effective December 1, 2015
New Forms. Most Official Bankruptcy Forms have been replaced with substantially revised, reformatted and renumbered versions effective December 1, 2015. The Judicial Conference approved the revised forms on September 17, 2015. These changes are the third installment in the Bankruptcy Rules Advisory Committee’s multi-year forms modernization project. Some forms are entirely new, some are replaced, and some have been changed only as to format and numbering. This year’s changes are by far the most extensive since BAPCPA.
Headline 1 – Forms I and J, Means Test, and Reaffirmation are Mostly Unchanged. These forms were revised in previous years. Forms I and J were “modernized” effective December 1, 2013, along with the appellate, fee waiver and fee installment forms. Forms 22A, 22B, and 22C (“means test”) were “modernized” December 1, 2014. Schedule J-2 is a new form to be completed for a separated spouse who is debtor 2; that form is discussed below.
Headline 2 – No National Chapter 13 Plan Form (Yet). CIN (Best Case publisher) reports that it expects a national plan form in December 2016.
Headline 3 – Mortgage Proof of Claim Requires Payment History. A creditor that claims a security interest in property that is the debtor’s principal residence must file Form 410A with its proof of claim. That form requires the claimant to provide a loan history that reveals when payments were received, how they were applied, when fees and charges were incurred, and when escrow charges were satisfied, including all transactions on the claim from the first date of default to the petition date. The first date of default is the first date on which the borrower failed to make a payment in accordance with the terms of the note and mortgage, unless the note was subsequently brought current with no principal, interest, fees, escrow payments, or other charges immediately payable.
Form 410A contains so many columns that they are lettered up to Q. The columns are divided into three groups.
The first group reports account activity. It includes column A date, B contractual payment amount, C funds received, D amount incurred, E description, and F contractual due date.
The second group reports how funds were applied/amount incurred. It includes column G principal interest and past due balance, H amount to principal, I amount to interest, J amount to escrow, K amount to fees or charges, and L unapplied funds.
The third group reports balance after amount received/incurred. It includes column M principal balance, N accrued interest balance, O escrow balance, P fees/charges balance, and Q unapplied funds balance.
Form 410A replaces Form 10A, which was revolutionary when it appeared in 2011. 10A required specific information about principal and interest due as of the petition date; prepetition fees, expenses, and charges; and amount necessary to cure default as of the petition date. However, 10A presented information in the form of summaries and conclusions. If 10A reported that one payment was delinquent, that payment may have been missed last month or a year ago. By contrast, Form 410 requires a detailed payment history.
The standardization of payment histories required by Form 410A will provide many benefits. In the past, every mortgage servicer used a different format, most of which contained indecipherable codes and were inscrutable to debtors’ attorneys and even more so to clients. The inability of debtors to understand the histories was particularly problematic, because they were the ones who needed to identify the payments that they thought they had made that did not appear on the histories.
Judging from how long creditors’ counsel have usually taken to obtain payment histories when requested (often weeks), it is assumed that substantial human effort was required for the servicers to produce them. Presumably, now that servicers will be required to produce these histories for every proof of claim, they will develop automated procedures to create them. With that automation implemented, it is hoped that servicers can provide payment histories more easily and quickly in non-proof-of-claim situations.
Quicker, standardized payment histories will improve chapter 13 practice. If debtors’ attorneys can obtain them pre-confirmation, then fewer plans will need to be modified post-confirmation. If they are available more quickly after the filing of motions for relief from the automatic stay, then fewer hearings will need to be continued. If they are available more quickly after a creditor files a response disputing a notice of final cure payment, then fewer debtors will need to file a motion to determine that the mortgage is current.
Form 410A raises issues for parties other than just mortgage servicers. Must the form be filed with a mortgage proof of claim filed by a debtor’s attorney when the servicer fails to file? In the past, when even Form 10A required more information than was available to the debtor, some debtors’ attorneys just wrote a note on the form stating “data unavailable.” The form refers to security interests, not just mortgages. Must it be filed by homeowner associations and country treasurers, even though they do not have the data processing ability to create the form automatically?
Common Elements. Many of Committee Notes state that the forms are “revised as part of the forms modernization project, making [them] easier to read and, as a result, likely to generate more complete and accurate responses. Because the goals of the forms modernization project include improving the interface between technology and the forms so as to increase efficiency and reduce the need to produce the same information in multiple formats, many of the open-ended questions and multiple part instructions have been replaced with more specific questions,” in other words, to reduce false answers by disassembling questions.
New Terms. The new forms create some useful new terms. On the Schedules, “Debtor 1” and “Debtor 2” replace “Debtor” and “Joint Debtor”. “Individuals”, meaning people, are separated from “Non-Individuals”, meaning corporations and other fictional entities. In the verifications, “true and correct” replaces “to the best of my knowledge, information and belief”; this plainer language removes the implication that a wrong answer, especially an answer of “none”, is acceptable if the debtor is unsure.
Numbering. All forms have been renumbered. New official form numbers generally follow this pattern: 1XX for individual debtor case-opening forms, 2XX for non-individual debtor case-opening forms, 3XX for court notices and orders, and 4XX for other official forms. In most case, the “XX” is identical to the original form number. Director’s Bankruptcy Forms are in a separate collection. They are issued by the Director of the Administrative Office of the U.S. Courts. Their use may be required by local court rules or general orders, but otherwise they exist for the convenience of the parties. They have been changed from three- to four-digit numbers (sometimes followed by a letter), usually by adding a zero to the original form number. Officially, there is a B prefixed to all form number, as was true of previous versions.
Expanded Instructions. Official Instructions for Voluntary Petition for individual debtors (including schedules) are expanded from 14 to 42 pages. They are so long that they refer to themselves as a “booklet”.
There is a separate version of the petition/schedules instructions for non-individual debtors.
Maybe clients should now be directed to read the petition/schedules instructions. Besides being far more readable for non-attorneys, the instructions themselves suggest, “The instructions are designed to accompany the forms and are intended to help you understand what information is required to properly file.”
The instructions appearing on the most of the forms themselves have been shortened by moving parts to the general instructions, such as warnings to omit children’s names. However, the instructions incorporated into most of the forms are more comprehensive.
The new forms are simpler. Checkboxes, multiple-choice, and short blanks replace long narrative blanks. They use far plainer words. The sentences are shorter. They give more examples. They disassemble complex questions into their separate components.
Consolidation. Some forms and schedules are consolidated, reducing the number of signatures. Schedules A and B (real and personal property) are consolidated into Schedule A/B. Schedules E and F (priority and general unsecured are consolidated into Schedule E/F. Exhibits A (Securities and Exchange Commission), C (hazardous property), and D (credit counseling certification) are incorporated into the Petition.
Individual vs. Non-Individual Versions. Some forms are separated into individual and non-individual versions. This is true of the Voluntary Petition and Schedules. It is also true of the Statement of Financial Affairs. The effect is to eliminate whole sections for each group, easing the client reading process. The forms eliminate the corporate questions and many of the business questions from the individual forms. They remove the individual and consumer questions from the non-individual versions. Each version removes inapplicable verification sections. The non-individual forms parallel how businesses actually keep their financial records.
Readability. The forms will make it easier for attorneys to notice mistakes and omissions. They will be far easier for debtors to proof-read meaningfully. As a result, debtors can take a bigger role in identifying wrong answers and alerting the attorney.
The forms will reduce the burden on court personnel. Better understanding by debtors and attorneys will mean fewer wrong answers. That will help panel trustees, standing trustees, United States Trustee staff, court clerk staff, and judges and chambers staff. The biggest benefit will occur in pro se cases. The work product will also improve in cases filed by attorneys who rely heavily on forms filled out by clients. The forms may also help some debtors avoid nasty post-petition surprises by educating them not to file their cases to begin with.
Concerns. The new forms are longer, which will mean more printer ink. It will also mean longer sessions for clients to read and sign. Debtors’ attorneys may need to send schedules home with the clients to read overnight. By replacing narrative blanks with short blanks and checkboxes, the forms will make it harder for attorneys to explain and qualify answers, which will necessitate attachment pages. Checkboxes and multiple choices will prevent leaving answers blank, even if answered in another column. How to answer “unknown” is unknown. The revisions will make pro se filing more attractive; in fact sometimes it feels like that is the point.
Attorney Added Value. The new forms have eliminated some of debtors’ attorneys’ value. The forms explain questions to debtors, use plain wording, give examples, ask questions in multiple ways, and in effect cross-examine the debtor, making it harder for him to hide facts and double-talk answers. Our remaining added value lies in what have always been our most valuable services. We make sure that our issue-spotting is systematic instead of random. We conduct thorough and multiple client interviews. We examine extensive documents. We have judgment and experience to apply to decision-making. We do not let marketing considerations get in the way of warning clients about dangers. We manage our clients’ anxiety by being sympathetic, by explaining the process thoroughly, and by letting our experience give them confidence.
Whether to Use as Intake Forms. The forms are so readable that they might be used as intake forms, especially if accompanied by the new official instructions. However, the length will intimidate most debtors. Also, a debtor filling out by hand would miss the benefit of blanks that cross-populate forms. Those of us who have been resisting our preparation software’s online client-input service, on grounds of it being too self-service, may have to consider it for more sophisticated clients.
Alteration. Rule 9009 provides: “Except as otherwise provided in Rule 3016(d), the Official Forms prescribed by the Judicial Conference of the United States shall be observed and used with alterations as may be appropriate.” If Rule 9009 were amended to restrict alteration, that would end the practice of photo-shopping forms as a last resort to express an exception or explanation that refuses to fit in the blanks.
Bankruptcy Information Sheet Form 2010. This is the form given pursuant to 11 U.S.C. Sec. 342(b). It is expanded and is now actually informative to clients. Exceptions to discharge are clearly listed. The perjury warning is happily conspicuous. This is normally delivered to the client in the first attorney meeting, so it must be revise immediately.
Voluntary Petition for Individuals Form 101. The form separates first, middle, and last names. It specifies “write the name on your driver’s license”. Instead of “venue”, it asks “Why are you choosing this district?” It reminds debtor to bring a picture ID to the meeting with the trustee. It calls the meeting of creditors a “meeting with trustee”, which reduces anxiety. There are conspicuous check boxes such as, “I have not used any business names.” There are questions about hazardous property and situations requiring immediate attention. More details are collected regarding related cases. A debtor who checks the small business debtor/chapter 11 box must attach recent financial statements. Exhibits A, C, and D are now part of the Petition, not separate. Finally we can explain that debts are not primarily consumer but not primarily business either (e.g. tax) .
Eviction Judgments Forms 101A and B. These forms use far more words and questions to explain a confusing multi-level procedure that formerly was initiated by the debtor checking a short statement in the Petition. Filers (often pro se) are informed what they are getting into by checking the box, which presumably will discourage frivolous cases and benefit landlords.
Real and Personal Property Form 106A/B. Schedules A and B are combined into 7 categories that are intended to be more familiar to non-lawyers: real estate, vehicles, personal household items, financial assets, business-related property, farm and commercial fishing-related property, and other. Sub-categories and examples guard against omissions. However, short blanks and checkboxes do not leave room for legal descriptions, much less for explaining the basis of valuations (cf. non-individual Form 206, which asks valuation basis). If a debtor attorney needs to explain that a property was awarded to her former spouse in a divorce case but is being scheduled because she has not yet signed a quit-claim deed, then she will have to attach an explanation page. The form now asks vehicle mileages, but an approximation is allowed. Full value is separated from the value of the portion that the debtor owns.
The new property forms still miss some examples. The United States Trustee’s office asks us not to forget bitcoins, Pay Pal accounts, and gift cards.
Exemptions Form 106C. The form explicitly states the federal homestead exemption cap. It also describes the 1215-day exception. It provides checkboxes for 100% or stated amount, in accordance with Schwab vs. Reilly.
Secured Claims Form 106D. Questions about which debtor or both are liable, contingent or not, disputed or not, etc., are now checkboxes, so debtors’ attorneys accustomed to not answering those questions in routine cases will have to start. “Others to be notified”, such as attorneys and collection agencies, are separated into Part 2. Part 2 requires each collector to be matched with its creditor. This requirement will mean extra work for debtors’ attorneys but will benefit trustees, who must screen proofs of claim for duplicates.
Unsecured Claims Form 106E/F. As mentioned, this form combines priority and general unsecured debts. It provides a checkbox for whether a claim relates to a community debt. Like the secured debt schedule, it contains a separate Part 2 for collectors.
Executory Contracts and Unexpired Leases Form 106G. The new form omits some details that were required by its predecessor.
Co-Debtors Form 106 H. The form asks about community property, which will raise debtors’ attorneys’ awareness of issues that could arise when former spouses are liable on debtor’s debts by operation of law. Unfortunately, it does not call specific attention to debts incurred in Oklahoma by current or former spouses for necessities under 43 O.S. Section 209.1, so debtors’ attorneys need to probe for those during intake.
Expenses for Separated Debtor Form 106J-2. This new form will be used if debtors 1 and 2 have separate households. If debtors 1 and 2 have common dependents, they should report them on both J-1 and J-2. We are instructed not repeat on J-2 expenses that are reported on J-1. Income and expense schedules have their own declaration page. J-1 and J-2 ask whether each dependent lives with you.
Statement of Financial Affairs Form 107. The checkboxes and short blanks create challenges to giving full and accurate descriptions. However, Debtors no longer have to guess that “past 2 years” means “this year and the two full previous years”. Previous address information moves to the beginning. Part 3 asks whether the debts are primarily consumer, which will be a trap in non-consumer chapter 7 cases if the software does not automatically coordinate that with the Petition. Part 7 clarifies that payments on debts guaranteed or cosigned by an insider must be reported. Part 8 asks about storage units. Part 11 reduces from 6 to 4 years the period for reporting businesses. “What-for” checkboxes are provided for preference payments. There is a “reason for payment” blank for insider preferences. Addresses are required for courts in which actions are pending (more busywork). It is unknown whether date blanks will allow approximate date. The form eliminates the instruction that a married chapter 12 or 13 debtor must include answers as to her non-filing spouse. The gift threshold is changed to $600 per person and the gift look-back period is reduced from 2 years to 1. There are fewer business questions on this form, because the ones pertaining to non-individual debtors (such as withdrawals by officers) are eliminated.
Statement of Intention Form 108. 4 creditors now fit on the first page, so the form will often be one page only, as was the case when the form originally appeared. The form instructs debtors to send a copy of the form to all creditors and lessors listed on the form.
Voluntary Petition for Non-Individuals Form 201. This form requests the debtor’s website. References to Exhibits B, C, and D are eliminated, because they do not pertain to non-individuals. Questions that would pertain only to individuals are eliminated, such as the option of chapter 13, whether debts are primarily consumer, and references to spouse. Property requiring immediate attention asks for more information, such as insurance. The form requires the North American Industry Classification code for the debtor’s type of business; that code is familiar from corporate tax returns.
Property Form 206A/B. The form is divided into 11 parts. The parts are cash and cash equivalents, prepayments, accounts receivable, investments, inventory, farming and fishing assets, office furniture, fixtures and equipment, plus collectibles; machinery, equipment and vehicles; real property, general intangibles, and all other property. As mentioned, the form is designed to parallel how businesses actually keep their financial records.
Form 206A/B requires more details. Receivables are divided into face amount, doubtful and uncollectible. Inventory is divided into finished goods, raw material, and work in progress. The form asks whether property was purchased within 20 days, which is relevant to creditors’ reclamation rights. It asks for collectibles, including antiques and artwork. It asks for intangibles including websites and licenses. With regard to real estate, it asks the valuation method. The form asks about appraisals within 1 year. Depreciation and amortization schedules are requested; this addition will make it harder for debtors to believe they do not own property that they have depreciated on tax returns.
Secured Debts Form 206D. This form now requests each secured creditor’s website, email address, and lien priority.
Executory Contracts Form 206G. The form requests government contract number and term remaining.
SOFA Form 207. There are more questions about healthcare businesses. Freeing up the form from individual debtors, particularly consumer debtors, allows it to ask for more information.
Notice of Bankruptcy Case Forms 309A through I. This form contains similar information to the “341 notice” with which we are familiar, bit it is more spread out, and its formatting is completely different. Information is stated more clearly. A creditor unfamiliar with bankruptcy fundamentals will be more likely to notice and comprehend the automatic stay, procedures, and deadlines.
Notice of Final Cure Payment and Response of Creditor Forms 4100N and 4100R. These chapter 13 forms implement Rule 3002.1(f) and (g). They were effective in October 2015.
Chapter 11 Forms Not Changing. Chapter 11 Order and Notice for Hearing on Disclosure Statement, Order approving Disclosure Statement and Fixing time for Acceptance or Rejections, Ballot, Order Confirming Plan (Forms 312, 313, 314,315) were changed only as to numbering and style. According to the U.S. Courts website, Forms 25A (small business plan of reorganization), 25B (small business disclosure statement, 25C (small business monthly operating report, and 26 (report re entities in which estate holds an interest) are not changing this year but will likely do so in December, 2016 or later.
Other Forms Not Changing. The same is true of Forms 20A (notice of motion or objection) and 20B (notice of objection to claim).
Grace Period. This information will be out of date by the date it is presented. As of November 24, the situation in the Northern District is as follows: The judges will make the final call as we cross the December 1 threshold. If someone uses an old form after December 1, the clerk’s office will send out a standard notice for the first 30 days saying that they should use the new forms. After 30 days, the clerk’s office will issue deficiencies. If a new form is not used after the 30 days and a deficiency is not cured, the clerk’s office will let the judge know. If the judge wants the new form filed, there will be additional action; if not, there will probably be no action taken. The judges’ focus is to make sure that they have the information needed for the case to proceed. They could never force a new form or could require it on December 2, depending on the form, the information, etc.
Internet Links. The Official Forms with Committee Notes in one large .pdf are available at http://www.uscourts.gov/file/18166/download. A forms number conversion chart is available at http://www.uscourts.gov/file/18167/download. The individual instructions are available at www.uscourts.gov/file/18169/download. The non-individual instructions are available at www.uscourts.gov/file/18168/download. Single new forms can be reached by browsing to http://www.uscourts.gov/forms/bankruptcy-forms, then clicking on the old form, then clicking on the notification that effective December 1, 2015, this form is replaced by [new form number], and then downloading the new form from the resulting page. More direct access to single new forms will likely be installed by the time this paper is presented on December 3, 2015.