CAEB — New Local Bankruptcy Rule 3007-1 and Revisions to Local Bankruptcy Rules 4001-1 and 9014-1

Source: https://www.caeb.uscourts.gov//documents/forms/generalorders/GO.02-02.pdf

Sparse pages use OCR; original PDF remains authoritative.

UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF CALIFORNIA In re: NEW LOCAL BANKRUPTCY RULE 3007-1 AND REVISIONS TO LOCAL BANKRUPTCY RULES 4001-1 AND 9014-1 GENERAL ORDER 02-02 Sa SS Notice and opportunity for public comment having been given in accordance with Federal Rule of Bankruptcy Procedure 9029, and those comments received having been duly reviewed and considered by the Court, IT IS HEREBY ORDERED that a new Local Bankruptcy Rule 3007-1, Objections to Proofs of Claim is adopted and the revisions to Local Bankruptcy Rules 4001-1, Motions for Relief from Stay and 9014-1, Motion Calendar and Procedure are amended as set forth on the attachment hereto effective December 23, 2002. IT IS SO ORDERED. DATED: December 23, 2002 Michael S. McManus Christopher M. Klein Chief Bankruptcy Judge Bankruptcy Judge
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LOCAL RULE 3007-1 Objections to Proofs of Claim

(a) Where necessary to the proper and timely administration of the bankruptcy estate, the debtor, debtor-in-possession, or trustee, as appropriate, shall, and other parties in interest may, examine proofs of claim filed in the case and file objections to those proofs of claim. Except to the extent provided otherwise in this Local Rule, objections shall comply with LBR 9014-1 and any other applicable Local Rule.

(b) Each objection shall include the name of the claimant, the date the proof of claim was filed with the Court, the claim number assigned by the Court, if any, and the amount of the claim. Unless the basis for the objection appears on the face of the proof of claim, the objection shall be accompanied by evidence establishing its factual allegations and demonstrating that the proof of claim should be disallowed. A mere assertion that the proof of claim is not valid or that the debt is not owed is not sufficient to overcome the presumptive validity of the proof of claim. A complete copy of the proof of claim as filed with the Court shall be included as an exhibit or appendix to the objection.

(c) Unless the Court orders otherwise, a separate objection shall be filed to each proof of claim.

(d) Amount of Notice on Objections.

(1) Objections set on 44 days’ notice. Unless the objecting party elects to give the notice permitted by LBR 3007-1(d)(2), the objecting party shall file and serve the objection at least forty-four (44) calendar days prior to the hearing date.

(i) Opposition. Opposition, if any, to the sustaining of the objection shall be in writing and shall be served and filed with the Court by the responding party at least fourteen (14) calendar days preceding the date or continued date of the hearing. Without good cause, no party shall be heard in opposition to an objection at oral argument if written opposition to the objection has not been timely filed. Failure of the responding party to timely file written opposition may be deemed a waiver of any opposition to the sustaining of the objection or may result in the imposition of sanctions.

The opposition shall specify whether the responding party consents to the Court’s resolution of disputed material factual issues pursuant to FRCivP 43(e) as made applicable by FRBP 9017. If the responding party does not so consent, the opposition shall include a separate statement identifying each disputed material factual

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issue. The separate statement shall enumerate discretely each of the disputed material factual issues and cite the particular portions of the record demonstrating that a factual issue is both material and in dispute. Failure to file the separate statement shall be construed as consent to resolution of the objection and all disputed material factual issues pursuant to FRCivP 43(e).

(ii) Reply. The objecting party may, at least seven (7) calendar days prior to the date of the hearing, serve and file with the Court a reply to any written opposition filed by a responding party.

If the objecting party does not consent to the Court’s resolution of disputed material factual issues pursuant to FRCivP 43(e), the objecting party shall file and serve, within the time required for a reply, a separate statement identifying each disputed material factual issue. The separate statement shall enumerate discretely each of the disputed material factual issues and cite the particular portions of the record demonstrating that a factual issue is both material and in dispute. Failure to file the separate statement shall be construed as consent to resolution of the objection and all disputed material factual issues pursuant to FRCivP 43(e).

Unless the Court determines that an evidentiary hearing is necessary, the evidentiary record closes upon expiration of the time for the filing of the reply.

(iii) Prior to the noticed hearing date, counsel may bring to the Court’s attention relevant judicial opinions published after the date the opposition or reply was filed by filing and serving a Statement of Recent Development, containing a citation to and providing a copy of the new opinion without argument. No memoranda, declarations or documents other than those specified in this Local Rule shall be filed without prior Court approval.

(2) Objection set on 30 days’ notice. Alternatively, the objecting party may file and serve the objection at least thirty (30) calendar days prior to the hearing date. When fewer than forty-four (44) calendar days’ notice of a hearing is given, no party in interest shall be required to file written opposition to the objection. Opposition, if any, shall be presented at the hearing on the objection. If opposition is presented, or if there is other good cause, the Court may continue the hearing to permit the filing of evidence and briefs.

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LOCAL RULE 4001-1 Motions for Relief from Stay

(a) Motions for relief from the automatic stay of 11 U.S.C. § 362(a) shall be set for hearing in accordance with LBR 9014-1. However, if a movant wishes to invoke the time constraints of 11 U.S.C. § 362(e), the motion shall be set for hearing pursuant to paragraph (f)(1) of LBR 9014-1.

(b) Relief from the automatic stay will not be granted if the movant utilizes the notice and opportunity for hearing procedure defined in 11 U.S.C. § 102(1). A hearing must be set on every motion for relief from the automatic stay. See LBR 9014-1.

(c) Relief from Stay Information Sheet. The movant shall file and serve as a separate document a completed Relief from Stay Information Sheet (EDC Approved Form 3-468) with each motion for relief from the automatic stay.

(d) Motions In Chapter 12 and 13 Cases. If relief from the automatic stay is sought in a chapter 12 or 13 case, the motion shall include the following:

(1) When the motion alleges that the debtor or the trustee
has failed to maintain postpetition payments on an obligation
secured by real or personal property, including, but not
limited to, installment payments and lease payments,

(i) the motion shall include a verified statement
showing all postpetition payments and other obligations
that have accrued and all payments received postpetition,
the dates of the postpetition payments, and the
obligation(s) to which each of the postpetition payments
was applied; and

(ii) the motion shall state whether a contract or
applicable nonbankruptcy law requires that the debtor be
given a statement, payment coupon, invoice, or other
comparable document and whether such document was sent to
the debtor or the trustee as to any postpetition
payment(s) allegedly not made by the debtor or the
trustee; and

(iii) if a document of the kind described in the
preceding subparagraph was not sent, or if a contract or
applicable nonbankruptcy law does not require one to be
sent, the motion shall state whether the debtor or the
trustee was advised prior to the filing of the motion of
the alleged delinquency and given an opportunity to cure
it.

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(2) If the motion asserts that the automatic stay should be modified or terminated because the debtor has failed to make plan payments to the chapter 12 or 13 trustee, the movant shall include in the motion a certification that the movant or its counsel conferred with the chapter 12 or 13 trustee before the motion was filed and confirmed that the alleged delinquency under the plan was outstanding within ten (10) days of the filing of the motion. This requirement may be satisfied by downloading from the trustee’s Internet site, and attaching to the motion, a report indicating that the alleged delinquency was outstanding within ten (10) days prior to the filing of the motion. If the movant does not confer with the trustee, the motion shall detail the attempts made to confer with the trustee or explain why no such attempt was made.

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Local Rule 9014-1 Motion Calendar and Procedure

(a) Applicability. Parties shall file, serve, and set for hearing all contested matters, including motions, whether filed in the bankruptcy case or in an adversary proceeding, objections, applications, and other matters for which a hearing is necessary (hereafter referred to collectively as motions), in accordance with this Local Rule, any other applicable Local Rules, and the applicable provisions of Title 11 of the United States Code and the Federal Rules of Bankruptcy Procedure. Except as otherwise provided in LBR 3007-1, this Local Rule shall apply to objections to proofs of claim.

(b) Motion Calendar.

(1) Each judge of the Court shall maintain his or her
department’s individual motion calendar. All hearings shall
be set on the motion calendar of the department to which the
case is assigned. A party shall self-set a motion for hearing
on the dates and times specified on each department’s motion
calendar.

(2) Each judge’s motion calendar and instructions for self-
setting hearings are posted on the Court’s Internet site,
www.caeb.uscourts.gov, and are also available from the Clerk’s
Office at the public counters.

(c) Docket Control Number.

(1) In motions filed in the bankruptcy case, a Docket Control Number (designated as DC No.) shall be included by all parties immediately below the case number on all pleadings and other documents, including proofs of service, filed in support of or opposition to motions.

(2) In motions filed in adversary proceedings, the Docket Control Number shall be placed immediately below the adversary number.

(3) The Docket Control Number shall consist of not more than three letters, which may be the initials of the attorney for the moving party (e.g., first, middle, and last name) or the first three initials of the law firm for the moving party, and the number that is one number higher than the number of motions previously filed by said attorney or law firm in connection with that specific bankruptcy case.

Example: the first Docket Control Number assigned to attorney John D. Doe would be DC No. JDD-1, the second DC No. JDD-2,

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the third DC No. JDD-3, and so on. This sequence would be repeated for each specific bankruptcy case and adversary proceeding in which said attorney or law firm filed motions.

(4) Once a Docket Control Number is assigned, all related
papers filed by any party, including motions for orders
shortening the amount of notice, shall include the same
number. However, motions for reconsideration and
countermotions shall be treated as separate motions with a new
Docket Control Number assigned in the manner provided for
above.

(d) Format and Content of Motions and Notices.

(1) Format. All pleadings and documents filed in support and
in opposition to a motion shall contain in the caption the
date and time of the hearing and the courtroom in which the
hearing will be held. All pleadings and documents filed in
support and in opposition to a motion shall conform with the
Court’s Guidelines for the Preparation of Documents, effective
December 1, 1999, or as thereafter amended.

(2) Separate Notice. Every motion shall be accompanied by a
separate notice of hearing stating the docket control number,
the date and time of the hearing, the location of the
courthouse, the name of the judge hearing the motion, and the
courtroom in which the hearing will be held.

(3) Contents of Notice. The notice of hearing shall advise
potential respondents whether and when written opposition must
be filed, the deadline for filing and serving it, and the
names and addresses of the persons who must be served with any
opposition. If written opposition is required, the notice of
hearing shall advise potential respondents that the failure to
file timely written opposition may result in the motion being
resolved without oral argument and the striking of untimely
written opposition.

(4) Service of Notice Only. When notice of a motion is
served without the motion or supporting papers, the notice of
hearing shall also succinctly and sufficiently describe the
nature of the relief being requested and set forth the
essential facts necessary for a party to determine whether to
oppose the motion. However, the motion and supporting papers
shall be served on those parties who have requested special
notice and those who are directly affected by the requested
relief.

(5) Legal Authority. Each motion, opposition, and reply
shall cite the legal authority relied upon by the filing
party.

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(6) Evidence. Every motion shall be accompanied by evidence establishing its factual allegations and demonstrating that the movant is entitled to the relief requested. Affidavits and declarations shall comply with FRCivP 56(e).

(e) Service and Proof of Service.

(1) Service of all pleadings and documents filed in support
of, or in opposition to, a motion shall be made on or before
the date they are filed with the Court.

(2) A proof of service, in the form of a certificate of
service, shall be filed with the Clerk concurrently with the
pleadings or documents served, or not more than three (3)
calendar days after they are filed.

(3) The proof of service for all pleadings and documents
filed in support or opposition to a motion shall be filed as
a separate document and shall bear the Docket Control Number.
Copies of the pleadings and documents served shall not be
attached to the proof of service. Instead, the proof of
service shall identify the title of the pleadings and
documents served.

(f) Amount of Notice.

(1) Motions set on 28 days’ notice. Unless additional notice
is required by the Federal Rules of Bankruptcy Procedure or
these Local Rules, or the moving party elects to give the
notice permitted by LBR 9014-1(f)(2), the moving party shall
file and serve the motion at least twenty-eight (28) calendar
days prior to the hearing date.

(i) If the motion is a motion for relief from the
automatic stay, it shall be the duty of the moving party
to set a hearing within thirty (30) days of the filing of
the motion. The failure of the moving party to set the
hearing within thirty (30) days shall be deemed a waiver
of the time constraints of 11 U.S.C. § 362(e).

(ii) Opposition. Opposition, if any, to the granting of
the motion shall be in writing and shall be served and
filed with the Court by the responding party at least
fourteen (14) calendar days preceding the date or
continued date of the hearing. Opposition shall be
accompanied by evidence establishing its factual
allegations. Without good cause, no party shall be heard
in opposition to a motion at oral argument if written
opposition to the motion has not been timely filed.
Failure of the responding party to timely file written
opposition may be deemed a waiver of any opposition to

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the granting of the motion or may result in the imposition of sanctions.

The opposition shall specify whether the responding party
consents to the Court’s resolution of disputed material
factual issues pursuant to FRCivP 43(e) as made
applicable by FRBP 9017. If the responding party does
not so consent, the opposition shall include a separate
statement identifying each disputed material factual
issue. The separate statement shall enumerate discretely
each of the disputed material factual issues and cite the
particular portions of the record demonstrating that a
factual issue is both material and in dispute. Failure
to file the separate statement shall be construed as
consent to resolution of the motion and all disputed
material factual issues pursuant to FRCivP 43(e).

(iii) Reply. The moving party may, at least seven (7)
calendar days prior to the date of the hearing, serve and
file with the Court a written reply to any written
opposition filed by a responding party.

If the moving party does not consent to the Court’s
resolution of disputed material factual issues pursuant
to FRCivP 43(e), the moving party shall file and serve,
within the time required for a reply, a separate
statement identifying each disputed material factual
issue. The separate statement shall enumerate discretely
each of the disputed material factual issues and cite the
particular portions of the record demonstrating that a
factual issue is both material and in dispute. Failure
to file the separate statement shall be construed as
consent to resolution of the motion and all disputed
material factual issues pursuant to FRCivP 43(e).

Unless the Court determines that an evidentiary hearing
is necessary, the evidentiary record closes upon
expiration of the time for the filing of the reply.

(iv) Prior to the noticed hearing date, counsel may
bring to the Court’s attention relevant judicial opinions
published after the date the opposition or reply was
filed by filing and serving a Statement of Recent
Development, containing a citation to and providing a
copy of the new opinion without argument. No memoranda,
declarations or documents other than those specified in
this Local Rule shall be filed without prior Court
approval.

(2) Motions set on 14 days’ notice. Alternatively, unless additional notice is required by the Federal Rules of

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Bankruptcy Procedure or these Local Rules, the moving party may file and serve the motion at least fourteen (14) calendar days prior to the hearing date.

(i) This alternative procedure shall not be used for a motion filed in connection with an adversary proceeding.

(ii) The use of this alternative procedure in connection with a motion for relief from the automatic stay shall be deemed a waiver of the time limitations contained in 11 U.S.C. § 362(e).

(iii) When fewer than twenty-eight (28) calendar days’ notice of a hearing is given, no party in interest shall be required to file written opposition to the motion. Opposition, if any, shall be presented at the hearing on the motion. If opposition is presented, or if there is other good cause, the Court may continue the hearing to permit the filing of evidence and briefs.

(3) Orders Shortening Time. In appropriate circumstances and for good cause shown, the Court may order that the amount of notice of a hearing on a motion be shortened to fewer than fourteen (14) calendar days. Unless otherwise ordered, when the time for service is shortened to fewer than fourteen (14) calendar days or less, no written opposition is required.

(4) “First Day Orders”. In chapter 11, 12, and 13 cases, preliminary hearings on motions for “first day orders,” including, but not limited to, motions to use cash collateral, borrow money, and pay employees, shall generally be heard by the Court within two Court days of the filing of the petition. Counsel for the debtor or the trustee shall contact the chambers of the assigned judge immediately upon the filing of the petition to ascertain what notice will be required and the date and time of the hearing.

(g) Evidentiary Hearings.

(1) If the Court determines that there is a disputed material
factual issue that must be resolved before the relief
requested in the motion can be granted or denied, testimony
shall be taken in accordance with FRCivP 43(a) unless the
parties waive such right or consent to proceeding under FRCivP
43(e).

(2) The Court’s procedures for scheduling an evidentiary
hearing will be set forth in a General Order. The current
General Order is 02-01. It, and any General Order supplanting
it, are available from the Clerk’s Office at the public

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counters or on the Court’s Internet site, www.caeb.uscourts.gov.

(h) Oral Argument; Removal from Calendar; Tentative Rulings. Unless the assigned judge determines that the resolution of the motion does not require oral argument, he or she may hear appropriate and reasonable oral argument. Alternatively, the motion may be submitted upon the record and briefs on file if the parties stipulate thereto, or the judge so orders, subject to the power of the judge to reopen the matter for further briefs, oral argument or both.

Parties can ascertain which matters are resolved without oral argument and can view tentative rulings by checking the Court’s Internet site at www.caeb.uscourts.gov after 4:00 p.m. the day before the hearing. Parties appearing telephonically shall view the tentative ruling prior to the hearing.

(i) Related and Countermotions. Any countermotion or other motion related to the general subject matter of the original motion set for hearing pursuant to this Local Rule may be filed and served no later than the time opposition to the original motion is required to be filed. In the event a counter or related motion is filed by the responding party, the judge may continue the hearing on the original and all related motions so as to give the responding and moving parties reasonable opportunity to serve and file oppositions and replies to all pending motions. No written opposition need be filed to any related matter unless the matter is continued by the Court. Nothing herein shall be construed to require the filing of a counter or related motion.

(j) Continuances. Continuances of hearings must be approved by the Court. A request for a continuance may be made orally at the scheduled hearing or in advance of it if made by written application. A written application shall disclose whether all other parties in interest oppose or support the request for a continuance.

(k) Opportunity for Hearing.

(1) The notice of opportunity for hearing procedure, as
defined in 11 U.S.C. § 102(1), may only be used as permitted
in the Court’s General Order dealing with chapter 13 practice.
In all other matters, if an order is necessary or is desired
by the moving party, the motion should be set for hearing
pursuant to this Local Rule.

(2) When the notice of opportunity for hearing procedure is
used, the notice shall:

(i) Succinctly describe the action to be taken;

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(ii) State that unless written objections and/or a request for a hearing are served on the moving party and filed with the Clerk on or before the date specified in the notice, the action shall be taken;

(iii) Provide a minimum of ten (10) days after service (or the longer periods required by, e.g., FRBP 2002 or 3007) for the filing of the request for hearing or objections by a party-in-interest; and

(iv) Be filed with the Clerk and served by the moving party on all creditors, the debtor, the trustee or other persons as appropriate or required.

(3) No hearing date shall be set by the moving party unless an objection or a request for hearing is made by a party-in- interest, in which event, the moving party shall promptly set the matter for hearing by filing a notice of hearing with the Clerk and serving the notice in accordance with this Local Rule.

(4) If no objection or request for hearing is timely filed, the moving party may proceed to take any proposed action that does not require Court approval.

(l) Sanctions. Failure to comply with the requirements of this Local Rule or the provisions of other Local Rules applicable to motion practice shall constitute grounds, without limitation, to deny the motion, strike late-filed pleadings and documents, continue the hearing on the motion, deem the moving party to have waived the time limitations of 11 U.S.C. § 362(e), deny the offending party the ability to appear by telephone, or assess other appropriate sanctions.

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