Part Nine, General Provisions

 


9006-1. Enlargement Or Shortening Of Time.

(a) Requirements for Changing Time. Except as provided in paragraph (b), approval of the Court is required to enlarge or to shorten time to perform any act or to file any paper pursuant to the Federal Rules of Civil Procedure, Federal Rules of Bankruptcy Procedure, or these Bankruptcy Local Rules.

(b) Stipulation for Changing Time. Parties may stipulate in writing, without a Court order, to extend the time within which to answer or otherwise respond to the complaint or to enlarge or shorten the time in matters not required to be filed with the Court, provided the change will not alter the date of any hearing or conference set by the Court. Such stipulations shall be promptly filed pursuant to B.L.R. 1002-1

(c) Requests for Changing time. Any request to enlarge or shorten time may be made by stipulation or motion. Absent exigent circumstances, any motion shall be heard on at least 72 hours notice to the respondent. Any request, whether made by stipulation or motion, shall be accompanied by a declaration stating:

(1) The reason for the particular enlargement or shortening of time requested;

(2) Previous time modifications related to the subject of the request, whether by stipulation or Court order;

(3) The effect of the requested time modification on the schedule for the case or proceeding; and

(4) Where the request is not made by stipulation, the efforts made to speak with the respondent and, if the movant has spoken with the respondent, the reasons given for any refusal to agree to the request.

Return to Top of Page

9010-1. Appearance of Corporation or Partnership Through Counsel.

(a) Appearance and Filing of Papers. A corporation, partnership, or any entity other than a natural person may not appear as a party in an adversary proceeding or a contested matter or as a debtor in a bankruptcy case except through counsel admitted to practice in this District. Petitions and pleadings from parties who are not individuals must bear the signature of an attorney B.L.R. 9010-1.

(b) Chapter 11 Cases. A corporation, partnership, or any entity other than a natural person may not serve as a debtor-in-possession in a Chapter 11 case unless represented by counsel. If a corporation or partnership does not obtain Court approval of counsel promptly, the Court, after notice as prescribed by Fed. R. Bankr. P. 2002(a), may dismiss the case, order it converted to Chapter 7, or order the appointment of a trustee.

(c) Excepted Matters. Nothing herein shall preclude a corporation, partnership, or any entity other than a natural person from filing a proof of claim, an application for compensation, a reaffirmation agreement, or from appearing at a meeting of creditors through an officer or other authorized agent.

Cross Reference See Fed. R. Bankr. P. 9010.

Return to Top of Page

9011-1. Sanctions and Penalties for Non-compliance.

Any petition, schedule, statement, declaration, claim or other document filed and signed or subscribed under any method (digital, electronic, scanned) adopted under the rules of this Court shall be treated for all purposes (both civil and criminal, including penalties for perjury) in the same manner as though manually signed or subscribed.

Failure of counsel or of a party to comply with any provision of these rules or the Federal Rules of Bankruptcy Procedure shall be grounds for imposition by the Court of appropriate sanctions.

Return to Top of Page

9013-1. Motion Papers.

(a) Matters Covered by Rule. This rule shall apply to initial papers, response papers, and reply papers in any case or adversary proceeding.

(b) Form. Initial papers shall include the following separate documents:

(1) The first document, Notice of Hearing, shall state the date and time of hearing (if any);

(2) The second document, the Motion, shall provide a concise statement of what relief or Court action the movant seeks; and

(3) The third document, the Memorandum of Points and Authorities, shall provide a statement of the issues to be decided, a succinct statement of the relevant facts, and the argument of the party, citing supporting authorities.

(c) Length. Unless the Court expressly orders otherwise, initial papers and response papers shall not exceed 25 pages of text, and reply papers shall not exceed 15 pages of text. Any papers exceeding 10 pages of text shall also include a table of contents and a table of authorities.

(d) Affidavits or Declarations.

(1) Factual contentions made in support of or in opposition to any motion, application or objection should be supported by affidavits or declarations and appropriate references to the record. Extracts from depositions, interrogatory answers, requests for admission and other evidentiary matter must be appropriately authenticated by affidavit or declaration.

(2) Affidavits and declarations shall contain only facts, shall conform as far as possible to the requirements of Fed. R. Civ. P. 56(e), and shall avoid conclusions and argument. Any statement made upon information or belief shall specify the basis therefor. Affidavits and declarations not in compliance with this rule may be stricken in whole or in part.

(3) Each affidavit or declaration shall be filed as a separate document.

(e) Supplementary Materials. 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. Otherwise, once a reply is filed, no additional memoranda, papers or letters shall be filed without prior Court approval.

Return to Top of Page

9013-2. Motions; To Whom Made.

(a) Assigned Case. Motions, applications and objections will be determined by the Judge to whom the case or proceeding is assigned, except as may be otherwise ordered by the assigned Judge. In the Judge's discretion, or upon request by counsel and with the Judge's approval, a motion may be determined without oral argument, or by conference telephone call.

(b) Unassigned Case or Judge Unavailable. A motion, application, or objection may be presented to any other Bankruptcy Judge of the same division as the assigned Judge or, if no such Judge is available, to the Chief Bankruptcy Judge or Acting Chief Bankruptcy Judge when:

(1) The assigned Judge is unavailable and an emergency requires prompt action; or

(2) An order is necessary before an action or proceeding can be filed.

(c) Unavailable. For purposes of this rule, a Judge is unavailable if the Judge has filed a certificate of unavailability or such unavailability is certified by the Judge's courtroom deputy, law clerk, judicial assistant or secretary.

Return to Top of Page

9013-3. Service.

(a) Service by Mail. The time limits established in these Bankruptcy Local Rules contemplate that, unless otherwise ordered, service of all papers governed by these rules will be accomplished by first class mail.

(b) Certificate of Service. A certificate of service shall identify the capacity in which the person or entity was served. Capacity to be identified includes: Debtor(s); Attorney for Debtor(s); Trustee; Attorney for Trustee; Twenty Largest Unsecured Creditors; and Special Notice List. If notice to the 20 largest unsecured creditors is required, and there are less than 20 unsecured creditors of the estate, the certificate of service shall also indicate that all unsecured creditors were served. This rule shall not apply to motions and applications served on all creditors or motions in adversary proceedings.

(c) Notwithstanding subparagraph (a) of this rule, transmission of the notice of electronic filing by the clerk shall constitute effective service of all papers and notices governed by Fed. R. Bank. P. 7005, Fed. R. Bank. 9014(b) (except motions), and Fed. R. Bankr. P. 9022.

 

Commentary

 

Service of initiating papers, such as the summons and complaint in an adversary proceeding or a motion for stay relief or other contested matter, are not governed by this rule and must still be made by paper. Likewise, general notices to creditors pursuant to Fed. R. Bank. P. 2002 must still be served by mail and are not governed by this rule.

However, service of papers governed by FRCivP 5, including answers to complaints, motions in adversary proceedings, responses to motions, etc., is governed by this rule. Each CM/ECF participant who has appeared in the case or adversary proceeding receives an email from the Court containing a link to the paper upon its filing. This rule makes service by electronic mail effective service of these matters. As to matters governed by this rule, filing parties need only serve by mail persons who are not CM/ECF participants.

Cross Reference See Fed. R. Bankr. P. 9013.

Return to Top of Page

9014-1. Case Motions and Objections.

(a) Matters Covered By Rule. This rule shall apply to any motion, application or objection with respect to which the Bankruptcy Code provides that relief may be obtained after "notice and a hearing" or similar phrase, but does not apply to: (1) motions for relief from the automatic stay; (2) proceedings that must be initiated by complaint under Fed. R. Bankr. P. 7001 (adversary proceedings) or motions therein; (3) hearings on approval of disclosure statements and confirmation of Chapter 11, 12 and 13 plans; and (4) matters that may properly be presented to a Judge ex parte.

(b) Procedures For Hearings and Disposition.

(1) Hearing Required. Unless otherwise ordered, the following shall be set for an actual hearing:

(A) Motions governed by Fed. R. Bankr. P. 4001 (b), (c), and (d) other than motions to approve agreements to modify or terminate the automatic stay;

(B) Hearings on applications for compensation or reimbursement of expenses, totaling in excess of $1,000, other than applications for compensation for appraisers, auctioneers, and real estate brokers;

(C) Motions to dismiss a case, other than a debtor's request for dismissal under 11 U.S.C. §§ 1208(b) or 1307(b), or a Chapter 13 trustee's request for dismissal under 11 U.S.C. § 1307(c);

(D) Motions to appoint a trustee or an examiner; and

(E) Objections to a debtor's claim of exemption.

(2) Hearing Permitted. In addition to the required hearings described in B.L.R. 9014-1(b)(1), any matter within the scope of this rule may be set for a hearing.

(3) Notice and Opportunity for Hearing. Unless otherwise ordered, a party in interest may initiate a request for relief, without setting a hearing, regarding any matter within the scope of this rule, other than those matters described in B.L.R. 9014-1(b)(1).

(A) Notice. A request for relief governed by B.L.R. 9014-1(b)(3) shall be accompanied by a Notice and Opportunity for Hearing and shall state conspicuously:

(i) That Bankruptcy Local Rule 9014-1 of the United States Bankruptcy Court for the Northern District of California prescribes the procedures to be followed and that any objection to the requested relief, or a request for hearing on the matter, must be filed and served upon the initiating party within 20 days of mailing of the notice;

(ii) That a request for hearing or objection must be accompanied by any declarations or memoranda of law the party objecting or requesting wishes to present in support of its position;

(iii) That if there is not a timely objection to the requested relief or a request for hearing, the Court may enter an order granting the relief by default; and

(iv) Either:

(a) That the initiating party will give at least 10 days written notice of hearing to the objecting or requesting party, and to any trustee or committee appointed in the case, in the event an objection or request for hearing is timely made; or

(b) The tentative hearing date.

(B) Procedure for Tentative Hearing Dates. A tentative hearing shall be set at least 10 calendar days after the last date for parties to file objections or requests for hearings in accordance with B.L.R. 9014-1(b)(3)(A)(i). The tentative hearing will not go forward unless an objection or request for hearing is timely filed and served, in which case the party initiating the proceedings under B.L.R. 9014-1(b)(3) shall file and serve not less than 5 days before the hearing, notice that the tentative hearing will be conducted as an actual hearing. Such Notice of Hearing is to be in writing, and is to be given to the objecting or requesting party, any trustee and any committee appointed in the case, and the Court. The Court will not schedule the matter on the judge’s calendar unless the Notice of Hearing has been filed and served timely. The initiating party shall also give 5 days telephonic notice to the Judge's Calendar Clerk/Courtroom Deputy that the tentative hearing will be an actual hearing.

(C) Conduct of Hearing. At the hearing the Court will proceed in accordance with B.L.R. 3007-1 on objections to claims. On other matters in which the Court determines that there is a genuine issue of material fact, the Court may treat the hearing as a status conference and schedule further hearings as appropriate.

(4) Relief Upon Default. When no objection or request for a hearing has been filed or served within the time provided in B.L.R. 9014-1(b)(3)(A)(i), the initiating party may request relief by default by submitting a request for entry of an order by default and a proposed order. A copy of the original motion, application, or objection shall be attached to the request. On an objection to claim, a copy of the claim, absent any attachments or exhibits, shall also be included. The request shall be accompanied by a certificate of service of the papers initiating the request, and a declaration confirming that no response has been received.

(A) In the case of an objection to a claim, a motion to avoid a lien pursuant to 11 U.S.C. § 522(f), or other request for relief as against an identified, named entity, the request for entry of order by default shall be served upon the entity against whom relief is sought. If relief is sought against any entity that has filed a claim, all papers shall be mailed to the address shown on the proof of claim.

(B) In cases seeking relief generally, and not against an identified, named entity, the request for entry of order by default and related papers shall be served upon the debtor, any trustee, and any committee of unsecured creditors that has been appointed in the case.

(C) Upon filing of an appropriate request for entry of an order by default, with service in accordance with B.L.R. 9014-1(b)(4), the Court may grant the requested relief.

(c) Schedule For Filing of Papers.

(1) Where the matter is governed by B.L.R. 9014-1(b)(1), or the initiating party desires a hearing under B.L.R. 9014-1(b)(2), and relief is sought against an identified, named entity, the motion, notice of hearing, supporting declarations, memoranda, and all other papers shall be filed and served at least 28 days before the actual scheduled hearing date. Any opposition shall be filed and served on the initiating party at least 14 days prior to the actual scheduled hearing date. Any reply shall be filed and served at least seven days prior to the actual scheduled hearing date. Notwithstanding the foregoing, no responsive pleading to an objection to a claim of exemption shall be required.

(2) Where the matter is governed by B.L.R. 9014-1(b)(1) or (b)(2) and relief is sought generally, and not against an identified, named entity, the motion or application, notice of the hearing, supporting declarations, memoranda, and all other papers shall be filed and served at least 20 days before the actual scheduled hearing date. Any opposition to the requested relief shall be filed and served on the initiating party no less than 5 days before the actual scheduled hearing date.

(3) Where the matter is governed by B.L.R. 9014-1(b)(3), the initiating party may file and serve any reply to the objecting party's opposition no less than 5 days before the hearing.

(d) Notice For Sale of Certain Personal Property. A Chapter 7 Trustee may, without the necessity of an order shortening time:

(1) Set for hearing on 10 days notice any motion to sell property of the estate free and clear of, or subject to liens, if the subject property is situated on leased premises for which the estate is accruing periodic administrative rent; and

(2) Move to assume and assign (but not just to assume) or to reject an unexpired lease of nonresidential real property where the debtor is the tenant as provided in B.L.R. 6006-1(a).

(3) Opposition to motions made pursuant to this subparagraph may be presented at or before the hearing.

Return to Top of Page

9015-1. Jury Trial of Right.

FRCivP 38(a)-(d) applies in adversary proceedings.

Return to Top of Page

9015-2. Jury Trials and Personal Injury and Wrongful Death Claims.

(a) Determination of Right. In any proceeding in which a demand for jury trial is made, the Bankruptcy Judge shall, upon the motion of one of the parties, or upon the Bankruptcy Judge's own motion, determine whether the demand was timely made and whether the demanding party has a right to a jury trial. The Bankruptcy Judge may, on the Judge's own motion, determine that there is no right to a jury trial in a proceeding even if all of the parties have consented to a jury trial.

(b) Certification to District Court. If the Bankruptcy Judge determines that the demand was timely made and the party has a right to a jury trial, and if all parties have not filed written consent to a jury trial before the Bankruptcy Judge, the Bankruptcy Judge shall certify to the District Court that the proceeding is to be tried by a jury and that the parties have not consented to a jury trial in the Bankruptcy Court. Upon such certification, reference of the proceeding shall be automatically withdrawn, and the proceeding assigned to a Judge of the District Court pursuant to the Assignment Plan.

(c) Jury Trial in Bankruptcy Court. The Bankruptcy Judges of this District are hereby specially designated to conduct jury trials pursuant to 28 U.S.C. § 157(e). If the Bankruptcy Judge determines that a jury demand was timely made and the demanding party has a right to jury trial, and if all parties expressly consent to a jury trial before the Bankruptcy Judge, the Bankruptcy Judge shall try the proceeding by jury and shall enter judgment at the conclusion of the trial.

(d) Personal Injury and Wrongful Death Claims. If, upon timely motion of a party or upon the Judge's own motion, the Bankruptcy Judge determines that a claim is a personal injury tort or wrongful death claim requiring trial by a District Court Judge, the Bankruptcy Judge shall certify to the District Court that the claim is one which requires trial in the District Court under 28 U.S.C. § 157(b)(5). Upon such certification, the reference of the claim shall be automatically withdrawn, and the claim assigned to a Judge of the District Court pursuant to the Assignment Plan.

(e) Procedure. In any proceeding within the jurisdiction created by 28 U.S.C. § 1334, FRCivP 38(a)-(d), 39, 47-51, and 81(c) shall govern the demand for and conduct of jury trials.

(f) Remand and Abstention. Nothing contained in this rule shall be construed to preclude the entry of any order of remand or abstention.

Return to Top of Page

9021-1. Submission of Orders.

(a) Prior to Hearings. Unless authorized by the judge, no proposed forms of orders granting or denying motions shall be submitted with the moving or opposition papers prior to hearing. A copy of a proposed form of order may be attached as an exhibit to a notice or memorandum.

(b) At Hearings. If authorized by the judge, the prevailing party may submit a proposed order to the Judge hearing the motion at the conclusion of the hearing after permitting all other counsel appearing at the hearing to review the proposed order.

(c) After Hearings. If an order is not submitted to the Judge at the conclusion of the hearing, the prevailing party, or such other party ordered to do so by the Judge hearing the motion, shall submit a proposed order to the Judge promptly thereafter. The order shall contain the signatures of any other counsel who appeared at the hearing, approving it as to form, or shall be accompanied by a certificate of service evidencing service of the proposed order on all such counsel. Orders not approved as to form will ordinarily be lodged for 7 days after service.

Return to Top of Page

9022-1. Notice of Entry of Order and Judgment.

(a) Service List. Each order or judgment submitted to the Court shall be accompanied by a Court Service List, in alphabetical order, identifying all parties required to be served with the order under applicable federal and local rules.

(b) Notice of Entry of Order. Upon the entry of each order or judgment on the court docket, the Notice of Electronic Filing shall constitute notice of entry of judgments and orders by the Court upon all Registered Participants. A paper copy of the order or judgment will be served by the Court on all parties on the court service list who are not Registered Participants. The date the order of judgment was entered will be reflected on the copy served which will constitute notice of entry of the order or judgment on non-registered parties.

Return to Top of Page

9029-1. Guidelines.

The Judges of the Bankruptcy Court or any division thereof may adopt, and as needed revise, guidelines concerning the allowance and disallowance of professional fees and expense reimbursement and the contents and format of applications therefor filed pursuant to 11 U.S.C. §§ 330(a) and 331 and Fed. R. Bankr. P. 2016(a), the contents of applications for approval of cash collateral and financing stipulations pursuant to 11 U.S.C. §§ 363(c)(2) or 364(c) and Fed. R. Bankr. P. 4001(b), (c), or (d), and such other matters as the Judges or divisions may deem appropriate. Copies of any guidelines so adopted shall be available in the Office of the Clerk of any division in which they are effective. Although referenced herein, such guidelines are not intended to be local rules, and shall not have the force and effect thereof.

Return to Top of Page

9033-1. Orders and Judgments in Non-core and Contempt Proceedings.

(a) Objections. Any objection to the proposed findings of fact and conclusions of law or proposed order or judgment in a noncore proceeding or to an order in a contempt proceeding governed by Fed. R. Bankr. P. 9020(b) shall state:

(1) The issues raised by the objections;

(2) The specific portion of the proposed findings of fact and conclusions of law or proposed judgment or order to which objection is made or, in the case of a contempt proceeding, the specific portion of the order or judgment and any accompanying findings of fact and conclusions of law, to which objection is made; and

(3) Whether the objecting party requests that oral testimony be heard by the Judge of the District Court, the reason for requesting oral testimony, and the issues on which oral testimony is requested. At the time the objection is filed, the objecting party shall file in the Bankruptcy Court a designation of the record for review, which shall include a transcript of the trial or hearing in the Bankruptcy Court.

(b) Response to Objections. Any response to the objection referred to in B.L.R. 9033-1(a) shall state:

(1) Whether oral testimony should be heard by the Judge of the District Court; and

(2) The issues on which oral testimony should be heard. At the time the response is filed, the non-objecting party shall file any additional designations of the record for review.

(c) Procedure on Objection. If an objection is filed, the Clerk of the Bankruptcy Court shall, within 30 days after the time for filing a response has expired, transmit the proposed findings of fact and conclusions of law and proposed order of judgment or, in the case of a contempt proceeding, the order or judgment and any accompanying findings of fact and conclusions of law, together with the record, to the Clerk of the District Court, who shall assign the matter to a Judge of the District Court pursuant to the Assignment Plan. The Clerk of the District Court shall give notice of the transmittal and assignment to all parties to the proceeding. A hearing on the objection, or a status conference for the purpose of determining what further proceedings are appropriate, shall be scheduled in the District Court in every proceeding in which an objection is filed in accordance with this rule.

(d) Procedure Absent Objection. If no objection is filed within the time specified, unless otherwise ordered, when the proposed order or judgment is in a non-core proceeding pursuant to 11 U.S.C. § 157(c)(1), the Clerk of the Bankruptcy Court shall transmit the proposed findings of fact and conclusions of law and proposed order or judgment to the Clerk of the District Court, with a certificate that no objection has been filed and a request that the proposed findings of fact, conclusions of law, and order or judgment be assigned to the General Duty Judge.

(e) Incomplete or Defective Objections. If an objection is filed within the time specified which does not, in the Clerk's opinion, comply substantially with this rule, the Clerk of the Bankruptcy Court shall bring the matter to the attention of the Bankruptcy Judge who issued the proposed order or judgment or, in the case of a contempt proceeding, the order or judgment. The Bankruptcy Judge may issue a recommendation that the matter be treated as if no objection had been filed as described in the preceding paragraph. The Clerk of the Bankruptcy Court shall transmit this recommendation to the Clerk of the District Court together with the proposed findings of fact and conclusions of law and proposed order or judgment or, in the case of a contempt proceeding, the order or judgment and any accompanying findings of fact and conclusions of law. The Clerk of the Bankruptcy Court shall serve a copy of the recommendation on all parties to the proceeding at the time of the transmittal.

Cross Reference See Fed. R. Bankr. P. 9020 and 9033.

Return to Top of Page