In bankruptcy court, like most courts, no two days are ever the same. However, a day in bankruptcy court can be peculiar to any attorney or judge because of the variety of bankruptcy cases individuals and businesses may file under the Bankruptcy Code. Before looking at a day in the life of a bankruptcy judge, it is important to first ask a few preliminary questions. For instance, what type of bankruptcy case has been filed? Has the bankruptcy case been filed by an individual or a company? The answers to these preliminary questions will determine the type of day a bankruptcy judge will have in court.
May 01, 2017
A Day in the Life of a U.S. Bankruptcy Judge
By Judge Kathy A. Surratt-States
Bankruptcy Basics
Bankruptcy cases are governed by the Bankruptcy Code, which is amended periodically, with the most recent amendments being the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).1 The primary goals of the Bankruptcy Code are to afford the honest debtor with a fresh economic start and to promote equality of distribution among similarly situated creditors; for instance, to avoid the race to the courthouse. An additional goal under the 2005 amendments is to increase payments by debtors who make more than their state’s median income to their unsecured creditors.2
Who may be a debtor? The term debtor means a person or municipality concerning a case filed under the Bankruptcy Code.3 Cases filed under Chapter 7 and Chapter 11 can be filed by a person, including an individual, partnership, or corporation.4 Chapter 9 is applicable to a municipality or other political subdivision.5 Chapter 12 is filed by a family farmer or family fisherman with regular income.6 Chapter 13 is filed by an individual with regular income and unsecured debt of less than $394,725 and secured debt of less than $1,184,200.7 Chapter 15 is filed by a foreign entity.8
Voluntary bankruptcy cases start with the filing of a petition, schedules, and statements that are signed by the debtor under penalty of perjury.9 The petition, schedules, and statements must be true and accurate and list all the debtor’s debts (yes, everyone whom the debtor owes) and all the debtor’s assets (everything the debtor owns). With the 2005 amendments, debtors are required to take mandatory prepetition credit counseling.10 Individual debtors must complete prepetition credit counseling from an accredited credit counseling agency within 180 days before filing a bankruptcy petition.11 Prepetition credit counseling may be completed in person, by phone, or online.12 Upon completion of mandatory prepetition credit counseling, the debtor must file a certificate of credit counseling with the bankruptcy court. Individual debtors are also required to take a post-petition financial management course and file a certification of completion with the bankruptcy court in order to receive a discharge of their debts. Failure to comply with the requirement of attending a post-petition financial management course will result in the case being closed without entry of the discharge order.13
The most common bankruptcy cases that I preside over are nonbusiness Chapter 7s and Chapter 13s. Most of the bankruptcy cases in the country are consumer cases. To give a broader picture, during the 2016 calendar year, nationwide there were 770,846 nonbusiness bankruptcy cases filed, compared to 24,114 business cases filed.14 Chapter 7 is a liquidation, often called a “straight bankruptcy.” In these cases, a Chapter 7 trustee is appointed to sell any nonexempt assets of the debtor to pay creditors.15 Most Chapter 7 cases are “no asset” cases because there are simply no assets to sell. Chapter 7 debtors usually receive their discharge within 60 to 90 days after the case is filed. Debtors in a Chapter 7 case cannot receive a discharge if the debtor has received a discharge under a Chapter 7 or Chapter 11 case filed within eight years before filing the current case or has received a discharge in a Chapter 13 case within six years.16 In a Chapter 13 case, the debtor makes monthly payments to a Chapter 13 trustee, who then pays the debtor’s creditors pursuant to a Chapter 13 plan.17 The debtor usually makes these monthly payments for 36 to 60 months. During the length of the plan, the Chapter 13 trustee closely monitors the financial activities of the debtor, including future earnings.18 One benefit of the Chapter 13 plan is that debtors can repay arrearages owed on mortgage and car loans.
One of the most important reasons individuals and businesses file bankruptcy is the automatic stay, which goes into effect immediately upon filing a bankruptcy case.19 The automatic stay prohibits creditors from taking most collection actions, such as suing a debtor, garnishing, or foreclosing. However, the automatic stay does not prohibit a criminal action against the debtor, or collection or garnishment of a domestic support obligation, to name a few exceptions.20 Relief from the automatic stay must be requested by written motion for various reasons, such as to foreclose in a Chapter 7 case or to foreclose or repossess in a Chapter 13 case when the debtor is not current on mortgage or plan payments.21 In some instances, the debtor has to seek to extend the automatic stay by filing a motion.22 If the debtor has a previous bankruptcy case within one year and files a second case, the automatic stay is in effect for only 30 days unless extended upon a showing of a substantial change in circumstances since dismissal of the previous case.23 If the debtor has a third case filed within one year, the automatic stay does not go into effect and the debtor must affirmatively request a stay order.24
Bankruptcy Judgeships
U.S. Bankruptcy Courts are Article I courts under the U.S. Constitution. Bankruptcy judges are appointed by the Circuit Court of Appeals for each circuit to 14-year terms that are renewable. Bankruptcy courts are a unit of U.S. district courts, and decisions made in bankruptcy court are subject to appellate review by the district court or, in districts where authorized, the Bankruptcy Appellate Panel (often referred to as BAP). Currently, the First, Sixth, Eighth, Ninth, and Tenth Circuits have BAPs. BAPs sit as three-judge panels composed of bankruptcy judges from the districts in the circuit; however, no bankruptcy judge may participate in an appeal from his or her own district.25
There are 374 sitting bankruptcy judges throughout the country, as of September 30, 2015, consisting of 334 active and 40 recalled bankruptcy judges.26 Of these, 258 are men and 116 are women.27 There are 15 African American, 7 Hispanic, and 5 Asian American bankruptcy judges.28 I was appointed to the U.S. Bankruptcy Court for the Eastern District of Missouri in March 17, 2003, and became the chief judge on February 1, 2013. I am the only African American bankruptcy judge in the Eighth Circuit. My interest in bankruptcy law developed after my first summer employment at the Bankruptcy Court in the Eastern District of Missouri and during my second year of law school when I served as a judicial intern to my now colleague Judge Barry S. Schermer. I was intrigued at how the Bankruptcy Code balances relief for corporate and individual debtors with the rights of creditors. After graduating from Washington University School of Law in St. Louis, I clerked for two years for now retired Bankruptcy Judge James J. Barta.
In the Courtroom
So, with this background, let me highlight a typical day in my courtroom. Generally, I start Mondays with a motion docket where I hear motions for relief from the automatic stay and motions to extend the automatic stay. There are other motions that may be set on this docket, such as Chapter 7 trustee’s motions to compel debtors to perform by turning over assets or documents, or to present a car to an auctioneer for valuation. Typically, hearings on motions for relief from the automatic stay are not contested, in that the parties can usually agree on what payments are past due. Debtor’s counsel will often ask the court for more time to allow the debtor to bring the payments current. Generally, in my court, one continuance may be granted to see if the payments can be brought current or if an agreement can be reached by the parties. In our district, and in some other districts throughout the country, the parties can enter into a stipulation, whereby the debtor makes an initial down payment toward the missed payments and agrees to stay current on the ongoing payments while making an additional payment over six months to bring all payments current within that time. The stipulation usually has a provision that if any of the agreed-to payments, regular or additional, are missed, the creditor can notify the court and an order granting relief from the automatic stay will be entered.
On Tuesdays, I have an adversary proceeding trial docket. An adversary proceeding is a separate matter, which must be filed to recover money or property; to determine the validity, priority, or extent of a lien; to object to dischargeability of a particular debt; or to object to the debtor receiving a discharge.29 An adversary proceeding begins by filing a complaint.30 I generally set adversary proceedings assigned to my court for trial; however, other bankruptcy judges often set their adversary proceedings for a pretrial hearing first. It is my policy to grant one continuance by agreement of the parties to the adversary, if they are exploring settlement or completing discovery. Adversary proceedings are governed by Rules 7001 through 7078 of the Federal Rules of Bankruptcy Procedure, which adopt many of the Federal Rules of Civil Procedure, such as Rule 8, General Rule of Pleadings, and Rule 26, General Provision Governing Discovery. On trial dates, the adversary trial proceeds just as any other bench trial in federal court.
When do I hear matters in Chapter 11 cases? If it is a standard Chapter 11 case, I usually hear these matters after my Monday motion docket. If it is what we call a “mega case,” I set these matters for a separate hearing date once a month because some of these hearing can involve many parties and require additional court time. What is a mega case? A mega case is an extremely large corporate reorganization that involves $100 million or more in assets, at least 1,000 creditors, numerous docket entries, and several attorneys who make appearances on the record.31 My first mega case was Patriot Coal Corporation, which I presided over starting in late 2012 after venue was transferred from the Southern District of New York. In the Eastern District of Missouri, five mega cases were filed in 2016: Arch Coal Inc.; Noranda Aluminum Inc.; Abengoa Bioengery U.S. Holdings, LLC; Peabody Energy Corporation; and Total Hockey, Inc.
Shortly after a Chapter 11 case is filed, the debtor’s counsel coordinates with the court to set a prompt date to hear “first-day motions.” At the first-day motions hearing, the debtor often requests approval from the court to secure post-petition financing, pay employee wages and benefits, and make payments on certain prepetition debt. After the first-day motions hearing, a series of omnibus hearing dates are set to ensure that the case progresses along. Many complex issues arise in Chapter 11 cases, including financing disputes, pensions, and other procedural matters. Just as in other bankruptcy cases, the Chapter 11 mega cases in our district are all at various stages; some already have confirmed plans of reorganization, while others are still working toward proposing a plan of reorganization.
Chapter 13 cases, in my court, are heard twice a month. Chapter 13 cases can only be filed by individuals with regular income.32 In addition to the debtor and its creditors, the Chapter 13 trustee plays a major role in administering the debtor’s estate. Chapter 13 trustees are appointed by the U.S. Trustee and performs his or her duties pursuant to the Bankruptcy Code.33 The primary goal for debtors in Chapter 13 cases is to propose a confirmable plan and repay debt over the life of the plan. Most debtors make the decision to file a Chapter 13 over a Chapter 7 if they have property, such as a home, that they would like to maintain post-discharge. The Chapter 13 docket is when I hear objections to confirmation of the Chapter 13 plan filed by the Chapter 13 trustee and creditors, and other matters such as motions to dismiss a case for failure to make plan payments and motions to incur debt filed by debtors. Motions to incur debt are required because Chapter 13 debtors are prohibited from incurring new debt without court approval. The Chapter 13 dockets in our district are large because we have a high number of Chapter 13 cases, both newly filed and pending34
In sum, for me, the daily life of a bankruptcy judge is both rewarding and exciting. I encourage judges and judicial enthusiasts to learn more about bankruptcy law and its role in our federal court system. If you do not already know your local bankruptcy judges, I suggest that you get to know them. You never know when the automatic stay may put a halt on one of your court proceedings.
Endnotes
1. Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23.
2. Id.
3. 11 U.S.C. § 101(13) (2017).
4. Id. § 109(b).
5. Id. § 109(c).
6. Id. §109(f).
7. Id. § 109(e).
8. Id. § 1502(1).
9. Id. §§ 301, 101(42); Fed. R. Bankr. P. 1002 (2017).
10. 11 U.S.C. § 109(h) (2017).
11. Id.
12. Id.
13. Id. §§ 727(a)(11), 1328(g)(1).
14. Bankruptcy Fillings Fall 5.9%, Reach Lowest Level Since 2006, Judiciary News (Jan. 25, 2017), http://www.uscourts.gov/news/2017/01/25/bankruptcy-filings-fall-59-reach-lowest-level-2006.
15. 11 U.S.C. § 704 (2017).
16. Id. § 727(a)(8), (a)(9).
17. Id. § 1302(b).
18. Id. § 1322.
19. Id. § 362(a).
20. Id. § 362(b).
21. Id. § 362(d).
22. Id. § 362(c)(3).
23. Id. § 362(c)(3)(A).
24. Id. § 362(c)(3)(B).
25. Court Insider: What Is a Bankruptcy Appellate Panel?, Judiciary News (Nov. 26, 2012), http://www.uscourts.gov/news/2012/11/26/court-insider-what-bankruptcy-appellate-panel.
26. James C. Duff, Admin. Office of the U.S. Courts, The Judiciary Fair Employment Practices Annual Report, October 1, 2014 through September 30, 2015, at 6 (2015).
27. Id.
28. Id.
29. Fed. R. Bankr. P. 7001 (2017).
30. Id. R. 7003.
31. Laura B. Bartell, Fed. Judicial Ctr., A Guide to the Judicial Management of Bankruptcy Mega-Cases 5 (2009).
32. 11 U.S.C. § 1301 (2017).
33. Id. § 1302.
34. Narrative Reports on 2016 Bankruptcy Case Filings, U.S. Bankr. Court, E. Dist. of Mo., http://www.moeb.uscourts.gov (follow “Statistics” hyperlink; then find the Narrative Reports Yearly Report field and search “2016”).