Witnesses: (Revised 10/19/11)      No witnesses will be heard and no exhibits received on motions days unless the Court specifically orders otherwise in a particular case. All Evidentiary Hearings will be specially scheduled.

For Evidentiary Hearings and Trials, witnesses and counsel for the parties shall appear in person unless prior arrangements have been made with Chambers, if appropriate cause is shown, to appear by video or telephone.
 

Video Conference Procedures: (Revised 09/20/11)      Except for the limited exceptions otherwise noted in these Procedures, Judge Agresti requires Parties and their Counsel to personally appear in any pending matter including Motion Court, provided however, for non-evidentiary hearings only, Judge Agresti does permit Counsel to appear via video conference from either his Pittsburgh or Erie Courtroom for both Pittsburgh and Erie matters.

(Revised 09/20/11) ADVANCE NOTICE. Parties or Counsel wishing to participate in a hearing by video conference (or by telephone), where permitted, must advise the Court and opposing Parties at least three business days prior to the hearing in which the request to appear by video conference (or telephone) is being made. Arrangements for video conference (or telephone) participation may be made by contacting Judge Agresti’s Courtroom Deputy, Pamela Jewell for Erie cases, at 814-464-9760 or Diane Rice for Pittsburgh cases, at 412-644-4060, Ext. 105.

For purposes of efficient video conference hearings, the Moving Party should stand at the podium. The Respondent(s) may be seated, generally, at counsel table closest and to the right of the podium. Counsel must speak clearly into a microphone however when doing so please position yourself at least 4 inches away from the microphone to allow for clear audio.

(New 09/20/11) During hearings in the Erie Courtroom involving 4 or more attorneys, or during trials and evidentiary hearings, the Court staff may supply Counsel with a lapel microphone to facilitate clear recording of the hearing. Counsel are advised that a single button on the front of the lapel microphone will turn the microphone on or mute the microphone. The microphone is on when the light on top of the lapel microphone is flashing green, the microphone is muted when the light on top of the lapel microphone is flashing red. Please ensure that your lapel microphone is on when speaking. Remember to return your lapel microphone at the conclusion of the hearing.

(New 09/20/11) All microphones in the Erie and Pittsburgh Courtrooms are sensitive and Counsel should use discretion when speaking to Clients or other Counsel during or between hearings.
 

Motions generally:      (Revised 09/20/11)   The practice of filing a motion with little more than a sentence or two stating the relief being requested and then directing the Court to an accompanying brief to identify the factual predicate for the motion is strongly disfavored by Judge Agresti. Such motions are subject to summary dismissal without prejudice.

Motions in adversary proceedings and contested matters are required to “state with particularity the grounds therefor.” See Fed.R.Bankr.P. 7007, 9013. It is questionable whether the kind of “short form” motion described above meets this standard. Some attorneys file a short form motion along with a brief and attempt to adopt it by reference into the motion by directing the Court to look to the brief to learn more about the basis for the motion. For several reasons this practice is not approved.

As a matter of procedure, the Bankruptcy Rules do not contemplate adoption by reference in contested matters, see Fed.R.Bankr.P 9014. The practice is questionable at best in adversary proceedings because the brief does not qualify as a “pleading”, see Fed.R.Bankr.P 7007(a), 7010(c). On a more substantive and practical level, the practice of filing a short form motion with an accompanying brief makes it difficult for the opposing party to respond to the motion, not to mention the difficulty confronted by the Court in determining what is at issue or the basis for the motion. Although the Court appreciates and encourages the practice of filing an accompanying brief with a motion, it is expected by Judge Agresti that the brief should only contain the legal citations in support of the relief requested in the motion and argument concerning the relevant facts. The motion itself should set forth only the necessary, factual allegations to support the motion and a clear statement of the relief being requested. Also, in preparing the allegations of fact in the motion, the Movant should strike a balance between the particularity requirement of Rule 9013 and the general, federal philosophy of short, concise “notice pleading” filings.

For the above reasons, Judge Agresti expects that motions will be in numbered paragraph form and will themselves contain a sufficient factual predicate so as to enable opposing parties and the Court to determine the grounds for the motion without the need to refer to an accompanying brief to identify the required factual predicate for the motion. The same applies to “responses” to motions, which, incidentally, are properly denominated as that - “response to motion” - rather than as an “objection,” “answer,” or other term.
 

Exhibits: (Revised 08/24/12)      Unless otherwise directed to do so sooner, Counsel must provide the Court with three (3) copies of the marked exhibits three (3) full business days prior to the date set for the commencement of any proceeding in which exhibits are to be offered. Each Party shall make an additional set of exhibits available for use by witnesses at the time of the taking of evidence in any proceeding. All exhibits must be marked by Counsel using appropriate exhibit labels. The labels must be marked to identify the proponent of the exhibit and the date of the proceeding in which it is used. Plaintiffs/Movants shall identify their exhibits by using letters. Defendants/ Respondents shall use exhibit numbers..

In addition to the other requirements of this Procedure, if any Party’s exhibits cumulatively number, in total aggregate, in excess of 20, single-sided, pages (not including an “Exhibit List” cover page index) they shall be bound in some manner, i.e., in loose-leaf notebook or hard binding, at the time of presentation to the Court and for use during any proceeding. The lower right hand corner of each page of the collective exhibit document shall be consecutively numbered (Bates Stamp numbering) from the first page to the last page, independent of exhibit identification numbers previously placed on exhibits. The Party shall also provide the Court with a CD, USB drive or similar electronic medium containing the scanned exhibits in PDF format prior to the start of the proceeding with Bates Stamp numbering that matches the 3 hard copies provided. Counsel should contact the Court’s Chambers, if necessary, to ensure that the electronic medium is compatible with the Court’s computer system. Exhibits are NOT to be emailed to Chambers without prior Court approval.
 

Communication with the Court:       (Revised: 09/01/09) Outside of scheduling matters, e.g., the setting of an argument/hearing or status conference and matters of an emergency nature, communication with the Court by Counsel related to a pending matter should normally be done only by way of an electronically filed pleading, motion, brief or other document. Furthermore, given the demonstrated effectiveness of the CM/ECF system, unless otherwise directed by the Court, it is not necessary for Counsel to supply the Court with paper “courtesy” copies of filed documents. See also Procedure A(2), above.

Although the use of letters addressed to the Court related to a pending matter is disfavored, there are certain limited circumstances in which it will be acceptable for Counsel to communicate with the Court by letter. These are: (1) for non-substantive scheduling or housekeeping matters, (2) if the Court has directed Counsel to respond to it on a matter by way of letter, and (3) where for some reason (e.g., confidentiality) the Court has directed an item to be sent directly to it, rather than filed electronically, and Counsel includes a cover letter with the submission. In circumstances where communication by letter is acceptable, Counsel should take care to copy others with the letter as necessary to avoid any improper ex parte communication issue, and are advised that it is the Court’s normal practice to docket any letters received on a pending matter. Counsel are further advised that the Court may impose a monetary sanction if the letter is docketed and appropriate CM/ECF training qualification has not been obtained by Counsel.

Telephone communication with the Judge’s staff on a pending matter is permissible only as to non-substantive scheduling and housekeeping matters.
 

Cases Ready for Trustee’s Final Account/Report:      (New: 6/8/07)   In Chapter 13 cases involving a 60 month plan and following completion of the 60th month from Plan Confirmation, the Court routinely schedules Status Conferences to determine the need for entering a schedule for implementation of close out procedures.

In cases involving a plan having duration of less than 60 months (e.g., 36 months, 48 months, etc.), the Court requires Debtor’s Counsel to file a Motion requesting a Status Conference to determine whether Court intervention is needed to close out the case in instances where the case has not been closed within 4 months of the end of the plan term.

In any such Motion for Status Conference, Counsel should advise the Court as to whether (1) the plan base is met; (2) the date on which the plan duration has run; and, (3) within 4 months of either event, whether the Chapter 13 Trustee has filed a final account/report or taken some other action toward closing the case (i.e., notifying Debtors that they are to assume responsibility with the mortgage payments and cease making payments to the Trustee).

Service of the Motion including any scheduling notice related thereto shall be made upon the Chapter 13 Trustee. Nothing contained in these procedures should be deemed or construed to eliminate the Chapter 13 Trustee's responsibility to promptly close-out Chapter 13 cases where the plan term has expired and the plan goals (and base) have been met.
 

Failure to file Certificate of No Objection:     (Revised: 09/01/09)   If a Certificate of No Objection is required in any case and timely filed, the matter will be removed from the calendar by entry of a default order. If a Certificate of No Objection is not timely filed, the matter will remain on the calendar and counsel must appear at the hearing and explain to the Court why a CNO was not timely filed.

The CNO procedure is vital to the efficient operation of Ch. 13 Motions Court. Because of the large volume of matters requiring hearing, it is imperative for the CNO process to work effectively and eliminate the need for hearings when possible. As such, it has become necessary for the Court to strictly enforce the Local Rules requiring the use of the CNO process in Ch. 13 matters. The unexcused failure of counsel to adhere to the requirements of the Local Rules in this regard exposes counsel to a $100 sanction, after notice and hearing.
 

Unexcused Failure to Attend Hearings:    (Revised: 2/15/06)   An additional burden is placed on the system when Debtor’s Counsel, without appropriate explanation or prior contact with the Trustee’s Office, fails to appear at a Section 341 Meeting or conciliation/confirmation conference conducted by the Ch. 13 Trustee.

Failure of Debtor’s Counsel to attend without either obtaining a prior order continuing a previously scheduled Section 341 Meeting or conciliation/confirmation conference, or, in the event of an emergency, making a timely phone call to the Ch. 13 Trustee advising her of the need to reschedule the same, evidences a lack of professionalism and failure to afford the proper courtesy due a fellow member of the Bar in addition to unduly burdening the Ch. 13 process and the system, generally, requiring additional, unnecessary hearings. It is this Court’s policy that such conduct exposes counsel to a $100 sanction, after notice and hearing.
 

Amendments to Plans Previously Confirmed on a Final Basis:    (Revised: 4/14/08)   (See: TPA FORM 203) It is not necessary to file a Motion to Modify when an amendment to a finally confirmed Chapter 12 or 13 Plan is sought. Instead, the proponent must file a “Notice of Proposed Modification to Confirmed Plan Dated (insert date)”, which substantially complies with TPA Form 203 found on Judge Agresti’s website, and, the proposed Amended Chapter 12 or 13 Plan, as the case may be, together as a single PDF document with the Notice being the first page. Further instructions as to implementation for the process can be found at http://www.pawb.uscourts.gov/forms.htm.

If these two items are correctly filed, the proposed amendment will follow the Court’s standard conciliation/confirmation process. Of course, when Counsel serves the Amended Plan on all creditors, counsel should also serve the Notice of Proposed Modification as well and file a Certificate of Service.

If Counsel fails to include the Notice of Proposed Modification to Confirmed Plan as the first page of the PDF, then the Court will issue a corrective entry and allow 10 days to file the documents correctly. Failure to timely make the correction will result in the entry of an Order denying confirmation of the Amended Plan without prejudice for failure to adhere with these procedures.

Note: To avoid duplicate service, Debtor(s) should not serve copies of the Notice and Amended Plan until after receiving the Order Scheduling Dates for Hearing on and Objection to Amended Plan.