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Motions

Local Rule Number: 
Rule 9013-1
9000 Series

(A)       Preamble.  This rule applies to all motion practice.  Local Rule 9075-1 describes the procedures to be followed in emergency motion practice.

(B)       Form, Content, Service of Motions.  The form of motions and other requests for court action or relief is governed by Local Rules 5005-3, 5005-4, 9004-1, 9004-2, 9011-4 and 9072-1.  All motions must state with particularity the grounds for the motion and must request specific relief.

(C)       Motions That May Be Considered Without a Hearing (Ex Parte Motions).  In addition to those matters that may be considered without a hearing pursuant to the Bankruptcy Rules or other provisions in these rules, unless otherwise directed by the court no hearing is required for the following motions.  For each motion indicated below, the moving party shall follow the procedure in Local Rule 5005-1(G)(1)(a) and not the procedure in Local Rule 9073-1. Upon entry of an order, the motion and entered order shall be served as required by these rules. This subdivision is not intended to restrict a judge’s authority to grant relief without a hearing on other motions.

(1)        Motions in which the movant certifies that all affected parties have consented to the requested relief.

(2)        Motions to extend the time for filing schedules, statements, or lists, where the requested extended deadline is not later than seven days before the §341 meeting or post-conversion meeting.  The motion must be served on the debtor, the trustee, the U.S. Trustee, and all parties who have requested notices.  In a chapter 11 case, where applicable, the notice must also be served on the parties listed on the “Master Service List” filed pursuant to Local Rule 2002-1(H).

[Comment: See also Local Rules 1007-1(B) and 1019-1(A) (extension of time to file schedules, statements, and lists).]

(3)        Subject to the requirements of Bankruptcy Rule 6003, motions to approve employment of professionals, where the motion does not seek approval of a postpetition retainer or a particular fee arrangement, and the motion does not reveal any actual or potential conflict of interest or any other facts that could preclude retention.  The motion must be served on the debtor, the trustee, the U.S. Trustee, and the attorney for or members of any creditors’ committee or, in the absence of a committee, the 20 largest unsecured creditors in a chapter 11 case, and all parties who have requested notices.  In a chapter 11 case, when applicable, the notice must also be served on the parties listed on the “Master Service List” filed pursuant to Local Rule 2002-1(H).

[Comment: See also Local Rules 2014-1 (employment of professionals) and 6005-1 (employment of auctioneers).]

(4)        Subject to the requirements of Bankruptcy Rule 6003, motions to approve employment of real estate brokers, and to fix compensation for brokers, where the motion seeks to fix the compensation at the standard rate charged for similar services.  The motion must be served on the debtor, the trustee, the U.S. Trustee, and the attorney for or members of any creditors’ committee or, in the absence of a committee, the 20 largest unsecured creditors in a chapter 11 case, and all parties who have requested notice.  In a chapter 11 case, where applicable, the notice must also be served on the parties listed on the “Master Service List” filed pursuant to Local Rule 2002-1(H).

[Comment: See also Local Rules 2014-1 and 9013-1(C)(3) (employment of professionals).]

(5)        Motions to extend time to file objections to claimed exemptions, where the motion reflects that:

(a)        the debtor has consented to the requested relief;

(b)       the debtor has failed to appear at a properly scheduled Bankruptcy Rule 2004 examination;

(c)        the debtor has failed to produce properly requested documents; or

(d)       despite reasonable diligence by the movant, discovery has been propounded which is not due until after the deadline, or Bankruptcy Rule 2004 examinations have been noticed for a date after the deadline and the discovery is necessary to evaluate whether to file an objection.

Unless the debtor agrees to a longer extension, the requested extension cannot be longer than 30 days after the original (or previously extended) deadline.  The motion shall be served on the debtor, the trustee, and any creditor included in the moving party’s request for extension.

(6)        Motions to extend time to file complaints or motions objecting to discharge under §727, motions objecting to discharge under §1328(f), and complaints objecting to dischargeability under §523, but only if the debtor consents to the requested extension. The motion must indicate in the body if it is an agreed motion and indicate the date the petition was filed.

[Comment: See Bankruptcy Rules 4004 and 4007.]

(7)        Motions to shorten or extend time for responding to discovery requests.  The motion must be served on all interested parties or if applicable, pursuant to Local Rule 2002-1(H).

[Comment: See also Local Rules 4001-1(G) (discovery in stay relief matters), 7016-1 (judges’ pre-trial procedures), and 7030-2 (depositions).]

(8)        Agreed motions for continuances of hearings, trials or pre-trial conferences.  The motion must be served on all interested parties or if applicable, pursuant to Local Rule 2002-1(H).

[Comment: See Local Rules 5071-1 (continuance of hearings) and 7090-1 (continuances of trials or pre-trial conferences).]

(9)        Motions for pro hac vice appearance.  The motion must be served on the debtor, the trustee, the U.S. Trustee, and all interested parties or if applicable, pursuant to Local Rule 2002-1(H).

[Comment: See Local Rule 2090-1 (attorneys).]

(10)      Motions by the chapter 7 trustee to approve sales of property for $2,500 or less.  The motion must be served on the debtor and the U.S. Trustee.

[Comment: See also Bankruptcy Rule 6004 and Local Rule 6004-1 (sales).]

(11)      Motions to reopen chapter 7 cases to administer additional assets.  The motion must be served on the debtor and the U.S. Trustee.

[Comment: See Local Rules 5010-1(C) (reopening closed case).]

(12)      Motions by debtors to convert under 11 U.S.C. §1112(a).  The motion must be served on the U.S. Trustee and the trustee, if applicable, or when applicable, pursuant to Local Rule 2002-1(H).

(13)      Motions by debtors to dismiss under 11 U.S.C. §1307(b) or under 11 U.S.C. §1208(b).

(14)      Motions for joint administration of non individual chapter 11 cases.                   

 [Comment: See Local Rule 3017-2.]

(15)      Motions for Orders Confirming Termination of Automatic Stay Under 11 U.S.C. §362(c)(3)(A).  Such motions shall be considered upon expiration of the 30-day period after the case was filed if accompanied by a certificate which (a) recites the facts which establish that the status of the debtor is that as described in §362(c)(3), and (b) includes a statement that no order continuing the stay has been entered under §362(c)(3)(B), and a proposed order confirming termination of the stay which sets forth the statement attested to by the creditor in the required certificate.

(16)      Motions for Orders Confirming That Automatic Stay is Not in Effect Under 11 U.S.C. §362(c)(4)(A)(i).  Such motions shall be accompanied by a certificate which (a) recites the facts which establish that the status of the debtor is that as described in §362(c)(4)(A)(i), and (b) includes a statement that no order imposing the stay has been entered under §362(c)(4)(B), and a proposed order confirming that no stay is in effect which sets forth the statements attested to by the creditor in the required certificate.

(17)     Motions for Order Confirming That Automatic Stay is Not in Effect Under 11 U.S.C. §362(b)(23). Such motions shall be considered without hearing if the debtor has not filed an objection under 11 U.S.C. §362(m)(2), within the 14-day period after the lessor files and serves the certification described in 11 U.S.C. §362(b)(23), and upon the movant’s submittal of a proposed order including in the order’s preamble the following: “and the movant by submitting this form of order having represented that the motion was served on the debtor and counsel for the debtor, that the 14-day response time has expired, that the debtor has not filed, or served on the movant, a response to the motion, and that the relief to be granted in this order is the identical relief requested in the motion.”

(18)      Trustee’s motions to pay debtors their allocable portion of any tax refund.

(19)      Trustee’s motions to waive the balance of debtor’s settlement payments where the amount waived is the lesser of $100 or 1% of the total settlement amount.

(20)      Debtor’s motions to terminate wage deduction order so long as the motion represents that all payments have been completed under the debtor’s chapter 13 plan and the chapter 13 trustee is served with a copy of the motion.

(21)      Debtor’s motion to reopen case to file Official Bankruptcy Form “Certification About a Financial Management Course”.

[Comment: See Local Rule 5010-1(G).]

(22)      Debtor’s motion to amend petition to correct debtor’s name.

 [Comment:  see Local Rule 1009-1(B)]

(23)      Joint motions for substitution of counsel under Local Rule 2091-1.

(24)      Motions to continue a pretrial conference in an adversary proceeding, following issuance of an alias summons under Local Rule 7004-2, to permit the timely filing of an answer not later than 30 days prior to the proposed, re-scheduled pretrial conference.

                (25)      Motions to redact personal information under Local Rule 5005-1(A)(3).

☞2015 Amendment:    Section (C)(14) has been amended to match procedures under Local Rule 1015-1. Section (C)(17) eliminates requirement to file certificate of no response and adds required language to the proposed order. Section (21) amended to reflect amended name of Official Bankruptcy Form. Section (C)(25) is amended to incorporate the provisions of Interim Local Rule 9013-1(C)(25), adopted by Administrative Order 14-06.

(D)       Motions Considered on Negative Notice.

(1)        Introduction.  Certain motions may be considered by the court without a hearing if appropriate notice and an opportunity to object to the relief requested is provided to interested parties (“negative notice”).  The option provided in this rule is not intended to limit the court’s discretion to grant or deny relief sooner than 21 days after service of the motion.

(a)        In addition to those motions listed under subdivision (D)(4), the negative notice procedure may not be used for any motion including a request for relief against a pro se debtor, or for those motions governed by the negative notice procedures described in  Local Rules 3007-1(C) (objections to claims), 4001-1(C) (motions for stay relief), 6004-1(B) (certain notices of sale) and 6007-1(B)(1) (certain notices of abandonment).

(b)       Motions may not combine requests for relief under more than one negative notice rule or combine any motion seeking relief on negative notice with a motion seeking relief for which negative notice is unavailable.  In such instances, the court may deny the relief requested or require the filing of separate motions.

(2)        Use of Bulletin; Procedures.  Subject to the limitations of Local Rule 9013(D)(1), whenever the Bankruptcy Code or Bankruptcy Rules provide that an order may be entered “after notice and a hearing” or similar phrase, the motion may include above the preamble and below the title of the motion the following bulletin in bold print:

                                    Any interested party who fails to file and serve a written

                                    response to this motion within 21 days after the date of

                                    service stated in this motion shall, pursuant to Local Rule

                                    9013-1(D), be deemed to have consented to the entry of an

                                    order in the form attached to this motion.  Any scheduled

                                    hearing may then be canceled.

Each motion filed under this subdivision must attach a proposed order as an exhibit.  When this bulletin is included in the motion, a party properly served who fails to file a written response within 21 days after service of the motion shall be deemed to have consented to the entry of the order.  Within seven days after the expiration of the 21 days notice period, the moving party shall submit to the court the following: (a) if no response is received or filed, a proposed order pursuant to Local Rule 5005-1(G), including the following language in the order’s preamble:

“and the movant by submitting this form of order having represented that the motion was served on all parties required by Local Rule 9013-1(D), that the 21-day response time provided by that rule has expired, that no one has filed, or served on the movant, a response to the motion, and that the form of order was attached as an exhibit to the motion;”

or (b) if a response contesting the relief requested is received or filed, the Local Form “Certificate of Contested Matter”.  If a certificate of contested matter is filed, the court will schedule a hearing in accordance with the procedures contained in Local Rule 9073-1(A).  The “Notice of Hearing” shall be served by movant in accordance with the procedures contained in Local Rule 9073-1(B).

(3)        Motions For Which Negative Notice May Be Used.  The following is a non-exclusive list of motions that may be considered without a hearing, provided such motions do not affect the rights of a pro se debtor.

(a)        motions to compel abandonment of property (Bankruptcy Rule 6007(b));

(b)       motions to approve compromise or settlement (Bankruptcy Rule 9019);

(c)        motions to approve accounting by prior custodian (Bankruptcy Rule 6002);

(d)       motions to extend time to object to exemptions (Bankruptcy Rule 4003(b));

(e)        motions to temporarily allow claim for voting purposes (Bankruptcy Rule  3018(a));

(f)        motions to avoid liens on exempt property (Bankruptcy Rule 4003(d));

(g)        motions to obtain credit (11 U.S.C. §364);

(h)       motions to convert case pursuant to 11 U.S.C. §706(a);

(i)         motions to reopen chapter 7 cases to amend schedules to add omitted creditors;

(j)         motions seeking entry of an order under 11 U.S.C. §362(j), confirming that the automatic stay has terminated under 11 U.S.C. §362(c)(1).  The motion shall recite the facts which establish that the stay has terminated, including, if applicable, a statement that the debtor has failed to comply with 11 U.S.C. §521(a)(6), by either (i) failing to timely reaffirm a debt described in that section; or (ii) failing to timely redeem the collateral securing such debt.  The statement shall also confirm that the trustee has not filed a motion under §521(a)(6)(B), to determine that the property is of consequential value or benefit to the estate.  The motion shall be served on the debtor, the trustee, and any other party of record claiming an interest in the collateral;

(k)        multi-part motions to reopen case and to avoid judicial lien on exempt property (Bankruptcy Rule 4003(d)); and

(l)          a motion filed under Bankruptcy Rule 5009(d) for an order declaring a lien satisfied.

(4)        Motions Not Within Scope of Rule.  The following motions may not be considered by negative notice under Local Rule 9013-1(D):

(a)        motions to assume or reject executory contracts or unexpired leases, or to compel assumption or rejection;

(b)       motions to use, sell, or lease property except motions by a chapter 7 trustee to sell property for $2,500 or less as described in subdivision (C)(10) of this rule;

[Comment: See Bankruptcy Rule 6004; see also Local Rule 6004-1(B) (notice of sale).]

(c)        motions to approve employment of professionals except those described in subdivision (C)(3) of this rule;

[Comment: See Bankruptcy Rule 2014.]

(d)       motions to extend exclusivity period;

[Comment: See 11 U.S.C. §1121(d).]

(e)        motions for payment of administrative expenses, including professional fees;

[Comment: See 11 U.S.C. §503(a), §330 and §331, but see special notice requirements in Bankruptcy Rule 2002(c)(2) and Local Rule 2002-1(C)(9).]

(f)        motions to appoint trustee or examiner;

[Comment: See 11 U.S.C. §303(g) or §1104.]

(g)        motions which seek alternative relief;

(h)       motions to modify chapter 13 plans; and

(i)         motions for joint administration in cases other than chapter 11 and motions requesting joint administration of a case involving an individual debtor with one or more cases involving a non-individual debtor.

(j)         motions for relief against a pro se debtor which affect a pro se debtor’s rights.

(k)        motions to dismiss a chapter 7 or chapter 11 case.

(l)         motions to dismiss a chapter 12 or 13 case filed by a party other than the debtor.

☞2015 Amendment:    Amends section (D)(2) language to eliminate requirements to file certificate of no response. Section (D)(3)(j) amended to add words “amend schedules to” to reflect proposed amendments to Local Rule 5010-1(B). Amended to add new section (k). Section (D)(4)(i) adds words “chapter 11” to conform to Local Rule 1015-1 procedures.

 

☞2017 Amendment: Local Rule 9013-1 has been amended to reflect adoption of Interim Local Rule 9013-1(D)(3) by Administrative Order 17-04.

 

E)        Motions to Rehear, Reconsider or Reinstate Dismissed Chapter 13 Cases.  A motion to rehear, reconsider or vacate an order dismissing a chapter 13 case must be:

(1)        If filed by an attorney, be accompanied by a certificate which states that the debtor has tendered to the attorney all funds required to be paid under the debtor’s plan to bring the plan current as of the date of the motion and that said funds are in the attorney’s trust account, unless the motion includes a request that the case be immediately converted to another chapter; or

(2)        If the debtor is pro se, be accompanied by a photocopy of the cashiers check(s) or money order(s), made payable to the chapter 13 trustee, which will be tendered to the chapter 13 trustee by the debtor to bring the plan current if the case is reinstated, unless the motion includes a request that the case be immediately converted to another chapter.

Motions in chapter 13 cases complying with this provision shall be scheduled for hearing before the respective judge at the monthly chapter 13 calendar or, at the judge’s discretion, set for hearing on an emergency basis.  Motions not in compliance with these provisions will be denied without further notice or hearing.

In addition, a dismissed chapter 13 case shall not be reopened unless the debtor is current under the previously confirmed plan as of the hearing on the debtor’s motion to rehear, reconsider or reinstate a dismissed case.

[Comment: See Bankruptcy Rule 1017 and Local Rules 1017-2 (dismissal), 5005-1 (filing and transmittal of papers), and Local Rule 5010-1(D) (reopening chapter 13 cases), and 11 U.S.C. §350 (closing case).]

☞2015 Amendment:    Section (E) rewritten to clarify that plan funds need not be brought current if case is also being converted from chapter 13 to another case in a motion to rehear, reconsider, or reinstate.

(F)        Expedited Hearings for Certain Motions Filed in Chapter 11 Cases.  Subject to Bankruptcy Rule 6003, the motions specified in subdivisions (G), (H), (I), (J), and (K) of this rule filed in a chapter 11 case, shall be filed in accordance with Local Rule 9075-1(A), scheduled for hearing within two business days if reasonably possible, and served, as applicable, pursuant to Local Rules 2002-1(H) or 9073-1(B). If the judge assigned to the case is unable to hear the motions within two business days, the motions shall be scheduled by the clerk, whenever possible, before the judge’s designated alternative judge within the required time.

(G)       Motion Seeking Authority to Use Cash Collateral.  A motion seeking authority to use cash collateral pursuant to 11 U.S.C. §363, shall comply with Bankruptcy Rule 4001(b) or (d), and the court’s “Guidelines for Motions Seeking Authority to Use Cash Collateral and Motions Seeking Approval of Postpetition Financing”.

(H)       Motions for Approval of Postpetition Financing.  A motion seeking approval of postpetition financing pursuant to 11 U.S.C. §364, shall comply with Bankruptcy Rule 4001(c) or (d), and the court’s “Guidelines for Motions Seeking Authority to Use Cash Collateral and Motions Seeking Approval of Postpetition Financing”.

(I)         Motions for Authority for the Payment of Prepetition Wages.  A motion seeking authority to pay employees of the debtor prepetition wages outstanding as of the petition date shall comply with Bankruptcy Rule 6003 and

(1)        include a schedule setting forth:

(a)        the name of each employee to whom such wages are sought to be paid:

(b)       the amount due such employee as of the petition date;

(c)        the amounts to be withheld from such wages, including all applicable payroll taxes and related benefits;

(d)       the period of time for which prepetition wages are due;

(e)        whether the employee is presently employed by the debtor; and

(2)        identify whether any of the employees constitute insiders as defined in 11 U.S.C. §101(31).

The motion shall also include a representation by the debtor that all applicable payroll taxes and related benefits due to the debtor’s employees will be paid concurrently with payment of the wages.

(J)        Motions for Authority to Maintain Prepetition Bank Accounts.  A motion seeking authority to maintain prepetition bank accounts shall include:

(1)        a schedule listing each prepetition bank account which the debtor seeks to maintain postpetition;

(2)        the amount on deposit in each such account as of the petition date; and

(3)        whether the depository is an authorized depository pursuant to 11 U.S.C. §345(b).

If the debtor is unable to provide the foregoing information, the motion shall set forth the reason why such information is not available, and provide an estimate as to when the debtor shall be able to supplement its motion with such information.

(K)       Motions for Authority to Pay Prepetition Claims.  A motion seeking authority to pay prepetition claims deemed critical by the debtor shall include:

(1)        a schedule of the names of each claimant;

(2)        the amount due each claimant;

(3)        a description of the goods or services provided to the debtor by each claimant;

(4)        facts and law supporting payment of the prepetition debt under the doctrine of necessity and Bankruptcy Rule 6003; and

(5)        whether the claimant has made any concession or other agreement in consideration for the proposed payment, including the extension of postpetition trade credit.

(L)        Utility Service – Adequate Assurance Motion.

(1)        When a Motion is Required.  No motion is required where the trustee or the debtor have reached an agreement with the utility company on the adequate assurance of future payment pursuant to 11 U.S.C. §§366(b) or (c).  Where there is no agreement, the trustee or the debtor shall file a motion that complies with the requirements stated in subdivision (2) below seeking a determination by the court that the assurance of payment furnished by the trustee or the debtor constitutes adequate assurance of payment necessary under 11 U.S.C. §§366(b) or (c).

(2)        Content of Motion.  A motion to determine adequate assurance of payment for debtor’s utility services shall be filed and served timely so that it may be heard prior to expiration of the applicable time period set forth in sections 366(b) or (c)(2) and include:

(a)        a schedule of the names and addresses of the utilities;

(b)       a certification that movant’s attorney has contacted the utility service provider(s) and made a good faith effort to comply with the requirements under §366, prior to the filing of the motion;

(c)        the amount of the assurance payment required or paid and the form of adequate assurance the debtor has offered to furnish; and

(d)       any request for an order scheduling a hearing to resolve disputes regarding assurance.

(3)        Objection.  The utility company shall serve a written objection no later than 4:30 p.m. on the second business day prior to the scheduled hearing, or the papers submitted may not be considered at the hearing (except when the hearing is set in less than five days notice).  The objection shall set forth the location and account number for the utility service and specify the form and amount of assurance of payment that the utility demands.

(4)        Notice.  The trustee or debtor shall serve notice in compliance with the Bankruptcy Rules and Local Rule 2002-1, and specifically provide notice to any and all employee or representative of the utility company who negotiated the terms and conditions of the adequate assurance of payment.

(5)        Request for Evidentiary Hearing.  Unless otherwise requested, a motion filed in compliance with subdivision (2) above will be scheduled as an evidentiary hearing.