CANB — 4th Amended General Order 37

Source: https://www.canb.uscourts.gov/sites/default/files/general-orders/4thAmendedGeneralOrder37Signed.pdf

1 2 3 UNITED STATES BANKRUPTCY COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 In re 7 ABROGATION OF GENERAL ORDER 37, AND THIRD AMENDED GENERAL FOURTH AMENDED GENERAL 8 ORDER 37; RETENTION OF INTERIM ORDER 37 RULE 1020 AND TEMPORARY AMENDED 9 OFFICIAL FORM 201 10 11 On August 23, 2019, the Small Business Reorganization Act of 2019 (the SBRA) was enacted into law. The SBRA made substantive and procedural changes to the Bankruptcy Code12 effective as of February 19, 2020, long before the Federal Rules of Bankruptcy Procedure (the13 “Bankruptcy Rules”) could be amended to implement the SBRA changes under the usual Rules 14 Enabling Act rule-making process. Accordingly, the Advisory Committee on Bankruptcy Rules 15 drafted, published for comment, and subsequently approved interim bankruptcy rules (the “SBRA 16 Interim Rules”), and the Judicial Conference of the United States authorized the SBRA Interim 17 Rules for courts to adopt locally. This Court adopted the SBRA Interim Rules pursuant to 18 General Order 37 (issued January 30, 2020).1 19 Pursuant to the SBRA, SubChapter V of Chapter 11 of the Bankruptcy Code was limited 20 to small business debtors (as defined in Bankruptcy Code section 1182) with aggregate, 21 noncontingent, liquidated, secured and unsecured debts not greater than $2,725,625. Effective 22 March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) 23 increased this debt ceiling to $7,500,000. This and other CARES Act changes required an 24 amendment to SBRA Interim Rule 1020, and temporary amendments to Official Forms 101, 25 122A-1, 122B, 122C-1 and 201. To implement these changes the Judicial Conference authorized a CARES Act based amended version of SBRA Interim Rule 1020, and the temporary amended26 27 1 A copy of the SBRA Interim Rules is attached to General Order 37. 28 FOURTH AMENDED GENERAL ORDER 37 - ABROGATION OF GENERAL ORDER 37, AND THIRD AMENDED GENERAL ORDER 37; RETENTION OF INTERIM RULE 1020 AND TEMPORARY AMENDED OFFICIAL FORM 201

Official Forms for courts to adopt locally. Pursuant to Amended General Order 37 (issued May 1 18, 2020), this Court adopted the CARES Act based Amended Interim Bankruptcy Rule 1020, 2 and the temporary amended Official Forms. 3 4 Thereafter, on March 27, 2022, the CARES Act provisions that required adoption of Amended Interim Bankruptcy Rule 1020, and the temporary amended Official Forms, expired. 5 Accordingly, pursuant to Second Amended General Order 37 (issued March 28, 2022) this Court 6 rescinded use of the temporary amended Official Forms and abrogated Amended General Order 7 37, leaving in effect General Order 37 and thereby the initial SBRA Interim Rules. 8 9 A short time later, effective June 21, 2022, the Bankruptcy Threshold Adjustment and Technical Corrections Act (the “BTATC Act”) reinstated the $7,500,000 debt ceiling in10 SubChapter V cases, retroactive to March 27, 2022.2 This change required the Court to again11 amend General Order 37. Accordingly, pursuant to the Third Amended General Order 37 (issued 12 July 28, 2022) this Court 1) adopted the BTATC Act based Interim Rule 1020, 2) approved the 13 use of temporary amended Official Forms 101 and 201, 3) abrogated Second Amended General 14 Order 37, and 4) otherwise retained General Order 37 in effect. 15 Effective December 1, 2022, upon completion of the Rules Enabling Act rule-making16 process, the initial SBRA Interim Rules ceased being interim and became regular Bankruptcy 17 Rules. Also effective on December 1, 2022, the Judicial Conference approved making temporary 18 amended Official Form 101 an actual official form (but left in place temporary amended Official 19 Form 201). Accordingly, as of December 1, 2022, the BTATC Act based Interim Rule 1020, and 20 temporary amended Official Form 201 remain in effect. 21 NOW THEREFORE, pursuant to 28 U.S.C. § 2071, Rule 83 of the Federal Rules of22 Civil Procedure, and Rule 9029 of the Federal Rules of Bankruptcy Procedure, the court 23 ORDERS as follows: 24 25 1) General Order 37 is hereby abrogated, and 26 27 2 Unless extended, these BTATC Act changes expire on June 21, 2024. 28 FOURTH AMENDED GENERAL ORDER 37 - ABROGATION OF GENERAL ORDER 37, AND THIRD AMENDED GENERAL ORDER 37; RETENTION OF INTERIM RULE 1020 AND TEMPORARY AMENDED OFFICIAL FORM 201

2. Third Amended General Order 37 is hereby abrogated, except that a) the BTATC 1 Act based Interim Rule 1020 (a copy is attached) and b) the Judicial Conference

2 approved temporary amended Official Form 201 adopted pursuant to the Third 3 Amended General Order 37, hereby remain adopted in their entirety without change by 4 the judges of this court.3 5 IT IS SO ORDERED. 6 Dated: December 6, 2022 7 8 9 Charles Novack 10 Chief Bankruptcy Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 The temporary amendments to Official Forms 122A-1, 122B and 122C-1 lapsed on March 27, 2022, resulting in these forms reverting to their pre-CARES Act versions. Copies of Official Forms are located at 27 https://www.uscourts.gov/forms/bankruptcy-forms. The Committee Notes and Staff Notations to the Official Forms posted at this link explain the relevant changes. 28 FOURTH AMENDED GENERAL ORDER 37 - ABROGATION OF GENERAL ORDER 37, AND THIRD AMENDED GENERAL ORDER 37; RETENTION OF INTERIM RULE 1020 AND TEMPORARY AMENDED OFFICIAL FORM 201

1 Interim Rule 1020. Chapter 11 Reorganization Case for

2 Small Business Debtors or Debtors Under Subchapter V

3 (a) SMALL BUSINESS DEBTOR

4 DESIGNATION. In a voluntary chapter 11 case, the debtor

5 shall state in the petition whether the debtor is a small

6 business debtor or a debtor as defined in § 1182(1) of the

7 Code and, if the latter so, whether the debtor elects to have

8 subchapter V of chapter 11 apply. In an involuntary chapter

9 11 case, the debtor shall file within 14 days after entry of the

10 order for relief a statement as to whether the debtor is a small

11 business debtor or a debtor as defined in § 1182(1) of the

12 Code and, if the latter so, whether the debtor elects to have

13 subchapter V of chapter 11 apply. The status of the case as

14 a small business case or a case under subchapter V of chapter

15 11 shall be in accordance with the debtor’s statement under

16 this subdivision, unless and until the court enters an order

17 finding that the debtor’s statement is incorrect.

18 (b) OBJECTING TO DESIGNATION. The United

19 States trustee or a party in interest may file an objection to

20 the debtor’s statement under subdivision (a) no later than 30

21 days after the conclusion of the meeting of creditors held

22 under § 341(a) of the Code, or within 30 days after any

23 amendment to the statement, whichever is later.

24 (c) PROCEDURE FOR OBJECTION OR

25 DETERMINATION. Any objection or request for a

26 determination under this rule shall be governed by Rule 9014

27 and served on: the debtor; the debtor’s attorney; the United

28 States trustee; the trustee; the creditors included on the list

29 filed under Rule 1007(d) or, if a committee has been

30 appointed under § 1102(a)(3), the committee or its

31 authorized agent; and any other entity as the court directs.

Committee Note

The Interim Rule is amended in response to the

enactment of the Bankruptcy Threshold Adjustment and Technical Correction Act (the “BTATC Act”), Pub. L. No. 117-151, ___ Stat. ____. The BTATC reinstates the definition of “debtor” for determining eligibility to proceed under subchapter V of chapter 11 that was in effect from March 27, 2020 through March 27, 2022, under the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281, as amended. Subdivision (a) of the rule is amended to reflect that change. This Interim Rule will terminate two years after the date of enactment of the BTATC, unless the Act is extended.