Motions generally:      (Revised: 5/22/08) 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.

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.
 

Use of Exhibits in Courtroom:       Unless otherwise directed, prior to the time set for commencement of any proceeding in which exhibits are to be offered, 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 exhibits by using letters. Defendants/Respondents shall use exhibit numbers.

Exhibits cumulatively numbering in excess of 20, single-sided, total pages (not including an "Exhibit List" cover page index) shall be bound in the same manner, i.e., in looseleaf notebook or hard binding, at the time of presentation to the Court and for use during any proceeding. Each exhibit page is to be collectively numbered in the lower right hand corner of each page of the collective exhibit document from the first page to the last page, independent of exhibit identification numbers previously placed on exhibits.

Counsel must provide the Court with a courtesy copy of the marked exhibits prior to the start of the proceeding. 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.
 

Communication with the Court:       (New: 6/17/08) Outside of the setting of an argument/hearing or status conference, 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

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.
 

Scheduling of Hearings:       Documents are to be electronically filed with the Clerk's Office. Thereafter, scheduling Orders will be issued from Chambers which schedule any required hearings and, where applicable, outline the specific procedures to be utilized. Any pleadings in Ch. 7 or Ch. 11 cases which are self-scheduled will be dismissed upon filing.

In the event that no response or answer to a particular matter has been filed, the Parties may check our web site (http://www.pawb.uscourts.gov) the afternoon before the hearing to determine if the hearing will go forward or if a default order will be entered.

Although not required, in the event no response/answer is filed per ¶B(1)(b), above, a timely filed CNO is appreciated even though the filing of the same will not automatically result in the entry of a default order and cancellation of the hearing. Matters in which a default order will be entered hereby cancelling the hearing, typically include: relief from stay motions, avoidance of liens motions and objections to claims

No documents filed less than 48 hours before a scheduled hearing will be considered by the Court at the scheduled hearing unless exigent circumstances are demonstrated in the pleading itself.
 

Cases Ready for Trustee’s Final Account/Report:       (New: 6/8/07) In 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 and 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.
 

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.