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RULE 3015-2. CHAPTER 13 - GENERAL

Chapter: 
PART III. CLAIMS AND DISTRIBUTION TO CREDITORS AND EQUITY INTEREST HOLDERS; PLANS

A.      Form.  Chapter 13 plans shall be in the form set forth in Appendix"D."  Chapter 13 plans and amended plans are governed by Neb. R. Bank. P. 9013-1 and are treated as a “Motion” under that Rule.

B.      Notice in Chapter 13.

1.      Upon the filing of a Chapter 13 petition, the Clerk shall schedule a first meeting of creditors, as authorized by 11 U.S.C. § 341, and shall provide notice of the date and time of such meeting to the Chapter 13 trustee, the debtor, counsel for the debtor, and all parties listed on the Matrix filed with the petition.  The notice shall provide that if a Chapter 13 plan is filed with the petition, counsel for the debtor shall serve the plan with a resistance date of 14 days after the conclusion of the meeting of creditors.

2.      Counsel will not have the exact date of the meeting of creditors when the petition and plan are filed.  Therefore, the notice may state: “Any resistance to the plan must be filed no later than 14 days after the conclusion of the meeting of creditors.”

3.      If the plan is not filed with the petition, it shall be filed and served with an appropriate resistance date.  No resistance date required under Nebr. R. Bankr. P. 9013-1 shall be set for a date earlier than 14 days after the conclusion of the meeting of creditors.

C.      Pre-confirmation Adequate Protection and Lease Payments.

1.      The Chapter 13 plan shall provide that pre-confirmation adequate protection and lease payments made pursuant to § 1326(a)(1) are to be paid in the plan and through the Chapter 13 trustee.  The plan shall list the creditor’s name, address, last four digits of the account number, payment due date, and payment amount for each creditor receiving § 1326(a)(1) pre-confirmation adequate protection or lease payments.  The debtor must immediately commence plan payments to the trustee for the amounts necessary to pay these pre-confirmation payments plus statutory trustee’s fees.  The debtor shall not reduce plan payments to the trustee under § 1326(a)(1)(B) and (C) without an order of the Court.  A creditor may file a motion requesting a change in the amount of the § 1326(a)(1) pre-confirmation payments pursuant to § 1326(a)(3).  Until the creditor’s motion is resolved, the Chapter 13 trustee shall continue to make the payments proposed to such creditor as set forth in the plan.

2.      The Chapter 13 trustee is authorized to pay pre-confirmation payments made pursuant to § 1326(a)(1) and set forth in the proposed plan without entry of an order of the Court.  No payments shall be made to a creditor until a proof of claim is filed.  Pre-confirmation payments shall be made to the creditors within 30 days of the filing of the proof of claim unless sufficient funds have not been paid by the debtor to the trustee in order to make such payments within seven working days prior to the end of such 30-day period.  The Chapter 13 trustee is authorized to deduct from an allowed claim, as of the date of payment, each pre-confirmation payment made by the trustee pursuant to § 1326(a)(1).

3.      If a creditor obtains an order for payments under § 1326(a)(3) and the case is dismissed prior to confirmation, the creditor shall receive from the trustee any payments due and owing upon dismissal of the case from funds collected by the trustee under § 1326(a)(1)(A) less statutory trustee fees and allowed § 503(b) claims including the debtor’s attorney fees.

D.      Objection to Confirmation.

1.      If a timely objection to confirmation is filed, the debtor shall file with the Court a response within 14 days after the objection to confirmation deadline.  All responses shall set forth specific factual and legal details and conclude with a request for relief.  Any response that fails to include specific factual and legal details will not be considered.

a.      If the debtor fails to file a timely response to the objection to confirmation or files a response that lacks specific factual and legal details, the Court will enter an order sustaining the objection and denying confirmation of the debtor’s plan, and the debtor will be ordered to file an amended plan within 21 days.  Further, repeated failure by the debtor to file a response to plan objections may result in dismissal of the bankruptcy case for unreasonable delay that is prejudicial to creditors and/or for failure to confirm a plan.

b.      Upon timely filing a proper response, debtor’s attorney shall immediately contact the objecting party and attempt to resolve the objection.

c.      If the objection to confirmation is settled, the parties must notify the Courtroom Department of the settlement or file a withdrawal of the objection or an amended plan prior to the expiration of the debtor’s response deadline.  All confirmation orders submitted shall be in conformity with Appendix "E."  No confirmation order shall be entered before the meeting of creditors has been concluded.

d.      If the debtor’s attorney and the objecting party are unable to resolve the objection despite all good faith efforts, any party may file a Certification and Request for Confirmation Trial in the form of Appendix "O."  THE COURT WILL NOT SET A CONFIRMATION TRIAL UNTIL THE CERTIFICATION AND REQUEST IS FILED.  If a proper certification and request is filed, the Court will set a confirmation trial date at which all parties and their attorneys and witnesses shall appear and live testimony shall be presented.  The only issues to be addressed at trial shall be those specifically set forth in the plan objection(s) and debtor’s response.

e.     If a Certification and Request for Confirmation Trial is not filed within 70 days after the deadline for filing a response to a plan objection, confirmation will be denied and the Court may consider dismissing the case for failure to confirm a plan without further notice or hearing.

2.      In a Chapter 13 case, the debtor must file the Certification by Debtor in Support of Confirmation Appendix "H" with the Court at least seven days prior to the expiration of the Objection to Confirmation deadline.  A certification must be filed prior to confirmation of all original plans, all amended plans, and all post-confirmation amended plans.  If the certification is not filed with the Court, the confirmation or approval may be denied.  The certification should not be filed before the applicable plan is filed.

3.      If no timely objections to confirmation are filed, the Clerk shall enter a text-only order confirming the plan.  If counsel for the debtor, after consultation with the trustee or a creditor, desires specific order language agreed to by the parties, counsel shall submit such an order.  All confirmation orders submitted shall be in conformity with the Local Rules.

E.      Extension of Time to File Plan.  If an extension of time to file a plan is granted and the plan is not filed and noticed at least 14 days prior to the first date set for the meeting of creditors, the Chapter 13 trustee will continue the meeting of creditors.  Notice of the rescheduled meeting of creditors shall be sent by counsel for the debtor to all creditors and parties requesting notice and a certificate of service shall be filed with the Court.  If the plan is not filed at least 14 days prior to the second date set for the meeting of creditors, the Chapter 13 trustee, with authorization from the United States Trustee, will file a Notification of Debtor’s Failure to Comply and the case will be dismissed without further notice or hearing.

F.      Tax Returns.  A debtor operating under a confirmed plan must file post-petition tax returns, both state and federal, and pay post-petition taxes, both state and federal, on a timely basis.  The debtor shall comply with all requirements of Title 26 of the United States Code or applicable state tax code.  Failure to file post-petition federal or state tax returns or failure to timely pay post-petition federal or state tax liabilities in the manner prescribed by Title 26 or applicable state law, absent a showing of good cause, may be considered a material default of a confirmed plan.  All post-petition federal and state tax returns and all post-petition federal and state tax liabilities are included in this paragraph, including returns or liabilities for which the debtor is a responsible party under 26 U.S.C. § 6672 or similar state laws.

G.      Employer Deduction.  To enhance the likelihood that a debtor will successfully complete a plan, each plan shall provide for an employer wage deduction and transmission to the Chapter 13 trustee unless the debtor, through counsel, files a detailed motion concerning the reason the debtor does not desire an employer deduction.  Such motion shall be served upon the trustee with an appropriate resistance date required by Neb. R. Bankr. P. 9013-1.  If the trustee does not object, the motion will be granted by a text-only order in the electronic docketing system.  If the trustee objects, a hearing shall be scheduled.

H.      Employment of Attorney for the Debtor.  No application for appointment as attorney for a Chapter 13 debtor is required.

I.      Discharge.  Within 14 days after the trustee files the “Certificate of Final Payment,” the debtor must file with the Court the Chapter 13 Debtor’s Certifications Regarding Domestic Support Obligations and Section 522(q) Appendix "M" or the case may be closed without a discharge.  In such an event, a Motion to Reopen (with payment of the full filing fee) shall be required to permit filing of the certificate and entry of the discharge.

J.      Amendments to Plans.  Prior to confirmation, a proposed Chapter 13 plan shall be deemed superseded by a subsequently-filed amended plan.  Except as provided in subparagraph K, all amended plans, whether pre-confirmation or post-confirmation, must be served on all creditors and parties in interest with an appropriate resistance date pursuant to Neb. R. Bankr. P. 9013-1.  No resistance date required under Neb. R. Bankr. P. 9013-1 shall be set for a date earlier than 14 days after the conclusion of the meeting of creditors.  If an amended plan is filed while there are objections pending to a previously-filed plan, whether or not a hearing has been scheduled, counsel for the debtor is required to notify those parties that have filed objections that an amended plan has been filed and that no further action will be taken on the previously-filed plan.  Interested parties may enter into stipulations or agreements pertaining to plan objections, however, the Court will not take any action in response to the filing of such stipulations or agreements.  Any agreements or stipulations resolving plan objections constitute modifications to the plan and must be incorporated into an amended plan with notice and opportunity to object provided to all creditors and parties in interest as required by Fed. R. Bankr. P. 2002.

K.      Limited Motion to Modify a Chapter 13 Plan After Confirmation.

1.      After confirmation, the debtor may elect to utilize the Limited Motion to Modify Appendix "P" for the purpose of curing plan payment delinquencies, abating future payments, or increasing payments and/or the base amount of the plan.  The Limited Motion to Modify is available as an alternative to filing a full amended plan in the form required by Appendix "D."   The Limited Motion to Modify may NOT be used to REDUCE (a) plan payments permanently; (b) the base amount of the plan or; (c) the term of the plan (Applicable Commitment Period).  Any change to the treatment of a creditor must be provided for in a full amended plan as set forth in Appendix "D."

2.      The Limited Motion to Modify shall be governed by Neb. R. Bankr. P. 9013-1. If no objection to the Limited Motion to Modify is filed, the Court will approve the motion.  If an objection is filed, the debtor must file a response within 14 days after the objection deadline.  If no response is filed by the debtor, the Court will deny the motion.  If a response is filed by the debtor, the objection to the Limited Motion to Modify shall proceed in the manner set forth in Neb. R. Bankr. P. 3015-2(E) .

3.      When the Limited Motion is filed, the debtor’s attorney must calculate the remaining months available for plan payments within the maximum plan term of 60 months from the date of confirmation.  This calculation can be made as follows:

Month of confirmation plus 60 months = plan completion month.

Plan completion month minus month in which regular plan payments will resume = remaining available months.

              After calculating the “remaining available months,” the total dollar amount needed to complete the plan should be divided by the remaining available months to determine whether an increase in the monthly payment is necessary.  The base amount of the plan is the TOTAL of all payments required to be made under the plan.  When the payment is increased, it may be necessary to increase the base amount of the plan.  Upon request, the trustee’s office will supply the exact amount of money previously paid by the debtor so as to allow correct calculation of the new base amount.