Click Here to View Information Regarding Telephonic Participation in a Hearing.; Click Here to View Guideline for the Northeastern Division Regarding Service of Chapter 13 Plans as Required by Local Rule 3015-1(c)

=== Click Here to View Information Regarding Telephonic Participation in a Hearing. ===

Telephonic Participation: All hearings will be conducted in person unless permission to participate by telephone is specifically given by Judge Mancl. Attorneys who desire to appear and participate telephonically in a non-evidentiary hearing on an administrative or a contested matter must contact chambers for permission to do so at least 24 hours prior to the hearing except in the case of an emergency. Information for Participating by Telephone If Permitted:  At least 10 minutes before the time of the hearing, dial the teleconferencing number (423) 212-5515 and enter conference ID number 544239898#.  Place the telephone on mute, but do not place the call on hold.  Wait until your case is called or announcements are accepted by the court before speaking. Each time you speak, identify yourself for the record.  Pursuant to E.D. Tenn. LBR 5073-1, you are prohibited from recording or broadcasting the proceedings conducted by the United States Bankruptcy Court.

=== Click Here to View Guideline for the Northeastern Division Regarding Service of Chapter 13 Plans as Required by Local Rule 3015-1(c) ===

The following is meant for general instruction and is neither intended to be nor may it be cited as authority in any case or proceeding. Any determination concerning due process and service compliance will be made only by reference to the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, the Local Rules of this court, and controlling or otherwise pertinent case law. Guideline for the Northeastern Division Regarding Service of Chapter 13 Plans as Required by Local Rule 3015-1(c) E.D. Tenn. LBR 3015-1. (c) Service Required by Fed. R. Bankr. P. 7004. When a chapter 13 plan includes a request to determine the amount of a creditor’s secured claim under Fed. R. Bankr. P. 3012(b) or provides for the partial or entire avoidance of a creditor’s lien under Fed. R. Bankr. P. 4003(d), the debtor must file with the plan a certificate evidencing service of the plan upon the affected creditors by first class mail in the manner required by Fed. R. Bankr. P. 7004(b) or by certified mail in the manner required by Fed. R. Bankr. P. 7004(h) if a creditor is an insured depository institution. I. When must a chapter 13 plan be served to satisfy the requirements of this Rule? Does the plan have a creditor listed in Section 3.2 (Request for Valuation of Security, Payment of Fully Secured Claims, and Modification of Undersecured Claims), Section 3.4 (Lien Avoidance), or Section 8.1 (Nonstandard Provisions)? If the answer is “NO,” the plan does not have to be served. Section 3.4 If the answer is “YES,” there is a creditor listed in Section 3.4, the creditor must be served with the plan. Without exception, the plan must be served on all creditors listed in Section 3.4. Section 8.1 If the answer is “YES,” there is a creditor listed in Section 8.1, does the debtor’s proposed treatment of the creditor’s claim fall within the scope of a request made pursuant to Fed. R. Bankr. P. 3012(b) or Fed. R. Bankr. P. 4003(d)? If the answer is “YES,” the plan must be served on that creditor. With the foregoing exception, the plan does not have to be served on creditors listed in Section 8.1. in for full” listed by Section 3.2 If the answer is “YES,” there is a creditor listed in Section 3.2, does the debtor propose to pay the creditor’s claim as fully secured and use language such as “pay the “Secured Amount” such that the amount the secured creditor in its proof of claim will be determinative of what the creditor must receive under the plan? If the answer is “YES,” the plan does not have to be served on that creditor. With the foregoing exception, the plan must be served on all creditors listed in Section 3.2. II. How may a chapter 13 plan be served to satisfy the requirements of this Rule? the creditor “an Is insured depository institution (as defined in section 3 of the Federal Deposit Insurance Act)” as stated in Fed. R. Bankr. P. 7004(h)? If the answer is “NO,” only service by regular mail is required. If the answer is “YES,” the creditor must be served “by certified mail addressed to an officer of the institution.” Fed. R. Bankr. P. 7004(h). A search at the FDIC’s BankFind Suite will provide the names and main office locations of depository institutions insured by the FDIC. https://banks.data.fdic.gov/bankfind-suite/bankfind to If the creditor is an individual, service may be made by mailing the the plan “individual’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.” Fed. R. Bankr. P. 7004(b)(1). Subdivision (i) of Fed. R. Bankr. P. 7004 states that when serving an officer of a FDIC-insured depository institution creditor as required in subdivision (h), the “officer or agent need not be correctly named in the address—or even named—if the envelope the is addressed [creditor’s] proper address and directed to the attention of the officer’s or agent’s position or title.” Fed. R. Bankr. P. 7004(i). to If the creditor is a corporation or partnership (other than a FDIC-insured depository institution or governmental entity), service may be made by mailing the plan “to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.” Fed. R. Bankr. P. 7004(b)(3). When serving an officer or a managing or general agent, the “officer or agent need not be correctly named in the address—or even named—if the envelope is addressed to the [creditor’s] proper address and directed to the attention of the officer’s or agent’s position or title.” Fed. R. Bankr. P. 7004(i). For entities registered with the Tennessee Secretary of State, a search by the entity’s name will provide the address for the principal office and the name and address of the registered agent for service of process. https://tnbear.tn.gov/Ecommerce/FilingSearch.aspx 2 FAQs Why do I have to serve the plan when the creditors are receiving it from the Bankruptcy Noticing Center? Although the BNC will send the plan to all scheduled creditors if the plan is filed with the petition, service by the BNC may not meet the requirement of Fed. R. Bankr. P. 7004(b) (that the creditor be served by first class mail) because the creditor may have signed up with the BNC to receive all bankruptcy notices electronically. Service by the BNC will never meet the requirement of Fed. R. Bankr. P. 7004(h) (that the FDIC-insured depository institution creditor be served by certified mail). How should I direct the service of a plan if I decide to serve an officer or a managing or general agent? What about if I decide to serve the registered agent? In serving the plan under subdivisions (b)(3) and (h) of Fed. R. Bankr. P. 7004, the creditor’s “officer or agent need not be correctly named in the address—or even be named—if the envelope is addressed to the [creditor’s] proper address and directed to the attention of the officer’s or agent’s position or title.” Fed. R. Bankr. P. 7004(i). The advisory comment to this subdivision states: New Rule 7004(i) is intended to reject those cases interpreting Rule 7004(b)(3) and Rule 7004(h) to require service on a named officer, managing or general agent or other agent, rather than use of their titles. Service to a corporation or partnership, unincorporated association or insured depository institution at its proper address directed to the attention of the “Chief Executive Officer,” “President,” “Officer for Receiving Service of Process,” “Managing Agent,” “General Agent,” “Officer,” or “Agent for Receiving Service of Process” (or other similar titles) is sufficient. (Emphasis supplied.) In serving the registered agent under subdivision (b)(3) of Fed. R. Bankr. P. 7004, you should identify the creditor for which the agent is authorized to accept service. As examples: Certificate of Service I certify that the foregoing chapter 13 plan was served on this the ____ day of ______________, 202__, on the following by U.S. Mail (USM) or U.S. Certified Mail (USCM) as indicated: [OR] Eastman Credit Union (USM) Attn: Chief Executive Officer 2021 Meadowview LN Kingsport, TN 37660 First Horizon Bank (USCM) Republic Finance, LLC (USM) Do I have to file a certificate of service for a plan filed with the petition if the registered agent Attn: Chief Executive Officer Attn: Chief Executive Officer for a creditor is included on the schedule as “Others to Be Notified for a Debt That You Already 165 Madison Ave 7031 Commerce Cir Listed” and on the master address list? Yes. Even if service by regular mail as required by Fed. R. Bankr. P. 7004(b) is performed by the Memphis, TN 38103 Baton Rouge, LA 70809 BNC, Local Rules 3015-1(c) and 9013-3(b) still require that a certificate be filed with the plan that lists the name, service address, manner of service, and date of service for the creditor that was served by the BNC. And you should review the BNC certificate of notice for the plan once it is docketed to ensure that the creditor was properly served. If not, you must file an amended CT Corporation System (USM) certificate of service evidencing that you subsequently served the creditor. This procedure would Registered Agent for be the same if the creditor was addressed to the attention of an officer or a managing or general Republic Finance, LLC agent. 300 Montvue Rd Knoxville, TN 37919 Matthew Wimberly (USM) Registered Agent for Eastman Credit Union 2021 Meadowview LN Kingsport, TN 37660 s/ ________________________ [OR] 3 Is it ok to serve a creditor at any of its locations so long as it is directed to the attention of an officer or a managing or general agent? Not likely. “Service on a branch office is … risky.” In re Simpson, No. 21-11179-T7, 2022 WL 2181324, at *6 (Bankr. D.N.M. June 16, 2022) (“[a]lthough Rule 7004(b)(3) does not specify where mail service for a corporation defendant must be sent, the requirement that service by made to the attention of an officer, managing or general agent implies that service must be directed to an address where this individual would receive it”) (citation omitted . The use of the term “proper address” in Fed. R. Bankr. P. 7004(i) implies that the address be the one where an officer or a managing or general agent regularly receives mail. How do I find the proper address for serving a creditor to the attention of an officer or a managing or general agent? You could utilize the Tennessee Secretary of State’s business search feature to locate the address of the creditor’s principal office. “[T]here is no provision in the Federal Rules of Bankruptcy Procedure that requires an officer to be served anywhere other than the corporation’s principal office.” In re Gourlay, 465 B.R. 124, 132 (B.A.P. 6th Cir. 2012). The main office address for a FDIC-insured depository institution may be located by using the search feature of the FDIC’s BankFind Suite. Is it ok if I serve the registered agents for banks and credit unions? No, for FDIC-insured banks. Yes, for credit unions. It’s not ok to serve a registered agent for a FDIC-insured bank because subdivision (h) of Fed. R. Bankr. P. 7004 states that “[s]ervice on an insured depository institution (as defined in section 3 of the Federal Deposit Act) ... shall be made by certified mail addressed to an officer of the institution ….” A registered agent is an “agent authorized by appointment … to receive service of process” under subdivision (b)(3) of Fed. R. Bankr. P. 7004. While an officer could also be the registered agent, subdivision (h) makes it clear that the person must be served in his or her capacity as an officer, not as a registered agent. It's ok to serve a registered agent for a credit union because it is not an insured depository institution “as defined in section 3 of the Federal Deposit Act.” [Note: The definition in subdivision (h) of Fed. R. Bankr. P. 7004 that the term “insured depository institution” means those institutions “as defined in section 3 of the Federal Deposit Act” was added by § 114 of the Bankruptcy Reform Act of 1994, effective October 22, 1994. On the other hand, the definition of the term “insured depository institution” provided by 11 U.S.C. § 101(35) includes “an insured credit union” in addition to “the meaning given it in section 3(c)(2) of the Federal Deposit Insurance Act.” This broader definition was enacted effective as of November 29, 1990, by Pub. L. 101-647, as a part of the banking law enforcement provisions of the Crime Control Act of 1990. Although Fed. R. Bankr. P. 9001 provides that “the words and phrases in §§ 101 … govern their use in these rules,” the more recent enactment of the limiting definition in Fed. R. Bankr. P. 7004(h) indicates that the limited definition is applicable for that rule.] So, I don’t have to serve the plan on a creditor listed in Section 3.1 (Maintenance of payments and cure of default, if Any), Section 3.3 (Secured Claims Excluded from 11 U.S.C. § 506), Section 3.5 (Surrender of Collateral), or Section 3.6 (Secured Claims Paid by Third Party)? That is correct! 4