Hon. Giugliano's Procedures · U.S. Bankruptcy Court for the Eastern District of New York
=== Administrative Order No. 565 ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------x In re: Adoption of Guidelines for First Day Motions Administrative Order No. 565 ------------------------------------------------------------x UPON the resolution of the Board of Judges for the United States Bankruptcy Court for the Eastern District of New York, it is hereby ORDERED, that the annexed Guidelines for First Day Motions are adopted. Dated: Brooklyn, NY July 6, 2010 /s/Carla E. Craig________________ CARLA E. CRAIG Chief United States Bankruptcy Judge GUIDELINES FOR FIRST DAY MOTIONS 1. Statement of Purpose (a) The purpose of this document is to establish guidelines (the “Guidelines”) for “first day” motions in business chapter 11 cases in the United States Bankruptcy Court for the Eastern District of New York (the “Court”). (b) The Guidelines are designed to help practitioners identify issues that typically are of concern to the Court where motions are brought before the Court shortly after the filing of a petition and to highlight such matters so that, among other things, determinations can be made, if necessary, on an expedited basis. 2. First Day Motions and Orders (a) “First Day Orders” are orders a Debtor seeks to have entered by the Court shortly after the filing of a petition. Generally, the purpose of First Day Orders is to address administrative matters, to facilitate the transition to debtor in possession status and to ensure that a Debtor’s business and operations are stabilized. The request for a First Day Order should be made by motion (a “First Day Motion”), and a copy of the proposed First Day Order should be filed as an exhibit to the First Day Motion. The relief that may be granted by First Day Orders will depend upon the facts and circumstances of the case, the notice given and other related factors, and will take into account the needs of the Debtor and the rights of other parties in interest. (b) While the Court recognizes the necessity and appropriateness of entertaining First Day Motions, only those motions seeking and appropriately requiring emergency relief will be heard on an expedited basis. Other motions may still be filed shortly after the filing of a petition, but they should seek relief at a future hearing in accordance with 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”), the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and the Local Bankruptcy Rules for the Eastern District of New York. The early filing of these motions will serve as useful guidance to the Court as to how the case may proceed. 1 3. Select First Day Motions and Orders1 (a) Joint Administration (b) Ministerial Matters (i) among other things: This First Day Motion might request Court authorization to, (A) extend the time to file schedules of assets and liabilities and the statement of financial affairs (which ordinarily should not exceed sixty (60) days from the date of the filing of the petition); (B) establish procedures for mailing matrix/mailing issues; (C) waive the requirement to file a list of creditors in cases where a motion to retain a claims/noticing agent has been filed; and (D) use prepetition business forms, including letterhead, checks, etc. (ii) The relief listed above should, where sought, ordinarily be sought in a single omnibus motion. (iii) This First Day Motion should not include requests to use prepetition bank accounts or waive the investment requirements of section 345 of the Bankruptcy Code, which are discussed below. (c) Cash Collateral and Financing This First Day Motion should be brought in accordance with this Court’s “Guidelines for Financing Motions” adopted pursuant to Administrative Order 558 dated April 15, 2010. 1 This list does not preclude other relief from being sought on an expedited basis where necessary, and a Debtor is not required to seek all or any of the relief discussed herein. The inclusion of any item in this list should not be viewed or cited as justification for, or approval of, the legality or appropriateness of any such relief and does not guarantee that any or all of such relief will be granted. 2 (d) Cash Management Arrangements (i) This First Day Motion should describe the proposed cash management system, including the rights and any procedures for the repayment of obligations incurred thereunder, and, in cases where money will be transferred between Debtors or from a Debtor to a non-debtor affiliate, give a business purpose for such transfers. (ii) This First Day Motion should seek authorization (but not direction) for banks to follow the Debtor’s instructions with respect to clearing checks, etc. The proposed First Day Order for this First Day Motion should also state that the banks are entitled to rely on the Debtor’s representations as to which checks to clear. (iii) This First Day Motion should not request relief that is inconsistent with the relief requested in connection with any debtor in possession financing and cash collateral motions. (e) Prepetition Employee Compensation, Benefits and Business Expenses (i) This First Day Motion should disclose the gross amounts to be paid per employee or for lower level employees, by employee group (i.e., general job categories) and in the aggregate. (ii) This First Day Motion should estimate by category (salaries, commissions, reimbursable business expenses, etc.) the aggregate amounts proposed to be paid. (iii) This First Day Motion should state whether, and the extent to which, the claims proposed to be paid constitute priority claims under section 507 of the Bankruptcy Code (“Priority Claims”) and, if such claims are not Priority Claims, this First Day Motion should explain why those claims should be afforded the treatment requested. (iv) To the extent this First Day Motion requests Court authority to pay amounts in excess of the priority amount to any individual employees, a list of the names and position/job titles of all employees as to whom those excess payments will be made should be attached. The propriety of those requests will be considered on a case by case basis. There may be a need to present individual information confidentially in certain circumstances; however, the Court and the United States Trustee should receive this information (on a confidential basis where necessary). This First Day Motion should describe any relief that will be sought at a later hearing with respect to prepetition employee retention plans. (v) 3 (f) Critical Vendors (i) This First Day Motion should ordinarily be brought as a single omnibus First Day Motion. (ii) This First Day Motion and proposed First Day Order should identify, by category, the types of claims that the Debtor proposes to pay and should authorize specific non-cumulative capped amounts and describe the basis for the estimate of the expenditure. There may be a need to present vendor information confidentially in certain circumstances; however, the Court and the United States Trustee should receive this information (on a confidential basis where necessary). (iii) This First Day Motion should state whether, and the extent to which, the prepetition claims proposed to be paid constitute (or are believed to constitute) claims under section 503(b)(9) of the Bankruptcy Code and, if such claims are not administrative expense claims, this First Day Motion should explain why those claims should be afforded the treatment requested. (g) Customer Claims (i) This First Day Motion might request Court authorization to, among other things, satisfy or honor prepetition obligations with respect to refunds of deposits, lay-away plans, rebates, customer programs, warranty claims, etc. (ii) This First Day Motion and the related proposed First Day Order should (other than for claims such as warranties or rebates) specify a cap on the amount to be paid or honored per claimant and in the aggregate, and the basis for such cap. There may be a need to present customer information confidentially in certain circumstances; however, the Court and the United States Trustee should receive this information (on a confidential basis where necessary). (iii) This First Day Motion should state whether, and the extent to which, the claims proposed to be paid constitute (or are believed to constitute) Priority Claims and, if such claims are not Priority Claims, this First Day Motion should explain why those claims should be afforded the treatment requested. 4 (h) Prepetition Taxes This First Day Motion should state whether, and the extent to which, the claims proposed to be paid constitute (or are believed to constitute) trust fund taxes, ad valorem taxes that result in liens and other taxes whose nonpayment gives rise to personal liability for officers, directors or employees, or other Priority Claims. If such claims are not Priority Claims, this First Day Motion should explain why those claims should be afforded the treatment requested. (i) Investment Guidelines (i) This First Day Motion should disclose: (A) the approximate amount of funds that the Debtor proposes to invest outside the enumerated investments permitted under section 345(b) of the Bankruptcy Code; (B) the proposed types of investment to be made; and (C) whether the United States Trustee has approved the Debtor’s proposed arrangements. (ii) If the Debtor proposes to invest or deposit money in or with an entity that has not satisfied the requirements of section 345(b) of the Bankruptcy Code (a “Non-Qualified Entity”), this First Day Motion should explain why such an investment or deposit is preferred and, to the extent known, why the Non-Qualified Entity cannot or has not satisfied the requirements of section 345(b) of the Bankruptcy Code. A list of United States Trustee-approved depositaries for the Eastern District of New York can be found at www.usdoj.gov/ust/r02. (j) Administrative Procedures This First Day Motion might request Court authorization to, among other things, establish a core service list and set omnibus hearing dates. (k) Retention of Claims/Noticing Agent Where it is anticipated that more than 1,000 proofs of claim will be filed, the Debtor should retain a claims/noticing agent to receive mailed proofs of claim. In such cases, counsel should contact the Clerk’s Office for procedures involving claims/noticing agents. 5 (l) Restrictions on Certain Transfers This First Day Motion might request Court authorization to, among other things, restrict certain transfers of claims against, and equity interests in, the Debtor and establish procedures for notice of certain transfers of claims against, and equity interests in, the Debtor. 4. Extraordinary Relief (a) Any First Day Motion requesting the relief identified in Bankruptcy Rule 6003 prior to the expiry of the twenty-one (21) day period provided by Bankruptcy Rule 6003 will be considered a request for “Extraordinary Relief.” (b) If the Debtor requests any Extraordinary Relief, the First Day Motion, together with the omnibus affidavit or declaration, as applicable, should specifically state that Extraordinary Relief is sought and provide appropriate justification therefor, in accordance with E.D.N.Y. Local Bankruptcy Rule 9077-1. (c) In connection with a request for Extraordinary Relief, the Court will consider, among other factors: (i) the extent and adequacy of the notice provided; (ii) whether only the minimal relief necessary is requested on an interim basis, with a broader final order to be submitted on notice; (iii) whether an Official Committee of Unsecured Creditors appointed under section 1102 of the Bankruptcy Code (the “Creditors’ Committee”) or other parties in interest will have the ability to conduct an investigation and bring any appropriate proceedings related to the Extraordinary Relief (including, if relief is granted prior to any Creditors’ Committee appointment, a motion to modify or prospectively vacate the relief granted, if appropriate); and (iv) the urgency of the relief requested. 5. Participation of the Creditors’ Committee (a) Absent good cause shown, the Court will not grant an order approving final substantive relief with respect to any matter that is granted on an interim basis pursuant to a First Day Motion unless the Creditors’ Committee is in place for at least seven (7) days before the motion is heard. (b) Absent good cause shown, the Creditors’ Committee should be in place for at least seven (7) days before the following motions are heard: (i) Rejection of leases and executory contracts. Affected landlords and other direct counterparties should receive appropriate notice of any motion. 6 (ii) retained professionals. Procedures establishing payment of interim compensation for (iii) Approval of severance and employee retention programs. (iv) Approval of the assumption of existing employment agreements. 6. Background and Factual Support A single omnibus affidavit or declaration (or, if necessary, a small number of affidavits or declarations) should include the necessary general background as well as specific factual support for each First Day Motion, as necessary. The relevant affidavit or declaration may expressly be incorporated by reference into each motion in place of a lengthy background section of First Day Motions and other motions filed in the case. 7. Notice of First Day Motions (a) An index (the “Index”) of First Day Motions and proposed First Day Orders that includes a brief summary of the relief sought in each (which summary may be in chart form and should not generally exceed one (1) paragraph per Motion) should be prepared by the Debtor. The Index also should note which First Day Motions, if any, include a request for Extraordinary Relief. The Index should inform parties that the First Day Motions and proposed First Day Orders may be viewed on the Court’s website (http://www.nyeb.uscourts.gov/) with a login and password to the Court’s Public Access to Court Electronic Records and that copies can be obtained from the Debtor’s counsel and/or the Debtor’s noticing agent. The Index will make the hearing on the First Day Motions more efficient as well as provide additional notice to parties in interest. (b) The Index and a binder of all First Day Motions and proposed First Day Orders should ordinarily be provided to the United States Trustee, any party with a security interest in substantially all of the Debtor’s assets and, if appropriate, any unofficial committee at least one (1) business day prior to the filing of the petition. (c) Once the petition is filed and the Debtor is notified of the scheduling of the hearing on the First Day Motions, the Index should immediately be sent to the United States Trustee, counsel to any party with a security interest in substantially all of the Debtor’s assets, counsel to any other party adversely affected by the relief requested, and the holders of the twenty (20) largest unsecured claims against each Debtor, if not onerous in view of the number of Debtor entities, or if a consolidated list is filed, to the holders of the thirty (30) largest unsecured claims, by hand delivery, facsimile or email, along with a notice of the time and place of the hearing on the First Day Motions, in the manner best designed to give adequate notice under the circumstances. It is understood that email addresses and/or facsimile numbers for some creditors may not be known by the Debtor at that time, and that such parties may not receive actual notice of the hearing. (d) Whenever practicable, a list of email addresses for the Debtor, counsel to the Debtor, counsel to any party with a security interest in substantially all of the 7 Debtor’s assets, counsel to any other party adversely affected by the relief requested, and the holders of the twenty (20) largest unsecured claims against each Debtor, or if a consolidated list is filed, the holders of the thirty (30) largest unsecured claims should be provided to the United States Trustee before the First Day Motions are filed, and in any case, before the final hearing with respect to any matter that is granted on an interim basis pursuant to a First Day Motion. 8. List of Unsecured Creditors Whenever practicable, a separate list of creditors holding the twenty (20) largest unsecured claims against each Debtor should be filed as required by Bankruptcy Rule 1007 before the hearing on the First Day Motions is held. In cases involving multiple Debtors, if it would be impracticable for each Debtor to file a separate list, an explanation should be set forth in the Bankruptcy Rule 1007 affidavit and a consolidated list of the holders of the thirty (30) largest unsecured claims should be filed.2 2 The United States Trustee may require an expanded list of creditors depending on the circumstances of the case. 8
=== Administrative Order No. 559 ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------x In re: Electronic Means for Filing, Signing and Verification of Documents -----------------------------------------------------------x GENERAL ORDER No. 559 Amended March 18, 2016 Electronic Filing Procedures Applicable to All Bankruptcy Cases and Adversary Proceedings WHEREAS, Federal Rule of Civil Procedure (“FRCP”) 83 and Federal Rules of Bankruptcy Procedure (“FRBP”) 5005(a)(2) and 9029 authorize this Court to establish practices and procedures for the filing, signing and verification of documents by electronic means; and WHEREAS, by General Order No. 462, dated August 24, 2001, the Court established such practices and procedures; and WHEREAS, by General Order No. 473, dated December 26, 2002, the Court revised such practices and procedures; and WHEREAS, by General Order No. 559, dated April 23, 2010, the Court further revised such practices and procedures; and WHEREAS, a proposal as to the adoption of Revised Administrative Procedures for Filing, Signing and Verifying Documents by Electronic Means (“Electronic Filing Procedures”) has been reviewed by the Court; and WHEREAS, the Electronic Filing Procedures are consistent with and enhance the responsibility of the Clerk of Court in the control of the Court’s docket under FRBP 5003 and 5005, including safeguarding the integrity of the Court’s docket; and WHEREAS, the Electronic Filing Procedures do not impose fees inconsistent with the present fee structure adopted by the Judicial Conference of the United States pursuant to 28 U.S.C. §§ 1913, 1914, 1926 and 1930; and WHEREAS, the Electronic Filing Procedures allow for the obtaining of a password by attorneys and limited users, which password identifies the party filing electronically; and WHEREAS, the Electronic Filing Procedures provide for the signing of electronically filed documents in a manner consistent with terms set forth in E.D.N.Y. LBR 9011-1(b); and WHEREAS, the Electronic Filing Procedures make adequate provision for the filing, review and retrieval of documents by parties who are not able to access the Electronic Filing System (the “System”) from a remote location; and WHEREAS, the Electronic Filing Procedures do not impair the ability of the Clerk of Court to discharge statistical reporting responsibilities both to the Court and the Administrative Office of the United States Courts; and WHEREAS, the Electronic Filing Procedures are consistent with the notice requirements of FRBP 2002; NOW, THEREFORE, IT IS ORDERED that: The Electronic Filing Procedures, attached as Exhibit 1 to this Order, are approved by the Court. 1. 2. 3. 4. 5. Electronic files, consisting of the images of documents filed in cases or proceedings and documents filed by electronic means, are designated as and shall constitute the official record of the Court together with the other records kept by the Court. No attorney or other person shall knowingly permit or cause to permit the attorney’s password to be utilized by anyone other than an authorized member or employee of the attorney’s law firm. The signing of documents filed electronically shall conform to E.D.N.Y. LBR 9011-1(b). The electronic filing of a document in accordance with the Electronic Filing Procedures together with the transmission of a Notice of Electronic Filing (NEF) from the Court shall constitute entry of that document on the docket kept by the Clerk under FRBP 5003, and shall be deemed accepted for filing by the Clerk’s office. The Office of the Clerk shall enter all applicable orders, decrees, judgments and proceedings of the Court in accordance with the Electronic Filing Procedures, which shall constitute entry of the order, decree, 2 judgment or proceeding on the docket kept by the Clerk under FRBP 5003 and for purposes of FRBP 9021. 6. 7. 8. 9. The request for and receipt of a System password from the Court shall constitute a request for electronic service by the attorney receiving the password pursuant to FRBP 9036, and except as otherwise provided in the Electronic Filing Procedures, a waiver by such attorney of the right to receive notice and service conventionally. The original of this order shall be filed in accordance with the Electronic Filing Procedures. Amendments to this order or the Electronic Filing Procedures may be entered from time to time in keeping with the needs of the Court. This order shall become effective immediately, shall apply to all bankruptcy cases and adversary proceedings pending on or after the effective date, and shall supersede Revised General Order No. 559 dated April 23, 2010. Dated: Brooklyn, New York March 18, 2016 ____s/Carla E. Craig____ Hon. Carla E. Craig, Chief United States Bankruptcy Judge 3 EXHIBIT 1 Amended March 18, 2016 ADMINISTRATIVE PROCEDURES FOR ELECTRONICALLY FILED CASES UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK Exhibit to General Order TABLE OF CONTENTS I. REGISTRATION FOR THE ELECTRONIC FILING SYSTEM ................1 A. Designation of Cases…...................................................................1 B. Passwords.......................................................................................1 C. Registration.....................................................................................1 II. ELECTRONIC FILING AND SERVICE OF DOCUMENTS..................... 2 A. Filing....…....................................................................................... 2 B. Service............................................................................................3 C. Signatures; Affidavits of Service...……………………………………4 D. Privacy Guidelines………………...…………………………………...4 III. DOCUMENTS FILED UNDER SEAL......................................................5 IV. PUBLIC ACCESS TO THE SYSTEM DOCKET.....................................5 A. PACER............................................................................................5 B. Access at the Court.........................................................................5 C. Conventional Copies and Certified Copies…..................................6 D. Access Charges..............................................................................6 REVISED ADMINISTRATIVE PROCEDURES I. REGISTRATION FOR THE ELECTRONIC FILING SYSTEM A. B. C. Designation of Cases. All bankruptcy cases and adversary proceedings shall be assigned to the Electronic Case Filing System (the “System”). Passwords. Each attorney and limited creditor (“Applicants”) shall be entitled to one System password to permit them to participate in the electronic filing of documents in accordance with the System. Application for a password is governed by paragraphs I.C.1 and 2. Registration. 1. To register to use the System, Applicants must submit a password application, using the forms provided on the Court’s website at www.nyeb.uscourts.gov. Please note that there are separate applications for attorneys and limited creditors. 2. 3. 4. Completed applications are to be mailed or delivered to the Office of the Clerk, United States Bankruptcy Court, Eastern District of New York, Alphonse M. D’Amato U.S. Courthouse, 290 Federal Plaza, Central Islip, New York 11722, Attn: Electronic Case Filing System Registration. Upon approval, Applicants will receive an e-mail from the Office of the Clerk containing their assigned System password. System account holders are advised to change their Court assigned password periodically by using the ECF Password Reset Program available on the Court’s website at https://ecf.nyeb.uscourts.gov/cgi-bin/lostPassword.pl. In the event a System account holder believes that the security of an existing password has been compromised and a threat to the System exists, they shall give immediate telephonic notice to the Clerk of Court, Chief Deputy Clerk, Systems Manager or Assistant Systems Manager, confirmed by facsimile, to prevent access to the System through use of that password. Contact information for these individuals is available on the Court’s website at www.nyeb.uscourts.gov. II. ELECTRONIC FILING AND SERVICE OF DOCUMENTS A. Filing. 1. 2. 3. 4. 5. 6. All motions, pleadings, memoranda of law, or other documents required to be filed with the Court in connection with a case, with certain exceptions specified in paragraph III, below, shall be electronically filed on the System. For information regarding the filing of hard copies with chambers, please refer to the Judges’ Procedures set forth on the Court’s website. The date and time of the electronic filing shall be the official date and time of filing of the document. Attorneys and Limited Creditors may file claims electronically on paper or PDF on diskette, CD, DVD or USB Flash Drive. Creditors may also file claims without the requirement of a logon and password by using the Electronic Proof of Claim (ePOC) module located on the Court’s website. Attorneys who do not file electronically will be required to submit all filings to the Court in PDF on diskette, CD, DVD or USB Flash Drive in accordance with the Court’s Administrative Order No. 476 dated June 4, 2003. All documents that form part of a motion or pleading, and which are being filed at the same time and by the same party, may be electronically filed together under one document number, i.e., the motion and a supporting affidavit or application, with the exception of a memorandum of law. A memorandum of law must be filed separately and specified as related to the motion or pleading. Persons filing documents that reference exhibits, which are not in electronic form shall scan and electronically file excerpts of the exhibits that are directly germane to the matter under consideration by the Court. Such filings must be clearly and prominently identified as excerpts, must not exceed twenty (20) pages, and state that the entire document is in the possession of the filing party and is available upon request. The entire exhibit must be made available forthwith to counsel and the Court on request, and must be available in the courtroom at any hearing pertaining to the matter. Persons filing excerpts of exhibits pursuant to these Procedures do so without prejudice to their right to file additional 2 excerpts or the entire exhibit with the Court consistent with the Court’s Local Bankruptcy Rules and the Judges’ Procedures. See, E.D.N.Y. LBR 5005-1(b) (iv). 7. 8. Title of Docket Entries. The person electronically filing a document is responsible for designating a title for the document using one of the main categories provided in the System, i.e., motion, application, etc. Payment of Filing Fees. As part of the registration process, the attorneys affirm that they have a valid credit card or ACH debit card. All fee-related Internet filings will be paid through the Court’s Internet credit card processing system known as Pay.gov, or by ACH debit card. These fees must be paid by midnight of the day of filing. Any failure to pay the fees due may result in revocation or suspension of the attorney’s password. B. Service. 1. 2. General Rule. Except as otherwise provided in paragraph 2, below, all documents required to be served shall be served in paper (i.e., “hard copy”) form in the manner mandated by the applicable law and rules. Consent to Electronic Service. Whenever service is required to be made on a person who has requested, or is deemed to have requested, electronic notice in accordance with FRBP 9036 or paragraph 6 of the Court’s Revised General Order on Electronic Filing Procedures, service may be made by serving the “Notice of Electronic Filing” generated by the System by hand, facsimile or email in the first instance, or by overnight mail if service by hand, facsimile or e-mail is impracticable. 3. Notwithstanding the foregoing, hard copies of documents or notices shall be served in the following circumstances: (a) (b) A summons and complaint under FRBP 7004; a subpoena under FRBP 9016; and, a motion initiating a contested matter under FRBP 9014. Service shall be made upon an agency of the United States, including the United States Attorney, or chambers, in accordance with the FRBP, E.D.N.Y. Local Bankruptcy Rules, an order of the Court, or the Judges’ Procedures. 3 (c) (d) Notice served pursuant to FRBP 2002(a) (1). Upon the commencement of a case, service by counsel for the debtor, or by the debtor pro se, of the petition, schedules and statement of affairs on all applicable governmental agencies and the trustee assigned to the case, where applicable. 4. 5. Orders. Attorney guidelines for submitting orders to the Court are posted on the Court’s website. Notice of Electronic Filing Procedure, Adversary Proceedings. Upon issuance by the Office of the Clerk of the Summons and Notice of Pretrial Conference, where applicable, the attorney for the plaintiff or the pro se party shall serve same along with a Notice of Electronic Filing upon all parties to the proceeding. C. Signatures; Affidavits of Service. 1. 2. Every petition, pleading, motion and other paper served or filed in accordance with these Procedures shall contain signatures that conform to E.D.N.Y. LBR 9011-1(b). Petitions, lists, schedules, statements, amendments, pleadings, affidavits, stipulations and other documents which must contain original signatures, documents requiring verification under FRBP 1008, and unsworn declarations under 28 U.S.C.§ 1746, shall be filed electronically and bear “electronic signatures” that conform to E.D.N.Y. LBR 9011-1(b). The hard copy of the originally executed document, and/or original exhibits, shall be maintained by the filer for two years after the entry of a final order terminating the case or proceeding to which the document relates. On request of the Court, the filer must provide original documents for review. 3. Every order and judgment signed by the judge shall be filed electronically by the Clerk’s Office at the direction of the Court and bear an “electronic signature. D. Privacy Guidelines. Anyone filing documents with the Court shall comply with all guidelines pertaining to the privacy of individuals, including the provisions of Federal Rule of Bankruptcy Procedure 9037 and any guidelines implementing the E-Government Act of 2002. Among the privacy guidelines is the mandate to redact the first five digits of 4 individuals’ Social Security Numbers in any document intended for filing with the Court. III. DOCUMENTS FILED UNDER SEAL Documents filed under seal shall conform to E.D.N.Y. LBR 9018-1. IV. PUBLIC ACCESS TO THE SYSTEM DOCKET A. B. C. D. PACER: Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case information via the Internet. All registered users will be charged a user fee. To register for the PACER System, or for more information, please visit the PACER Service Center at www.pacer.gov. Access at the Court. Documents filed on the System and case dockets are available for viewing in the Office of the Clerk, United States Bankruptcy Court, Eastern District of New York, Alphonse M. D’Amato U.S. Courthouse, 290 Federal Plaza, Central Islip, New York, 11722 or the Conrad B. Duberstein United States Bankruptcy Courthouse, 271-C Cadman Plaza East, Brooklyn, New York 11201-1800 during regular business hours. No password is required to access documents at either of the Court’s locations. Conventional Copies and Certified Copies. Conventional copies and certified copies of electronically filed documents may be purchased at the Office of the Clerk, at Brooklyn or Long Island at the addresses noted above during regular business hours. Fees for copying and certification shall be in accordance with 28 U.S.C. § 1930. Access Charges. At such time as the Court implements charges required by the Judicial Conference of the United States, as set out in 28 U.S.C. § 1930, for the usage of electronic access to the Court’s records, users of the System will be charged in accordance with the fees and procedures established by the Administrative Office of the United States Courts. 5
=== General Order No. 533 ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------x In re: Adoption of Form for Motions for Relief from Stay to Foreclose a Mortgage on Real Property or a Security Interest in a Cooperative Apartment ------------------------------------------------------------x GENERAL ORDER BY resolution of the Board of Judges of the Bankruptcy Court for the Eastern District of New York, it is hereby ORDERED, that all motions filed on or after September 1, 2008, in the United States Bankruptcy Court for the Eastern District of New York, in cases filed by individuals, seeking relief from the automatic stay pursuant to 11 U.S.C. § 362 to foreclose a mortgage on real property or a security interest in a cooperative apartment, shall include, as an exhibit to the motion, a completed copy of the annexed Form for Motions for Relief from Stay to Foreclose a Mortgage on Real Property or a Security Interest in a Cooperative Apartment (the "Form"); and it is further ORDERED, that unexcused failure to comply with this order may constitute grounds for adjournment or denial of the motion. Dated: Brooklyn, NY July 18, 2008 /s/Carla E. Craig CARLA E. CRAIG Chief Bankruptcy Judge #533 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------X CASE NO.___ - _________ (____) CHAPTER___ -----------------------------------------------------------X RELIEF FROM STAY – REAL ESTATE AND COOPERATIVE APARTMENTS BACKGROUND INFORMATION 1. ADDRESS OF REAL PROPERTY OR COOPERATIVE APARTMENT:____________________________ ______________________________________________________________________________ ______________________________________________________________________________ 2. LENDER NAME:_______________________________________________________________ ______________________________________________________________________________ 3. MORTGAGE DATE:_____________________________________________________________ 4. POST-PETITION PAYMENT ADDRESS:_______________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ DEBT AND VALUE REPRESENTATIONS 5. TOTAL PRE-PETITION AND POST-PETITION INDEBTEDNESS OF DEBTOR(S) TO MOVANT AS OF THE MOTION FILING DATE: $____________________ (THIS MAY NOT BE RELIED UPON AS A “PAYOFF” QUOTATION.) 6. MOVANT’S ESTIMATED MARKET VALUE OF THE REAL PROPERTY OR COOPERATIVE APARTMENT AS OF THE MOTION FILING DATE: $____________________ 7. SOURCE OF ESTIMATED MARKET VALUE:____________________________________________ STATUS OF THE DEBT AS OF THE PETITION DATE 8. DEBTOR(S)’S INDEBTEDNESS TO MOVANT AS OF THE PETITION DATE: A. TOTAL: B. PRINCIPAL: C. INTEREST: $_______________ $_______________ $_______________ D. ESCROW (TAXES AND INSURANCE): $_______________ E. FORCED PLACED INSURANCE EXPENDED BY MOVANT: $_______________ F. PRE-PETITION ATTORNEYS’ FEES CHARGED TO DEBTOR(S): $_______________ G. PRE-PETITION LATE FEES CHARGED TO DEBTOR(S): $_______________ 9. CONTRACT INTEREST RATE: _______________________ (IF THE INTEREST RATE HAS CHANGED, LIST THE RATE(S) AND DATE(S) THAT EACH RATE WAS IN EFFECT ON A SEPARATE SHEET AND ATTACH THE SHEET AS AN EXHIBIT TO THIS FORM. STATE THE EXHIBIT NUMBER HERE: ___.) 10. OTHER PRE-PETITION FEES, CHARGES OR AMOUNTS CHARGED TO DEBTOR(S)’S ACCOUNT AND NOT LISTED ABOVE:______________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ (IF ADDITIONAL SPACE IS REQUIRED, LIST THE AMOUNT(S) ON A SEPARATE SHEET AND ATTACH THE SHEET AS AN EXHIBIT TO THIS FORM. STATE THE EXHIBIT NUMBER HERE: ____.) AMOUNT OF POST-PETITION DEFAULT AS OF THE MOTION FILING DATE 11. DATE OF RECEIPT OF LAST PAYMENT:_____________________________________________ 12. NUMBER OF PAYMENTS DUE FROM PETITION DATE TO MOTION FILING DATE:______ PAYMENTS. 13. POST-PETITION PAYMENTS IN DEFAULT: PAYMENT DUE DATE AMOUNT DUE AMOUNT RECEIVED AMOUNT APPLIED TO PRINCIPAL AMOUNT APPLIED TO INTEREST AMOUNT APPLIED TO ESCROW LATE FEE CHARGED TOTAL: $ $ $ $ $ $ 14. OTHER POST-PETITION FEES CHARGED TO DEBTOR(S): A. TOTAL: $_______________ B. ATTORNEYS’ FEES IN CONNECTION WITH THIS MOTION: $_______________ C. FILING FEE IN CONNECTION WITH THIS MOTION: $_______________ D. OTHER POST-PETITION ATTORNEYS’ FEES: $_______________ E. POST-PETITION INSPECTION FEES: $_______________ F. POST-PETITION APPRAISAL/BROKER’S PRICE OPINION FEES: $_______________ G. FORCED PLACED INSURANCE EXPENDED BY MOVANT: $_______________ 15. AMOUNT HELD IN SUSPENSE BY MOVANT: $_______________ 16. OTHER POST-PETITION FEES, CHARGES OR AMOUNTS CHARGED TO DEBTOR(S)’S ACCOUNT AND NOT LISTED ABOVE:______________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ (IF ADDITIONAL SPACE IS REQUIRED, LIST THE AMOUNT(S) ON A SEPARATE SHEET AND ATTACH THE SHEET AS AN EXHIBIT TO THIS FORM. STATE THE EXHIBIT NUMBER HERE: ____.) REQUIRED ATTACHMENTS TO MOTION PLEASE ATTACH THE FOLLOWING DOCUMENTS TO THIS MOTION AND INDICATE THE EXHIBIT NUMBER ASSOCIATED WITH EACH DOCUMENT. (1) (2) (3) COPIES OF DOCUMENTS THAT ESTABLISH MOVANT’S INTEREST IN THE SUBJECT PROPERTY. FOR PURPOSES OF EXAMPLE ONLY, THIS MAY BE A COMPLETE AND LEGIBLE COPY OF THE PROMISSORY NOTE OR OTHER DEBT INSTRUMENT TOGETHER WITH A COMPLETE AND LEGIBLE COPY OF THE MORTGAGE AND ANY ASSIGNMENTS IN THE CHAIN FROM THE ORIGINAL MORTGAGEE TO THE CURRENT MOVING PARTY. (EXHIBIT _____.) COPIES OF DOCUMENTS THAT ESTABLISH MOVANT’S STANDING TO BRING THIS MOTION. (EXHIBIT _____.) COPIES OF DOCUMENTS THAT ESTABLISH THAT MOVANT’S INTEREST IN THE REAL PROPERTY OR COOPERATIVE APARTMENT WAS PERFECTED. FOR THE PURPOSES OF EXAMPLE ONLY, THIS MAY BE A COMPLETE AND LEGIBLE COPY OF THE FINANCING STATEMENT (UCC-1) FILED WITH THE CLERK’S OFFICE OR THE REGISTER OF THE COUNTY IN WHICH THE PROPERTY OR COOPERATIVE APARTMENT IS LOCATED. (EXHIBIT _____.) DECLARATION AS TO BUSINESS RECORDS I,__________________________________, THE _______________________________ OF ___________________________________, THE MOVANT HEREIN, DECLARE PURSUANT TO 28 U.S.C. SECTION 1746 UNDER PENALTY OF PERJURY THAT THE INFORMATION PROVIDED IN THIS FORM AND ANY EXHIBITS ATTACHED HERETO (OTHER THAN THE TRANSACTIONAL DOCUMENTS ATTACHED AS REQUIRED BY PARAGRAPHS 1 ,2, AND 3, ABOVE) IS DERIVED FROM RECORDS THAT WERE MADE AT OR NEAR THE TIME OF THE OCCURRENCE OF THE MATTERS SET FORTH BY, OR FROM INFORMATION TRANSMITTED BY, A PERSON WITH KNOWLEDGE OF THOSE MATTERS; THAT THE RECORDS WERE KEPT IN THE COURSE OF THE REGULARLY CONDUCTED ACTIVITY; AND THAT THE RECORDS WERE MADE IN THE COURSE OF THE REGULARLY CONDUCTED ACTIVITY AS A REGULAR PRACTICE. I FURTHER DECLARE THAT COPIES OF ANY TRANSACTIONAL DOCUMENTS ATTACHED TO THIS FORM AS REQUIRED BY PARAGRAPHS 1, 2, AND 3, ABOVE, ARE TRUE AND CORRECT COPIES OF THE ORIGINAL DOCUMENTS. EXECUTED AT _________________________ ON THIS _____ DAY OF ____________, 20___ ___________________________________ <NAME> <TITLE> <MOVANT> <STREET ADDRESS> <CITY, STATE AND ZIP CODE> DECLARATION I,__________________________________, THE _______________________________ OF ___________________________________, THE MOVANT HEREIN, DECLARE PURSUANT TO 28 U.S.C. SECTION 1746 UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT BASED ON PERSONAL KNOWLEDGE OF THE MOVANT’S BOOKS AND BUSINESS RECORDS. EXECUTED AT _________________________ ON THIS _____ DAY OF ____________, 20___ ___________________________________ <NAME> <TITLE> <MOVANT> <STREET ADDRESS> <CITY, STATE AND ZIP CODE>
=== Administrative Order No. 541 ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------x In re: PROCEDURES FOR PAYMENT AND CURE OF PRE-PETITION JUDGMENT OF POSSESSION INVOLVING RESIDENTIAL PROPERTY -----------------------------------------------------------x Administrative Order No. 541 Amending Administrative Order No. 502 WHEREAS, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, as codified in 11 U.S.C. § 362(b)(22) and 362(l), creates certain rights and obligations with respect to the cure of a monetary default giving rise to a pre-petition judgment for possession regarding residential property in which the debtor resides as a tenant under a lease or rental agreement, it is hereby ORDERED, that a debtor shall be deemed to have complied with 11 U.S.C. § 362(l)(1) by: 1. 2. Making the required certification by completing the four check boxes, including the landlord's name and address, listed in the voluntary petition under the section entitled “Statement by a Debtor who Resides as a Tenant of Residential Property” and Delivering to the Clerk of the Court (“Clerk”), together with the petition (or within one day of the filing, if the petition is filed electronically), a certified or cashier’s check or money order, made payable to the lessor, in the amount of any rent that would become due during the 30-day period after the filing of the petition (“Rent Check”); and it is further ORDERED, that if a debtor complies with the preceding paragraph, the Clerk shall, within two days, send notice of the debtor’s compliance (“Notice of Compliance”) to the lessor which notice shall also request that the lessor inform the Clerk whether it consents or declines to receive the Rent Check. If a lessor consents to receive the Rent Check, the notice will further request that the lessor provide the Clerk with an address to which the Rent Check should be sent; and it is further ORDERED, that if a lessor fails, within 14 days of the date of the Notice of Compliance, to notify the Clerk whether it consents to or declines receipt of the Rent Check the lessor shall be deemed to have consented to receive the Rent Check and the Clerk shall send the Rent Check to the lessor at the address set forth in the debtor’s certification; and it is further ORDERED, that a lessor’s consent to receive the Rent Check shall not preclude the lessor from objecting to a debtor’s certification pursuant to 11 U.S.C. §§ 362(l)(1) and/or (2). Dated: Brooklyn, New York November 25, 2009 /s/Carla E. Craig Carla E. Craig, Chief U.S. Bankruptcy Judge
=== Administrative Order No. 538 ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------x In the matter of: ORDER ESTABLISHING PROCEDURES FOR MONTHLY COMPENSATION AND REIMBURSEMENT OF EXPENSES OF PROFESSIONALS ------------------------------------------------------------------x Administrative Order No. 538 BY the Board of Judges of the Bankruptcy Court for the Eastern District of New York, it is resolved that in order to provide professionals with clear and concise procedures for seeking monthly compensation and reimbursement of expenses in chapter 11 cases (the "Monthly Fee Order"), all Monthly Fee Orders requested in the Bankruptcy Court for the Eastern District of New York shall be requested by motion on notice to the parties described in the Monthly Fee Order, and shall conform substantially to the form of Monthly Fee Order annexed hereto. NOW, THEREFORE, it is ORDERED, that the annexed form of Monthly Fee Order be, and the same is hereby adopted, effective immediately; and it is further ORDERED, that nothing in this General Order shall be interpreted as creating any entitlement to monthly compensation; and it is further ORDERED, that whether or not a motion for a Monthly Fee Order will be granted will be determined on a case-by-case basis by the Judge to whom the case is assigned. Dated: Brooklyn, New York April 10, 2009 /s/Carla E. Craig_________________ CARLA E. CRAIG Chief United States Bankruptcy Judge UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------x In re: ---------------------------------------------------------------x Debtor. Chapter 11 Case No. ORDER PURSUANT TO 11 U.S.C. §§ 105(a) AND 331 ESTABLISHING PROCEDURES FOR MONTHLY COMPENSATION AND REIMBURSEMENT OF EXPENSES OF PROFESSIONALS [NAMES OF DEBTOR], debtor and debtor-in-possession (the “Debtor”), moves, by a motion dated __________ ____, 200_ (the “Motion”), for an order, pursuant to §§ 105(a) and 331 of the United States Bankruptcy Code (the “Code”), establishing procedures for monthly compensation and reimbursement of expenses of professionals retained by order of this Court, and this Court having determined that the relief requested in the Motion is in the best interests of the Debtors, their estates, and creditors; and it appearing that proper and adequate notice has been given by service of the Motion on the Office of the United States Trustee, counsel to each official committee (if no committee is appointed, the 20 largest unsecured creditors), counsel to all post-petition lenders (or counsel to their agent(s , and all parties who filed a notice of appearance; and that no other or further notice is necessary; and upon the record of the hearing herein; and upon the representation of the Debtors that this estate is administratively solvent; and after due deliberation thereon; and good and sufficient cause appearing therefor, it is hereby ORDERED, that except as may otherwise be provided in Court orders authorizing the retention of specific professionals, all professionals in this case may seek monthly compensation in accordance with the following procedure: (a) On or before the twentieth (20th) day of each month following the month for which compensation is sought, each professional seeking compensation under this Order will serve a monthly statement, by hand or overnight delivery on (i) __________________, the officer designated by the Debtors to be responsible for such matters; (ii) counsel to the Debtors; (iii) counsel to all official committees; (iv) counsel for the Office of the United States Trustee, 271 Cadman Plaza East, Suite 4529, Brooklyn, New York 11201 (Attn: __________________, Esq.); (vi) counsel to all postpetition lenders or their agent(s); and (v) __________________ (anyone else the Court may designate); (b) The monthly statement need not be filed with the Court and a courtesy copy need not be delivered to the presiding judge’s chambers, because this Order is not intended to alter the fee 1 application requirements outlined in §§ 330 and 331 of the Code and because professionals are still required to serve and file interim and final applications for approval of fees and expenses in accordance with the relevant provisions of the Code, the Federal Rules of Bankruptcy Procedure and the Local Rules for the United States Bankruptcy Court, Eastern District of New York; (c) Each monthly fee statement must contain a list of the individuals and their respective titles (e.g. attorney, accountant, or paralegal) who provided services during the statement period, their respective billing rates, the aggregate hours spent by each individual, a reasonably detailed breakdown of the disbursements incurred (no professional should seek reimbursement of an expense which would otherwise not be allowed pursuant to the United for States Trustee Guidelines Compensation and Reimbursement of Expenses Filed under 11 U.S.C. § 330 issued May 17, 1996 as amended from time to time), and contemporaneously maintained time entries for each individual in increments of tenths (1/10) of an hour; for Reviewing Applications (d) Each person receiving a statement will have at least fifteen (15) days after its receipt to review it and, in the event that he or she has an objection to the compensation or reimbursement sought in a particular statement, he or she shall, by no later than the thirty- fifth (35th) day following the month for which compensation is sought, serve upon the professional whose statement is objected to, and the other persons designated to receive statements in paragraph (a), a written “Notice Of Objection To Fee Statement,” setting forth the nature of the objection and the amount of fees or expenses at issue; (e) At the expiration of the thirty-five (35) day period, the Debtors shall promptly pay eighty percent (80%) of the fees and one hundred percent (100%) of the expenses identified in each monthly statement to which no objection has been served in accordance with paragraph (d); (f) If the Debtors receive an objection to a particular fee statement, they shall withhold payment of that portion of the fee statement to which the objection is directed and promptly pay the remainder of the fees and disbursements in the percentages set forth in paragraph (e); (g) If the parties to an objection are able to resolve their dispute following the service of a Notice Of Objection To Fee Statement and if the party whose statement was objected to serves on all of 2 the parties listed in paragraph (a) a statement indicating that the objection is withdrawn and describing in detail the terms of the resolution, then the debtor shall promptly pay, in accordance with paragraph (e), that portion of the fee statement which is no longer subject to an objection; (h) All objections that are not resolved by the parties, shall be preserved and presented to the Court at the next interim or final fee application hearing to be heard by the Court. See paragraph (j), below; (i) The service of an objection in accordance with paragraph (d) shall not prejudice the objecting party’s right to object to any fee application made to the Court in accordance with the Code on any ground, whether raised in the objection or not. Furthermore, the decision by any party not to object to a fee statement shall not be a waiver of any kind or prejudice that party’s right to object to any fee application subsequently made to the Court in accordance with the Code; (j) Approximately every 120 days, but no less frequently than every 150 days, each of the professionals shall serve and file with the Court an application for interim or final Court approval and allowance, pursuant to sections 330 and 331 of the Bankruptcy Code the compensation and reimbursement of expenses previously paid; the case may be), of (as (k) Any professional who fails to file an application seeking approval of compensation and expenses previously paid under this Order within the time frame set forth in subparagraph (j) above shall (1) be ineligible to receive further monthly payments of fees or expenses as provided herein until further order of the Court and (2) may be required to disgorge any fees paid since the last fee application (or, if no fee application has been filed by such professional, since retention); (l) The pendency of an objection or the entry of a Court order that payment of compensation or reimbursement of expenses was improper as to a particular statement shall not disqualify a professional from the future payment of compensation or reimbursement of expenses as set forth above, unless otherwise ordered by the Court; (m) Neither the payment of, nor the failure to pay, in whole or in part, monthly compensation and reimbursement as provided herein shall have any effect on this Court’s interim or final 3 allowance of compensation and reimbursement of expenses of any professionals; (n) Counsel for each official committee may, in accordance with the foregoing procedure for monthly compensation and reimbursement of professionals, collect and submit statements of expenses, with supporting vouchers, from members of the committee he or she represents; and it is further ORDERED, that each professional may seek, in its first request for compensation and reimbursement of expenses pursuant to this Order, compensation for work performed and reimbursement for expenses incurred during the period beginning on the date of the professional’s retention and ending on __________ ____, 200_; and it is further ORDERED, that the amount of fees and disbursements sought be set out in U.S. dollars; [if the fees and disbursements are to be paid in foreign currency, the amount shall be set out in U.S. dollars and the conversion amount in the foreign currency, calculated at the time of the submission of the application;] and it is further ORDERED, that the Debtors shall include all payments to professionals on their monthly operating reports, detailed so as to state the amount paid to each of the professionals; and it is further ORDERED, that any party in interest may file a motion seeking modification or suspension of monthly payments to professionals pursuant to this order on any applicable grounds, including that the Debtors have not timely filed monthly operating reports, or remained current with their administrative expenses and 28 U.S.C. § 1930 fees, and in such event no further payments shall be made pursuant to this order until such motion is resolved; and it is further ORDERED, that monthly payments to professionals pursuant to this Order may be suspended by the Court sua sponte; and it is further ORDERED, that all time periods set forth in this Order shall be calculated in accordance with Federal Rule of Bankruptcy Procedure 9006(a); and it is further ORDERED, that the Debtors shall serve a copy of this Order on all entities specified in paragraph (a) hereof. Dated: Brooklyn, New York __________ ___, 200_ ____________________________________ UNITED STATES BANKRUPTCY JUDGE 4
=== Administrative Order No. 558 ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------x In re: Adoption of Guidelines for Financing Motions Administrative Order No. 558 ------------------------------------------------------------x UPON the resolution of the Board of Judges for the United States Bankruptcy Court for the Eastern District of New York, it is hereby ORDERED, that the annexed Guidelines for Financing Motions are adopted. Dated: Brooklyn, NY April 15, 2010 /s/Carla E. Craig__________________ CARLA E. CRAIG Chief United States Bankruptcy Judge GUIDELINES FOR FINANCING MOTIONS The United States Bankruptcy Court for the Eastern District of New York (the "Court") has adopted the following guidelines (the “Financing Guidelines”) for use in chapter 11 cases where a Debtor1 seeks authority to use cash collateral pursuant to section 363(c) of 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”) or to obtain credit pursuant to section 364 of the Bankruptcy Code (a “Financing Motion”). The Financing Guidelines are designed to: (a) provide a framework for Debtors to clearly and uniformly describe proposed postpetition financing transactions to allow the Court and parties to understand such transactions and (b) identify certain provisions that should be specifically identified and explained whenever included in Financing Motions or the relevant financing agreements. The Financing Guidelines do not: (a) address the circumstances under which a financing motion will be approved, (b) address other substantive legal issues or (c) constitute rules of the Court. The Financing Guidelines supplement, but do not replace, sections 363 and 364 of the Bankruptcy Code and Rules 4001(b), (c) and (d) of the Federal Rules of Bankruptcy Procedure. 1. Contents of Financing Motion The following provisions, to the extent applicable, are in addition to the material provisions set forth in Bankruptcy Rules 4001(b)(1)(B), (c)(1)(B) and (d)(1)(B). The requirements of Bankruptcy Rules 4001(b)(1)(B), (c)(1)(B) and (d)(1)(B) may be fulfilled through citation reference to the provisions of a filed copy of the relevant agreement: (a) the amount of cash collateral the party seeks permission to use or the amount of credit the party seeks to obtain, including any committed amount or borrowing base formula and the estimated availability under the formula; (b) (c) material conditions to closing and borrowing, including budget provisions; pricing and economic terms and the treatment of costs and expenses of the lender(s), any agent for the lender(s) and their respective professionals; (d) any effect on existing liens of the granting of collateral or adequate protection provided to the lender(s) and any priority or superpriority provisions; (e) (f) any carve-outs from liens or superpriorities; any provision that elevates prepetition debt to administrative expense status or that secures prepetition debt with liens on postpetition assets; (g) any provision that applies the proceeds of postpetition financing to pay, in whole or in part, prepetition debt or which otherwise has the effect of converting prepetition debt to postpetition debt (“rollup”); 1 The term “Debtor” includes “debtor in possession” and “trustee,” as appropriate under the particular circumstances. (h) any limitation on the lender’s obligation to fund certain activities of the Debtor or committee appointed under sections 1102 or 1114 of the Bankruptcy Code; (i) any terms that provide that the use of cash collateral or the availability of credit will cease on (i) the filing of a challenge to the lender’s prepetition lien or the lender’s prepetition claim based on the lender’s prepetition conduct; (ii) entry of an order granting relief from the automatic stay; (iii) the grant of a change of venue with respect to the case or any adversary proceeding; (iv) management changes or the departure, from the Debtor, of any identified employees; (v) the expiration of a specified time for filing a plan; or (vi) the making of a Financing Motion by a party in interest seeking any relief (as distinct from an order granting such relief); (j) any change-of-control provisions; (k) any provision establishing a deadline for, or otherwise expressly requiring, the sale of property of the estate; (l) any prepayment penalty or other provision affecting the Debtor’s right or ability to repay the financing in full during the course of the chapter 11 case; (m) in jointly administered cases, terms that govern the joint liability of the Debtors, including any provisions that would govern the nature and/or priority, if any, of any interdebtor claims that would result if a Debtor were to repay debt incurred by or for the benefit of another Debtor; (n) any provision for the funding of non-debtor affiliates with the cash collateral or proceeds of the loan, as applicable, and the approximate amount of such funding; and (o) any termination or default provisions, cross-default provisions or provisions providing for events of default or having the effect of termination or default on the automatic stay or the lender’s ability to enforce remedies. (p) any provision which purports to preclude the Court from entering an order authorizing financing which primes liens held by the lender, or any provision which purports to preclude the Court from confirming a plan of reorganization which impairs the lender without the lender's consent. 2. Disclosure of Efforts to Obtain Financing and Good Faith A Financing Motion seeking authority to obtain credit should describe the efforts of the Debtor to obtain financing, the basis on which the Debtor determined that the proposed financing is on the best terms available and material facts bearing on the issue of whether the extension of credit is being extended in good faith. 2 3. Notice After Event of Default If a proposed order contains a provision that modifies or terminates the automatic stay or permits the lender to enforce remedies against the collateral upon the occurrence of a default, the proposed order should require at least seven days’ notice to the Debtor, the United States Trustee and the committee appointed under section 1102 of the Bankruptcy Code (or the 20 largest unsecured creditors of the Debtor as listed on the Debtor’s schedules if no committee is appointed under section 1102 of the Bankruptcy Code), before the modification or termination of the automatic stay or the enforcement of the lender’s remedies. If less notice is provided, the Financing Motion should explain why. If a proposed order contains a provision terminating the use of cash collateral, the proposed order should require at least three days’ notice before the use of cash collateral ceases (provided that the use of cash collateral conforms to any budget in effect). If less notice is provided, the Financing Motion should explain why. 4. Carve-Outs Any provision in a Financing Motion or proposed order relating to a carve-out from liens or superpriority claims should disclose when the carve-out takes effect, whether it remains unaltered after payment of interim fees made before an event of default, and any effect of the carve-out on any borrowing base or borrowing availability under the postpetition loan. If a provision relating to a carve-out provides disparate treatment for the professionals retained by a committee appointed under sections 1102 or 1114 of the Bankruptcy Code, when compared with the treatment for professionals retained by the Debtor, or if the carve-out does not include reasonable expenses of committee members (excluding fees and expenses of professionals employed by such members individually) and/or reasonable post-conversion commissions, fees and expenses of a chapter 7 trustee, or fees payable to the Bankruptcy Court and the United States Trustee (together with any accrued interest) are not provided for in a separate carve-out, there should be disclosure thereof under subdivision (a) of these Financing Guidelines and the Financing Motion should contain an explanation of the reasons therefor. Reasonable allocations in a carve-out provision may be proposed for, inter alia, (i) expenses of professionals retained by committees appointed in the case, (ii) expenses of professionals retained by the Debtor, (iii) fees payable to the Bankruptcy Court and to the United States Trustee, (iv) reasonable expenses of committee members and (v) reasonable post-conversion commissions, fees and expenses of a chapter 7 trustee. Investigation Periods Relating to Waivers and Concessions as to 5. Prepetition Debt If a Financing Motion seeks entry of an order in which the Debtor has stipulated, acknowledged or otherwise admitted the validity, enforceability, priority, or amount of a claim that arose before the commencement of the case, or of any lien securing the claim, either the proposed order should include a provision to permit the investigation and proceedings relating to such 3 determination by parties other than the Debtor as follows, or the Financing Motion should explain why the proposed order does not contain such a provision: (a) the committee of unsecured creditors appointed under section 1102 of the Bankruptcy Code shall have at least 60 days (or a longer period as the Court orders for cause shown before the expiration of such period) from the date of the selection of its counsel for the committee to investigate the facts and file a complaint or a motion seeking authority to commence litigation as a representative of the estate; (b) if no such committee has been appointed, any party in interest (other than the Debtor) shall have at least 75 days (or a longer period as the Court orders for cause shown before the expiration of such period) from the entry of the final financing order to investigate the facts and file a complaint or a motion seeking authority to commence litigation as a representative of the estate; or (c) upon conversion of a chapter 11 case to chapter 7, to the extent that any period to investigate the facts and file a complaint or a motion seeking authority to commence litigation as a representative of the estate has not expired, such period shall automatically be extended for 75 days from the date a chapter 7 trustee is appointed. 6. Content of Interim Orders A single motion may be filed seeking entry of an interim order and a final order, which orders would be normally entered at the conclusion of the preliminary hearing and the final hearing, respectively, as those terms are used in Bankruptcy Rules 4001(b)(2) and (c)(2). In addition, where circumstances warrant, the Debtor may seek emergency relief for financing limited to the amount necessary to avoid immediate and irreparable harm to the estate pending the preliminary hearing. A Financing Motion that seeks entry of an emergency or interim order before a final hearing under Bankruptcy Rule 4001(b)(2) or (c)(2) should describe the amount and purpose of funds sought to be used or borrowed on an emergency or interim basis and should set forth facts to support a finding that immediate or irreparable harm will be caused to the estate if immediate relief is not granted before the final hearing. An interim order will not ordinarily bind the Court with respect to the provisions of the final order provided that (i) the lender will be afforded all the benefits and protections of the interim order, including a lender’s protections under sections 364(e) and 363(m) of the Bankruptcy Code with respect to funds advanced during the interim period and (ii) the interim order will not bind the lender to advance funds pursuant to a final order that contains provisions contrary to or inconsistent with the interim order. 7. Adequacy of Budget If the Debtor will be subject to a budget under a proposed cash collateral or financing order, the Financing Motion should include a statement by the Debtor stating whether there is reason to 4 believe that the budget will be adequate (inclusive of professional fees and disbursements), considering all available assets, to pay all administrative expenses due or accruing during the period covered by the financing or the budget. 8. Notice Notice of a preliminary or final hearing should be given to the United States Trustee, the debtor's twenty largest unsecured creditors or the creditors' committee if one has been appointed, the persons required by Bankruptcy Rules 4001(b)(3) and 4001(c)(3), as the case may be, the, and any other persons whose property or collateral would be directly affected by the outcome of a Financing Motion or any provision of a proposed order. Emergency and interim relief may be sought after the best notice available under the circumstances; however, emergency and interim relief will ordinarily not be considered unless the United States Trustee and the Court have had a reasonable opportunity to review the motion, the financing agreement, and the proposed interim order, and the Court normally will not approve provisions that directly affect the interests of parties without notice to them, which may be given by overnight package express, facsimile or electronic mail. The hearing on a final order for the use of cash collateral under section 363(c) of the Bankruptcy Code or for authority to obtain credit under section 364 of the Bankruptcy Code will ordinarily not commence until there has been a reasonable opportunity for the formation of a creditors’ committee under section 1102 of the Bankruptcy Code and for the creditors’ committee to obtain counsel. 9. Early Notice to the Office of the United States Trustee Prospective Debtors may provide substantially complete drafts of the Financing Motion, interim order and related financing documents to the Office of the United States Trustee in advance of a filing, on a confidential basis. Debtors are encouraged to provide drafts of financing requests, including proposed orders, to the Office of the United States Trustee as early as possible in advance of filing to provide that office with the opportunity to comment. 10. Presence at Hearing Unless the court directs otherwise, (a) counsel for each proposed lender, or for an agent representing such lender, should be present at all preliminary and final hearings on the authority to obtain credit from such lender, and counsel for each entity, or for an agent of such entity, with an interest in cash collateral to be used with the entity’s consent should be present at all preliminary and final hearings on the authority to use such cash collateral; and (b) a business representative of the Debtor, the proposed lender or an agent representing such lender, and any party objecting to the Financing Motion for authority to 5 obtain credit, each with appropriate authority, should be present at, or available by telephone for, all preliminary and final hearings. 11. Contents of Proposed Order (a) Findings of Fact (i) A proposed order approving the use of cash collateral under section 363(c) of the Bankruptcy Code, or granting authority to obtain credit under section 364 of the Bankruptcy Code, should limit the recitation of findings to facts essential to entry of the order. Non-essential facts regarding prepetition dealings and agreements may be included in an order approving the use of cash collateral or granting authority to obtain credit under a heading with a title such as “Stipulations Between the Debtor and the Lender” or “Background.” (ii) A proposed emergency or interim order should include a finding that immediate and irreparable loss or damage will be caused to the estate if immediate financing is not obtained and should state with respect to notice only that the hearing was held pursuant to Bankruptcy Rule 4001(b)(2) or (c)(2), the parties to which notice was given, the manner of notice and that the notice was the best available under the circumstances. (iii) A proposed final order may include factual findings as to notice and the adequacy thereof. (iv) To the extent that a proposed order refers to a specific section of a prepetition or postpetition loan agreement or other document, the proposed order should also include a summary of the material provisions of that section. (b) Optional Provisions A proposed order may include any appropriate material provisions of the financing agreement. (c) Cross-Collateralization and Rollups A proposed order approving cross-collateralization or a rollup should ordinarily include language that reserves the right of the Court, after notice and hearing, to unwind or partially unwind the postpetition protection provided to the prepetition lender or the paydown of the prepetition debt, whichever is applicable, in the event that there is a successful challenge to the validity, enforceability, extent, perfection or priority of the prepetition lender’s claims or liens, or a determination that the prepetition debt was undersecured as of the petition date, and the cross-collateralization or rollup improperly advantaged the lender. 6 (d) Waivers, Consents or Amendments with Respect to the Loan Agreement A proposed order may permit the parties to enter into agreements providing waivers or consents to amendments of the loan agreement without the need for further court approval or notice, provided that (i) the agreement as so modified does not shorten the maturity, alter the claim priority or collateralization or increase the commitments, the rate of interest or the fees payable by the estate and (ii) notice of all amendments (other than those that are ministerial or technical and do not adversely affect the estate) is provided in advance to counsel for any committee appointed under section 1102 of the Bankruptcy Code and the United States Trustee. (e) Conclusions of Law A proposed interim order may provide that the Debtor is authorized to enter into the loan or other agreement, but it should not state that the Court has examined and approved the loan or other agreement. (f) Order to Control A proposed order should state that to the extent that a loan or other agreement differs from the order, the order shall control. (g) Statutory Provisions Affected A proposed order should specify those provisions of the Bankruptcy Code, Bankruptcy Rules and/or Local Rules relied upon as authority for granting relief. (h) Conclusions of Law Regarding Notice A proposed final order may contain conclusions of law with respect to the adequacy of notice under section 364 of the Bankruptcy Code and Bankruptcy Rule 4001. 7
=== Administrative Order No. 557 ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------x In re: Adoption of Sale Guidelines Administrative Order No. 557 ------------------------------------------------------------x UPON the resolution of the Board of Judges for the United States Bankruptcy Court for the Eastern District of New York, it is hereby ORDERED, that the annexed Sale Guidelines are adopted. Dated: Brooklyn, NY March 29, 2010 /s/Carla E. Craig_________________ CARLA E. CRAIG Chief United States Bankruptcy Judge SALE GUIDELINES The United States Bankruptcy Court for the Eastern District of New York (the “Court”) has adopted the following guidelines (the “Sale Guidelines”) for the conduct of asset sales under section 363(b) of 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”). The Sale Guidelines are designed to: (a) help practitioners identify issues that typically are of concern to parties and the Court, so that, among other things, determinations can be made, if necessary, on an expedited basis, (b) highlight certain Extraordinary Provisions, defined below, which ordinarily will not be approved without good cause shown and (c) set forth best practices with respect to notice. The Sale Guidelines do not: (a) address the circumstances under which an asset sale is appropriate (b) address other substantive legal issues or (c) constitute rules of the Court. The Sale Guidelines supplement but do not replace, sections 363(b) and 365 of the Bankruptcy Code, Rules 2002 and 6004 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and Rules 6004-1 and 6005-1 of the Local Bankruptcy Rules for the Eastern District of New York (the “Local Rules”). 1. Motions (a) Motion Content – When an auction is contemplated in cases filed under chapter 11 and where appropriate under other chapters, the Debtor1 should ordinarily file a single motion seeking the entry of two orders to be considered at two separate hearings. The first order (the “Sale Procedures Order”) will approve procedures for the sale process, including any protections for an initial, or stalking horse bidder (“stalking horse”), and the second order (the “Sale Order”) will approve the sale to the successful bidder at the auction. If no auction is contemplated or the Debtor has not actively solicited or will not actively solicit higher and better offers, the motion seeking approval of the sale should explain why the Debtor proposes to structure the sale in such manner. (i) The proposed purchase agreement, or a form of proposed agreement acceptable to the Debtor if the Debtor has not yet entered into an agreement with a proposed buyer, should be attached to the motion. (ii) The motion also should include a copy of the proposed order(s), particularly if the order(s) include any Extraordinary Provisions, defined below. (iii) The motion must comply in form with the Local Rules. (iv) If a hearing is required under section 363(b) of the Bankruptcy Code in connection with the sale of personally identifiable information subject to a privacy policy of the Debtor, the motion should request appointment of a 1 The term “Debtor” includes “debtor in possession” and “trustee,” as appropriate under the particular circumstances. 2 consumer privacy ombudsman under section 332 of the Bankruptcy Code if the proposed sale does not fall under section 363(b)(1)(A) of the Bankruptcy Code. (b) Bidding Procedures – Generally, a Sale Procedures Order should include a motion for proposed bidding procedures which are in the Debtor’s reasonable business judgment, likely to maximize the sale price. Such procedures must not chill the receipt of higher and better offers and must be consistent with the Debtor’s fiduciary duties. It is recommended that such procedures include the following:2 (i) Qualification of Bidders – An entity that is seeking to become a qualified bidder will deliver financial information by a stated deadline to the Debtor and other key parties (ordinarily excluding other bidders)3 reasonably demonstrating such bidder’s ability to consummate a sale on the terms proposed. Such financial information, which may be provided confidentially, if appropriate, may include current audited or verified financial statements of, or verified financial commitments obtained by, the potential bidder (or, if the potential bidder is an entity formed for the purpose of acquiring the property to be sold, the party that will bear liability for a breach). To be qualified, a prospective bidder also may be required by a stated deadline to make a non-binding expression of interest and execute a reasonable form of non-disclosure agreement before being provided due diligence access to non-public information. (ii) Qualification of Bids Prior to Auction (1) The bidding procedures should state the criteria for a qualifying bid and any deadlines for (i) submitting such a bid and (ii) notification whether the bid constitutes a qualifying bid. (2) The bidding procedures may require each qualified bid to be marked against the form of a stalking horse agreement or a form of proposed agreement, showing amendments and other modifications (including price and other terms) proposed by the qualified bidder. The bidding procedures may limit bidding to the terms of a stalking horse agreement or proposed form of agreement; provided, however, that, bidding on less than all of the assets proposed to be acquired by a stalking 2 When multiple asset sales over time are expected, the Debtor may consider seeking Court approval of global bidding procedures to avoid the need to obtain Court approval of procedures for each such sale. Similarly, the Debtor may consider seeking Court approval of global notice and other appropriate procedures to facilitate sales of assets of limited value or de minimis sales that do not warrant an auction or a separate motion for each sale. What constitutes a de minimis sale will depend on the facts of each case. 3 It is expected that the Debtor will also share its evaluation of bids with key parties-in-interest, such as representatives of official committees, and that it will in its reasonable judgment identify the winning bidder only after consultation with such parties. 3 horse normally should be permitted, unless such bidding is inconsistent with the purpose of the sale. (3) A qualified bid should clearly identify all conditions to the qualified bidder’s obligation to consummate the purchase. (4) A qualified bid should include a good faith deposit, which will be non-refundable if the bidder is selected as the successful bidder and fails to consummate the purchase (other than as a result of a breach by the seller) and refundable if it is not selected as the successful bidder (other than as a result of its own breach). The amount of, and rules governing, the good faith deposit will be determined on a case-by-case basis, but generally each qualified bidder, including any stalking horse should be required to make the same form of deposit. (iii) Backup Buyer – The Sale Procedures Order may provide that the Debtor in the reasonable exercise of its judgment may accept and close on the second highest qualified bid received if the winning bidder fails to close the transaction within a specified period. In such case, the Debtor would retain the second highest bidder’s good faith deposit until such bidder was relieved of its obligation to be a backup buyer. (iv) Stalking Horse Protections/Bidding Increments (1) Break-Up/Topping Fees and Expense Reimbursement – The propriety of any break-up or topping fees and other bidding protections (such as the estate’s proposed payment of out-of-pocket expenses incurred by a bidder in connection with the proposed transaction or the compensation of a bidder for lost opportunity costs) will be determined on a case-by-case basis. Generally such fees should be payable only from the proceeds of a higher or better transaction entered into with a third party within a reasonable time of the closing of the sale. Such provisions must be prominently disclosed and described with particularity in the motion. (2) Bidding Increments – If a proposed sale contemplates the granting of a break-up or topping fee or expense reimbursement, the initial bidding increment must be more than sufficient to pay the maximum amount payable thereunder. Additional bidding increments should be appropriate in light of the value of the asset being sold and should not be so high as to chill further bids. (3) Rebidding – If a break-up or topping fee is requested, the Sale Procedures Order should state whether the stalking horse will be deemed to waive the break-up or topping fee by rebidding. In the absence of a waiver, the Sales Procedure Order should state whether the stalking horse will receive a “credit” equal to the break-up or topping fee if the 4 stalking horse is the successful bidder at a higher price than the stalking horse’s initial bid. (4) No-Shop or No-Solicitation Provisions – Limited no-shop or no-solicitation provisions may be permissible if they are necessary to obtain a sale, they are consistent with the Debtor’s fiduciary duties, they do not chill the receipt of higher or better offers and they are appropriate under the circumstances of the case. Such provisions must be prominently disclosed in the motion and described with particularity. (v) Auction Procedures (1) If an auction is proposed, the Sale Procedures Order generally should provide that the auction will be conducted in the presence of all qualified bidders and other interested parties, and that each bidder will be informed of the terms of the previous bid. The motion should explain the rationale for proposing a different auction format in the Sale Procedures Order. (2) If a professional auctioneer will conduct the auction, the parties should refer to the statutory provisions and rules governing the conduct of professional auctioneers. See Bankruptcy Rule 6004 and Local Rules 6004-1 and 6005-1. (3) If the auction is sufficiently complex or disputes can reasonably be expected to arise, it is advisable at the sale procedures hearing to ask the Court whether it will consider conducting the auction in open court, or otherwise be available to resolve disputes. If the Debtor proposes to conduct the auction outside the presence of the judge, the auction proceedings should be audiotaped, videotaped or otherwise recorded, or the motion should explain why this is not appropriate. (4) Each bidder is expected to confirm at the auction that it has not engaged in any collusion with respect to the bidding or the sale. (5) The Sale Procedures Order should provide that the Court will not consider bids made after the auction has been closed, unless a motion to reopen the auction is made and granted. (c) Sale Hearing – The evidence presented or proffered at any sale hearing should be sufficient to enable the Court to make the following findings: (1) a sound business reason exists for the transaction; (2) the property has been adequately marketed, and the purchase price constitutes the highest or otherwise best offer and provides fair and reasonable consideration; (3) the proposed transaction is in the best interests of the Debtor’s estate, its creditors, and where relevant, its interest holders; (4) the purchaser has acted in good faith, within the meaning of section 363(m) of the Bankruptcy Code; 5 (5) adequate and reasonable notice has been provided; (6) the “free and clear” requirements of section 363(f) of the Bankruptcy Code, if applicable, have been met; (7) if applicable, the sale is consistent with the Debtor’s privacy policy concerning personally identifiable information, or, after appointment of a consumer ombudsman in accordance with section 332 of the Bankruptcy Code and notice and a hearing, no showing was made that such sale would violate applicable nonbankruptcy law; (8) the requirements of section 365 of the Bankruptcy Code have been met in respect of the proposed assumption and assignment or rejection of any executory contracts and unexpired leases; (9) where necessary, the Debtor’s board of directors or other governing body has authorized the proposed transaction; and (10) the Debtor and the purchaser have entered into the transaction without collusion, in good faith, and from arm’s-length bargaining positions, and neither party has engaged in any conduct that would cause or permit the agreement to be avoided under section 363(n) of the Bankruptcy Code. (i) Sound Business Purpose – The Debtor must demonstrate the facts that support a finding that a sound business reason exists for the sale. (ii) Marketing Efforts – The Debtor must demonstrate the facts that support a finding that the property to be sold has been marketed adequately under the circumstances. (iii) Purchase Price – The Debtor must demonstrate that fair and reasonable value will be received and that the proffered purchase price is the highest or best under the circumstances. If a bid includes deferred payments or any equity component, the Debtor should present evidence concerning, as applicable, its assessment of the proposed buyer’s creditworthiness or ability to realize the projected earnings upon which future payments or other forms of consideration to the estate are based. Any material purchase price adjustment provisions should be identified. (iv) Assumption and Assignment of Contracts and Leases – the Debtor must demonstrate at a minimum: (a) that it or the assignee has cured or will promptly cure all existing defaults under the agreement(s), and (b) that the assignee can provide adequate assurance that it will perform under the terms of the agreement(s) to be assumed and assigned under section 365 of the Bankruptcy Code. Additional notice and opportunity for a hearing for the non-debtor party to the lease or executory contract may be required if the offer to purchase a lease or executory contract sought to be approved at the sale hearing is submitted by a different entity than the stalking horse or the winning bid identifies different contracts or leases for assumption and assignment, or rejection, than the initial bid that was noticed for approval. If this possibility exists, the sale motion should acknowledge the Debtor will provide additional notice and opportunity to object under such circumstances. (d) Extraordinary Provisions – The following provisions (“Extraordinary Provisions”) must be disclosed conspicuously in a separate section of the sale motion 6 and, where applicable, in the related proposed Sale Procedures Order or Sale Order, and the motion must provide substantial justification therefor:4 (i) Sale to Insider – If the motion proposes a sale to an insider, as defined in the Bankruptcy Code, the motion must disclose what measures have been taken to ensure the fairness of the sale process and the proposed transaction. (ii) Agreements with Management – If the proposed buyer has discussed or entered into any agreements with management or key employees regarding compensation or future employment, the motion must disclose the material terms of any such agreements, and what measures have been taken to ensure the fairness of the sale and the proposed transaction in the light of any such agreements. (iii) Private Sale/No Competitive Bidding – If no auction is contemplated, the Debtor has agreed to a limited no-shop or no-solicitation provision, or the Debtor has otherwise not sought or is not actively seeking higher or better offers, the sale motion must so state and explain why such sale is likely to maximize the sale price. (iv) Deadlines that Effectively Limit Notice – If the proposed transaction includes deadlines for the closing or Court approval of the Sale Procedures Order or the Sale Order that have the effect of limiting notice to less than outlined in 2, below, the sale motion must provide an explanation. (v) No Good Faith Deposit – If any qualified bidder, including a stalking horse, is excused from submitting a good faith deposit, the sale motion must provide an explanation. (vi) Interim Arrangements with Proposed Buyer – If the Debtor is entering into any interim agreements or arrangements with the proposed purchaser, such as interim management arrangements (for which, approval, must also be sought after notice and a hearing under section 363(b) of the Bankruptcy Code), the sale motion must disclose the terms of such agreements. (vii) Use of Proceeds – If the Debtor proposes to release sale proceeds on or after the closing without further Court order, or to provide for an allocation of sale proceeds between or among various sellers or secured creditors, the sale motion must describe the intended disposition of such amounts and the rationale therefor. (viii) Tax Exemption – If the Debtor is seeking to have the sale declared exempt from taxes under section 1146(a) of the Bankruptcy Code, the sale motion 4 The fact that a similar provision was included in an order entered in a different case does not constitute a justification. 7 must prominently disclose the type of tax (e.g., recording tax, stamp tax, use tax, capital gains tax) for which the exemption is sought. It is not sufficient to refer simply to “transfer” taxes. In addition, the Debtor must identify the state or states in which the affected property is located. (ix) Record Retention – If the Debtor proposes to sell substantially all of its assets, the sale motion must confirm that the Debtor will retain, or have reasonable access to, its books and records to enable it to administer its bankruptcy case. (x) Sale of Avoidance Actions – If the Debtor seeks to sell its rights to pursue avoidance claims under chapter 5 of the Bankruptcy Code, the sale motion must so state and provide an explanation of the basis therefor. (xi) Requested Findings as to Successor Liability – If the Debtor seeks findings limiting the purchaser’s successor liability, the sale motion must disclose the adequacy of the Debtor’s proposed notice of such requested relief and the basis for such relief. Generally, the proposed Sale Order should not contain voluminous findings with respect to successor liability, or injunctive provisions, except as provided in 3, below. (xii) Future Conduct – If the Debtor seeks a determination regarding the effect of conduct or actions that may or will be taken after the date of the Sale Order, the sale motion must set forth the legal authority for such a determination. (xiii) Requested Findings as to Fraudulent Conveyance – If the Debtor seeks a finding to the effect that the sale does not constitute a fraudulent conveyance, it must explain why a finding that the purchase price is fair and reasonable is not sufficient. (xiv) Sale Free and Clear of Unexpired Leases – If the Debtor seeks to sell property free and clear of a possessory leasehold interest, license or other right, the Debtor must identify the non-debtor parties whose interests will be affected, and explain what adequate protection will be provided for those interests. (xv) Relief from Bankruptcy Rule 6004(h) – If the Debtor seeks relief from the stay imposed by Bankruptcy Rule 6004(h), the sale motion must disclose the business or other basis for such request. 2. Notice (a) General – Notice is always required under section 363(b) of the Bankruptcy Code; however, a hearing is required only if there are timely objections or the Court otherwise schedules a hearing. 8 (b) Notice of Proposed Sale Procedures (i) Notice Parties – Notice may be limited to those parties-in-interest best situated to articulate an objection to the limited relief sought at this stage, including: (1) any official or unofficial creditors’ committee or other committee, or if no creditors’ committee exists, the 20 largest unsecured creditors; (2) office of the United States Trustee; (3) postpetition lenders (or administrative agent thereof, if any); (4) indenture trustees; (5) prepetition lenders (or administrative agent thereof, if any); (6) Rule 2002; all entities who have requested notice under Bankruptcy (7) entities known or reasonably believed to have asserted a lien, encumbrance, claim or other interest in any of the assets offered for sale; and (8) parties to executory contracts and unexpired leases proposed to be assumed and assigned, or rejected as part of the proposed transaction. To provide additional marketing of the assets, the Debtor also should send a copy of the motion to entities known or reasonably believed to have expressed an interest in acquiring any of the assets offered for sale. Nothing herein is meant to imply that prospective bidders have standing to be heard with respect to the sale procedures. (c) Notice Period – As a general matter, the minimum 21-day notice period set forth in Bankruptcy Rule 2002(a) may be shortened with respect to the request for approval of a proposed Sale Procedures Order, that does not involve Extraordinary Provisions, and complies with these Sale Guidelines. The 14-day notice period provided for in EDNY LBR 9006-1(a) should provide sufficient time, under most circumstances, to enable any parties-in-interest to file an objection to proposed sale procedures. (d) and 6004. Contents of Notice – Notice should comport with Bankruptcy Rules 2002 9 3. Notice of Sale (a) Notice Parties – Generally the sale and hearing to approve the sale requires more notice than the hearing on approval of sale procedures. Notice of the sale and of the hearing to approve the sale should ordinarily be given to:5 (i) official and unofficial creditors’ committee and other committees; (ii) office of the United States Trustee; (iii) entities who have requested notice under Bankruptcy Rule 20026 (and, if the proposed sale is of a significant portion of the Debtor’s assets, all creditors of the Debtor); (iv) postpetition lenders (or administrative agent thereof, if any); (v) indenture trustees; (vi) prepetition lenders (or administrative agent thereof, if any); (vii) entities known or reasonably believed to have asserted a lien, encumbrance, claim or other interest in any of the assets offered for sale; (viii) parties to executory contracts or unexpired leases to be assumed and assigned, or rejected as part of the transaction; (ix) affected federal, state and local regulatory (including, for example, environmental agencies) and taxing authorities,7 including the Internal Revenue Service; (x) if applicable, a consumer privacy ombudsman appointed under section 332 of the Bankruptcy Code; and (xi) the Securities and Exchange Commission (if appropriate). If the contemplated sale implicates the antitrust laws of the United States, or a debt (other than for taxes) is owed by the Debtor to the United States government, notice also should be given to: 5 In larger cases, a sale of significant assets may also require notice of the proposed sale in publications of national circulation or other appropriate publications. 6 In the case of publicly traded debt securities, notice to indenture trustees and record holders may be sufficient to the extent that the identity of beneficial holders is not known. 7 Notice must be given to applicable taxing authorities, including the state attorney general or other appropriate legal officer, affected by the relief requested under section 1146(a) of the Bankruptcy Code. 10 (xii) the Federal Trade Commission; (xiii) the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice; and (xiv) the United States Attorney’s Office. To provide additional marketing of the assets, notice also should be sent to any entities known or reasonably believed to have expressed an interest in acquiring any of the assets. See 1(c)(4), above, for circumstances in which it may be required, based on changes in the proposed transaction that had originally been noticed, to give additional notice to parties to executory contracts and unexpired leases proposed to be assumed and assigned or rejected under section 365 of the Bankruptcy Code. (b) Notice Period – The statutory 21-day notice period should not be shortened for notice of the actual sale without a showing of good cause. The service of a prior notice or order, that discloses an intention to conduct a sale but does not state a specific sale date, does not affect the 21-day notice period. (c) Contents of Notice – Proper notice should comport with Bankruptcy Rules 2002 and 6004 and should include: (i) the Sale Procedures Order (including the date, time and place of any auction, the bidding procedures related thereto, the objection deadline for the sale motion and the date and time of the sale hearing); (ii) reasonably specific identification of the assets to be sold, and instructions for promptly obtaining a bid package or any other detailed information being made available to prospective bidders; (iii) the proposed form of asset purchase agreement, or instructions for promptly obtaining a copy; (iv) if appropriate, representations describing the sale as being free and clear of liens, claims, interests and other encumbrances (other than any claims and defenses of a consumer under any consumer credit transaction that is subject to the Truth in Lending Act or a consumer credit contract (as defined in 16 C.F.R. § 433.1, as amended), with all such liens, claims, interests and other encumbrances attaching with the same validity and priority to the sale proceeds; (v) any commitment by the buyer to assume liabilities of the Debtor; and 11 (vi) notice of proposed cure amounts and the right and deadline to object thereto and otherwise to object to the proposed assumption and assignment, or rejection of executory contracts and unexpired leases (see 1(c)(4), above, for additional notice that the Debtor may need to acknowledge may be required).8 4. Sale Order In the typical case, the findings in a proposed Sale Order should be limited to those set out in 1(c), above, tailored to the particular case. The decretal paragraphs should also be limited, and if more than one decretal paragraph deals with the same subject matter or form of relief, the proponent of the Sale Order should explain the reason. Finally, if the order contains a decretal paragraph that approves the purchase agreement or authorizes the Debtor to execute the purchase agreement, it should not also contain separate decretal paragraphs that approve specific provisions of the purchase agreement or declare their legal effect. With these admonitions, the Court may enter a Sale Order containing the following, if substantiated through evidence presented or proffered at the sale hearing: (a) Approval of Sale and Purchase Agreement – The order should authorize the Debtor to (1) execute the purchase agreement, along with any additional instruments or documents that may be necessary to implement the purchase agreement, provided that such additional documents do not materially change its terms; (2) consummate the sale in accordance with the terms and conditions of the purchase agreement and the instruments and agreements contemplated thereby; and (3) take all further actions as may reasonably be requested by the purchaser for the purpose of transferring the assets.9 (b) Transfer of Assets – The order may provide that the assets will be transferred free and clear of all liens, claims, encumbrances and interests, other than any claims and defenses of a consumer under any consumer credit transaction subject to the Truth in Lending Act or a consumer credit contract, as defined in 16 C.F.R. § 433.1 (and as may be amended), with all such interests attaching to the sale proceeds with the same validity and priority, and the same defenses, as existed immediately prior to the sale,10 8 This notice may be provided in a separate schedule sent only to the parties to such agreements. 9 Each and every federal, state and local government agency or department may be directed to accept any and all documents and instruments necessary and appropriate to consummate the transactions contemplated by the purchase agreement. 10 If any person or entity that has filed financing statements, mortgages, mechanic’s liens, lis pendens, or other documents evidencing interests in the assets has not delivered to the Debtor prior to the closing date termination statements, instruments of satisfaction, and/or releases of all such interests, the Debtor may be authorized and directed to execute and file such statements, instruments, releases and other documents on behalf of such person or entity. The Debtor should try to anticipate whether there are any allocation issues presented by the proposed “free and clear” relief. 12 and persons and entities holding any such interests will be enjoined from asserting such interests against the purchaser, its successors or assigns, or the purchased assets, unless the purchaser has otherwise agreed. (c) Assumption and Assignment of Executory Contracts and Leases to Purchaser – The Debtor will be authorized and directed to assume and assign to the purchaser executory contracts and leases free and clear of all liens, claims, encumbrances and interests, with all such interests attaching to the sale proceeds with the same validity and priority as they had in the assets being sold (provided, however, that in certain circumstances additional notice may be required before assumption and assignment or rejection of executory contracts and leases can be granted. See 1(c)(4), above). (d) Statutory Provisions – The proposed order should specify those sections of the Bankruptcy Code and Bankruptcy Rules that are being relied on, and identify those sections, such as Bankruptcy Rule 6004(h), that are, to the extent permitted by law, proposed to be limited or abridged. (e) Good Faith/No Collusion – The transaction has been proposed and entered into by the Debtor and the purchaser without collusion, from arm’s-length bargaining positions, and in good faith within the meaning of section 363(m) of the Bankruptcy Code. The proposed Sale Order should also specify that neither the Debtor nor the purchaser has engaged in any conduct that would cause or permit the transaction to be avoided under section 363(n) of the Bankruptcy Code. 13
=== General Order No. 613 ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------------x RE: Guidelines for Fees and Disbursements for Professionals in Eastern District of New York Bankruptcy Cases --------------------------------------------------------------------x General Order 613 By resolution of the Board of Judges for the United States Bankruptcy Court for the Eastern District of New York, it is resolved that in order to further provide professionals with clear and concise procedures for compensation and reimbursement of expenses and to combine into one order the requirements heretofore promulgated by this Court and the United States Trustee, applications for compensation and reimbursement of expenses filed in the Bankruptcy Court for the Eastern District of New York shall conform substantially to the annexed guidelines. This order shall become effective on June 10, 2013, and apply to all fee applications filed on or after that date. Dated: Brooklyn, New York June 4, 2013 s/Carla E. Craig CARLA E. CRAIG Chief United States Bankruptcy Judge Guidelines for Fees and Disbursements for Professionals in Eastern District of New York Bankruptcy Cases A. Contents of Applications for Compensation and Reimbursement of Expenses. All applications should include sufficient detail to demonstrate compliance with the standards set forth in 11 U.S.C. § 330. The fee application should also contain sufficient information about the case and the applicant to facilitate a review without searching for relevant information in other documents. The following will facilitate review of the application. (1) Information about the Applicant and the Application. The following information should be provided in every fee application: (i) Date the bankruptcy petition was filed, date of the order approving employment, identity of the party represented, date services commenced, and whether the applicant is seeking compensation under a provision of the Bankruptcy Code other than section 330. Terms and conditions of (ii) source of compensation, existence and terms controlling use of a retainer, and any budgetary or other limitations on fees. and compensation, employment (iii) Names and hourly rates of all applicant's professionals and paraprofessionals who billed time, explanation of any changes in hourly rates from those previously charged, and statement of whether the compensation is based on the customary compensation charged by comparably skilled practitioners in cases other than cases under title 11. (iv) Whether the application is interim or final, and the dates of previous orders on interim compensation or reimbursement of expenses along with the amounts requested and the amounts allowed or disallowed, amounts of all previous payments, and amount of any allowed fees and expenses remaining unpaid. (v) Whether the person on whose behalf the applicant is employed has been given the opportunity to review the application and whether that person has approved the requested amount. (vi) When an application is filed more than once every 120 days after the order for relief or after a prior application to the Court, the date and terms of the order allowing leave to file at shortened intervals. (vii) Time period of the services or expenses covered by the application. (2) Case Status. The following information should be provided to the extent that it is known to or can be reasonably ascertained by the applicant: (i) In a chapter 7 case, a summary of the administration of the case including all moneys received and disbursed in the case, when the case is expected to close, and, if applicant is 1 seeking an interim award, whether it is feasible to make an interim distribution to creditors without prejudicing the rights of any creditor holding a claim of equal or higher priority. (ii) In a chapter 11 case, whether a plan and disclosure statement have been filed and, if not yet filed, when the plan and disclosure statement are expected to be filed; whether all quarterly fees have been paid to the United States Trustee; and whether all monthly operating reports have been filed. (iii) In a chapter 12 or 13 case, where the debtor’s attorney is the applicant, whether the application is in accordance with the 2016(b) statement that was filed at the beginning of the case, and whether approval of the application would have an effect on the debtor’s plan. (iv) In every case, the amount of cash on hand or on deposit, the amount and nature of accrued unpaid administrative expenses, and the amount of unencumbered funds in the estate. (v) In every case, any material changes in the status of the case that occur after the filing of the fee application should be raised, orally or in writing, at the hearing on the application or, if a hearing is not required, prior to the expiration of the time period for objection. (3) Summary Sheet. All applications should contain a summary or cover sheet that provides a synopsis of the following information: (i) (ii) Total compensation and expenses requested and any amount(s) previously requested; Total compensation and expenses previously awarded by the court; Name and applicable billing rate for each person who billed time during the period, (iii) and date of bar admission for each attorney; Total hours billed and total amount of billing for each person who billed time during (iv) billing period; and Computation of blended hourly rate for persons who billed time during period, (v) excluding paralegal or other paraprofessional time. (4) Project Billing Format. To facilitate effective review of the application, all time and service entries should be (i) arranged by project categories. The project categories set forth in Exhibit A should be used to the extent applicable. A separate project category should be used for administrative matters and, if payment is requested, for fee application preparation. 2 The Court has discretion to determine that the project billing format is not necessary in (ii) a particular case or in a particular class of cases. Each project category should contain a narrative summary of the following (iii) information: a. a description of the project, its necessity and benefit to the estate, and the status of the project including all pending litigation for which compensation and reimbursement are requested; b. identification of each person providing services on the project; and c. a statement of the number of hours spent and the amount of compensation requested for each professional and paraprofessional on the project. (vi) Time and service entries are to be reported in chronological order under the appropriate project category. (vii) Time entries should be kept contemporaneously with the services rendered in time periods of tenths of an hour. Services should be noted in detail, with each service showing a separate time entry and not combined or "lumped" together; however, tasks performed on a project which total a de minimis amount of time can be combined or lumped together if they do not exceed 0.5 hours on a daily aggregate. Time entries for telephone calls, letters, and other communications should give sufficient detail to identify the parties to and the nature of the communication. Time entries for court hearings and conferences should identify the subject of the hearing or conference. If more than one professional from the applicant firm attends a hearing or conference, the applicant should explain the need for multiple attendees. (5) Reimbursement for Actual, Necessary Expenses. Except to the extent that paragraph F, infra, is to the contrary, the following factors are relevant to a determination that an expense is proper: (i) Whether the expense is reasonable and economical. (ii) Whether the requested expenses are customarily charged to non-bankruptcy clients of the applicant. (iii) Whether applicant has provided a detailed itemization of all expenses including the date incurred, description of expense (e.g., type of fare, rate, destination), method of computation, and, where relevant, name of the person incurring the expense and purpose of the expense. Itemized expenses should be identified by their nature (e.g., long distance telephone, copy costs, messengers, computer research, airline travel, etc.) and by the month incurred. Unusual items require more detailed explanations and should be allocated, where practicable, to specific projects. type of travel, 3 (iv) Whether applicant has prorated expenses where appropriate between the estate and other cases (e.g., travel expenses applicable to more than one case) and has adequately explained the basis for any such proration. (v) Whether expenses incurred by the applicant to third parties are limited to the actual amounts billed to, or paid by, the applicant on behalf of the estate. (vi) Whether applicant can demonstrate that the amount requested for expenses incurred in-house reflect the actual cost of such expenses to the applicant, or the actual cost cannot easily be determined. (vii) Whether the expenses appear to be in the nature nonreimbursable overhead. Overhead consists of all continuous administrative or general costs incident to the operation of the applicant's office and not particularly attributable to an individual client or limited to: word processing, proofreading, case. Overhead includes, but administrative and other clerical services; rent, utilities, office equipment and furnishings; insurance, taxes, local telephones, and monthly car phone and cellular phone charges; lighting, heating and cooling; and library and publication charges. is not (viii) Whether applicant has adhered to allowable rates for expenses as fixed by local rule or order of the Court. B. Certification (1) Each application for fees and disbursements must contain a certification by the professional designated by the applicant with the responsibility in the particular case for compliance with these Amended Guidelines (the “Certifying Professional”), that (a) the Certifying Professional has read the application; (b) to the best of the Certifying Professional’s knowledge, information and belief formed after reasonable inquiry, the fees and disbursements sought fall within these Amended Guidelines, except as specifically noted in the certification and described in the fee application; (c) except to the extent that fees or disbursements are prohibited by these Amended Guidelines, the fees and disbursements sought are billed at rates and in accordance with practices customarily employed by the applicant and generally accepted by the applicant’s clients; and (d) in providing a reimbursable service, the applicant does not make a profit on the service, whether the service is performed by the applicant in-house or through a third party. (2) Each application for fees and disbursements must contain a certification by the Certifying Professional that the United States Trustee, trustee, debtor, and, where applicable, the chair of each official committee, have been provided, not later than 21 days after the end of each month, with a statement of the fees and disbursements accrued during such month. The statement must contain a list of professionals and paraprofessionals providing services, their respective billing rates, the aggregate hours spent by each professional and paraprofessional, a general description of services rendered, a reasonably detailed breakdown of the disbursements incurred and an explanation of billing practices. 4 (3) Each application for fees and disbursements must contain a certification by the Certifying Professional that the United States Trustee, trustee, and, in a chapter 11 case, the chair of each official committee and the debtor have all been provided with a copy of the relevant fee application at least 21 days before the date set by the court or any applicable rules for filing fee applications. C. Confidentiality Requests If an applicant believes that there is a need to omit any information or description of services as privileged or confidential, the applicant must first get the approval of the court; provided, however, that if such a request is granted, the court may require that any application also contain a set of unredacted time records for in camera inspection. D. Fee Enhancement (1) Any request for an enhancement of fees over the fee which would be derived from the applicable hourly rates multiplied by the hours expended or from the court order authorizing retention must be specifically identified in the application, including the amount being requested, and the justification for the requested enhancement must be set forth in detail. (2) Any request for such an enhancement of fees must be set forth in the summary sheet required by these Amended Guidelines. E. Voluntary Reduction of Fees or Disbursements If an applicant is not requesting all of the fees or disbursements to which it might be entitled based on the applicable hourly rates multiplied by the hours expended or based on the court order authorizing retention, the voluntary reduction must be identified in the application, including the amount of the reduction taken. If the voluntary reduction pertains to services which that continue to appear in the detailed description of services rendered or to disbursements that continue to be listed, the entries for which no compensation or reimbursement is sought must be identified. F. Provisions Regarding Disbursements (1) No Enhanced Charges for Disbursements. Except to the extent that disbursements are prohibited by these Amended Guidelines, the disbursements sought must be billed at rates, and in accordance with, practices customarily employed by the applicant and generally accepted by the applicant’s clients. (2) Photocopies. Photocopies shall be reimbursable at the lesser of $0.10 per page or cost. 5 (3) Overtime Expense. No overtime expense for non-professional and paraprofessional staff shall be reimbursable unless fully explained and justified. Any such justification must indicate, at a minimum, that: (i) Services after normal closing hours are absolutely necessary for the case; and That charges are for overtime expenses paid. The reasonable expenses of a (ii) professional required to work on the case after 8:00 p.m. are reimbursable provided that, if the professional dines before 8:00 p.m., the expense is reimbursable only if the professional returns to the office to work for at least one and one half hours. In any event, the expense for an individual’s meal may not exceed $20.00. The foregoing Guidelines have been approved by the Board of Judges and shall be subject to annual review as to adjustments to disbursement/reimbursement amounts set forth hereinabove in Provision F. 6 EXHIBIT A PROJECT CATEGORIES The following is a list of suggested project categories for use in most bankruptcy cases. Only one category should be used for a given activity. Professionals should make their best effort to be consistent in their use of categories, whether within a particular firm or by different firms working on the same case. It would be appropriate for all professionals to discuss the categories in advance and agree generally on how activities will be categorized. This list is not exclusive. The application may contain additional categories as the case requires. They are generally more applicable to attorneys in chapter 7 and chapter 11 cases, but may be used by all professionals as appropriate. ASSETANALYSIS ANDRECOVERY: Identification and review of potential assets including causes of action and non litigation recoveries. ASSETDISPOSITION: Sales, leases (§ 365 matters), abandonment and related transaction work. ‐ BUSINESSOPERATIONS: Issues related to debtor 11 such as employee, vendor, tenant issues and other similar problems. possession operating in chapter in CASEADMINISTRATION: Coordination and compliance activities, including preparation of statement of financial affairs; schedules; list of contracts; United States Trustee interim statements and operating reports; contacts with the United States Trustee; general creditor inquiries. ‐ ‐ CLAIMS ADMINISTRATION AND OBJECTIONS: Specific claim inquiries; bar date motions; analyses, objections and allowances of claims. EMPLOYEEBENEFITS/PENSIONS: Review issues such as severance, retention, 401K coverage and continuance of pension plan. FEE/EMPLOYMENTAPPLICATIONS: Preparations of employment and fee applications for self or others; motions to establish interim procedures. FEE/EMPLOYMENT OBJECTIONS: Review of and objections to the employment and fee applications of others. FINANCING: Matters under §§ 361, 363 and 364 including cash collateral and secured claims; loan document analysis. LITIGATION: There should be a separate category established for each matter (e.g. XYZ Litigation). MEETINGS OF CREDITORS: Preparing for and attending the conference of creditors, the § 341(a) meeting and other creditors' committee meetings. 7 PLAN AND DISCLOSURE STATEMENT: Formulation, presentation and confirmation; compliance with the plan confirmation order, related orders and rules; disbursement and case closing activities, except those related to the allowance and objections to allowance of claims. RELIEF FROM STAY PROCEEDINGS: Matters relating to termination or continuation of automatic stay under § 362. The following categories are generally more applicable to accountants and financial advisors, but may be used by all professionals as appropriate. ACCOUNTING/AUDITING: Activities related to maintaining and auditing books of account, preparation of financial statements and account analysis. BUSINESS ANALYSIS: Preparation and review of company business plan; development and review of strategies; preparation and review of cash flow forecasts and feasibility studies. CORPORATEFINANCE: Review financial aspects of potential mergers, acquisitions and disposition of company or subsidiaries. DATA ANALYSIS: Management information systems review, installation and analysis, construction, maintenance and reporting of significant case financial data, lease rejection, claims, etc. LITIGATION CONSULTING: Providing consulting and expert witness services relating to various bankruptcy matters such as insolvency, feasibility, avoiding actions; forensic accounting, etc. RECONSTRUCTIONACCOUNTING: Reconstructing books and records from past transactions and bringing accounting current. TAXISSUES: Analysis of tax issues and preparation of state and federal tax returns. VALUATION: Appraise or review appraisals of assets. Exhibit A Page 2 ‐ 8
=== General Order No. 676 ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x In re: Adoption of Modified Loss Mitigation Program Procedures General Order No. 676 Amending General Orders Nos. 543 and 582 ---------------------------------------------x WHEREAS, by resolution of the Board of Judges of the United States Bankruptcy Court for the Eastern District of New York, General Order #543, dated December 8, 2009, instituted a uniform, comprehensive, court-supervised loss mitigation program in order to facilitate consensual resolutions for individual debtors whose residential real property is at risk of loss to foreclosure; and WHEREAS, the loss mitigation program has helped avoid the need for various types of bankruptcy litigation, reduced costs to debtors and secured creditors, and enabled debtors to reorganize or otherwise address their most significant debts and assets under the United States Bankruptcy Code; and WHEREAS, the Loss Mitigation Program Procedures were adopted, pursuant to 11 U.S.C. § 105(a), and shall apply in all individual cases assigned under Chapter 7, 11, 12 or 13 of the Bankruptcy Code, to Chief Judge Carla E. Craig, Judge Elizabeth S. Stong, Judge Robert E. Grossman, Judge Nancy Hershey Lord and Judge Louis A. Scarcella, and any other Judge of this Court who may elect to participate in the Loss Mitigation Program; and WHEREAS, General Order #543 also provided that the Court may modify the Loss Mitigation Program Procedures from time to time by duly adopted General Order; and WHEREAS, after further review of the Loss Mitigation Program, the Board of Judges has agreed to certain modifications to the procedures and forms; now therefor, IT IS HEREBY ORDERED that the revised Loss Mitigation Program Procedures and forms are adopted effective immediately and shall be available in the Clerk's office and on the Court's web site. Dated: Brooklyn, New York April 1, 2019 /s/ CARLA E. CRAIG Carla E. Craig, Chief U.S. Bankruptcy Judge
=== Order Awarding Interim--Final Compensation and Reimbursement of Expenses in Capter 11 Case ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK In re: [Insert Case Caption], Debtor. x x Chapter 11 Case No. [Insert Case No.] -spg ORDER GRANTING APPLICATION OF [NAME OF PROFESSIONAL], [ROLE IN CASE] FOR ALLOWANCE OF INTERIM/FINAL COMPENSATION AND REIMBURSEMENT OF EXPENSES Upon the application dated [Date] of [Insert Name of Applicant] seeking an award of compensation and reimbursement of expenses for the period [Date] through [Date] (“Application”) [ECF No. ___]; and a hearing on the Application having been held on [Date] (“Hearing”); and good and sufficient notice of the Application and the Hearing having been provided; and objections, if any, having been overruled, withdrawn or resolved, and good cause appearing therefor, it is ORDERED, that the Application is granted to the extent provided in the attached Schedules. SCHEDULE A SUMMARY OF INTERIM APPLICATIONS Application ECF No. Fee Period Interim Fees Requested Interim Fees Awarded Holdback [20]% Expenses Requested Expenses Awarded Fees to be Paid Expenses to be Paid N/A N/A N/A CURRENT PERIOD PRIOR PERIODS TOTAL __/__/202_ to __/__/202_ __/__/202_ to __/__/202_ __/__/202_ to __/__/202_ __/__/202_ to __/__/202_ SCHEDULE B FINAL FEE APPLICATION Application ECF No. __ Period __/__/2-__ to __/__/20__ Final Fees Requested in Application Reductions to Fees1 Final Fees Awarded Fees Paid to Date Final Fees Due2 Final Expenses Requested in Application Reductions to Expenses1 Final Expenses Awarded Expenses Paid to Date Final Expenses Due3 1 Inclusive of fees and expenses disallowed by the Court and voluntary or negotiated reductions made after Applicant filed the Application. 2 Applicant has $__________ of its retainer that shall be applied to Final Fees Due. 3 Applicant has $___________ of its retainer that shall be applied to Final Expenses Due.
=== Order Granting Conditional Relief from the Automatic Stay ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X In re: [Insert Case Caption], Chapter [Insert Chapter No.] Case No. [Insert Case No.]-spg Debtor. ---------------------------------------------------------X ORDER GRANTING CONDITIONAL RELIEF FROM THE AUTOMATIC STAY Upon the motion [ECF No. ___] (the “Motion”), filed [Date], of [Name of Movant] (“Movant”), for relief from the automatic stay with respect to [Address of Real Property; Vehicle, Make, Model VIN] (the “Collateral”); and a hearing on the Motion having been held on [Date], the transcript of which is incorporated herein by reference; and good and sufficient notice of the Motion and the hearing having been provided; and objections, if any, having been overruled, withdrawn or resolved; and good cause appearing therefor, it is ORDERED, the above-captioned debtor (the “Debtor”) shall perform the following obligations (the “Obligations”): 1. Make the following payments so as to be received by the Movant by the Payment Date: PAYMENT AMOUNT: PAYMENT DATE: PAYMENT APPLIED TO: All payments shall be made pursuant to the following instructions: [Mailing Address and Other Instructions]. 2. Perform the following obligations:[Other Requirements, if any, e.g., payment of real estate taxes, providing Movant with proof of insurance, etc.] ; and it is further ORDERED, if the Debtor fails to perform the Obligations timely, Movant may serve a notice of default (the “Notice of Default”) that identifies the Obligations in default. The Notice of Default shall advise that if all defaults are not cured within ten (10) business days after service of the Notice of Default (the “Cure Period”), Movant shall be entitled to seek relief from the automatic stay. Any Notice of Default shall be served by first class mail or overnight carrier on the Debtor and Debtor’s counsel [and the case trustee]; and it is further ORDERED, if the default is not cured within the Cure Period, Movant may file and serve an affidavit of non-compliance (the “Affidavit of Non-Compliance”) on the docket of this case identifying the Obligations in default and attesting to the Debtor’s failure to cure the defaults within the Cure Period. The Notice of Default and proof of service of the Notice of Default shall be attached to the Affidavit of Non-Compliance. Upon filing the Affidavit of Non-Compliance, Movant may submit a proposed order modifying the automatic stay to permit Movant, its agents, assigns, or successors in interest, to exercise their rights and remedies available under applicable law as to the Collateral; and it is further ORDERED, that all other relief sought in the Motion is denied. 2
=== Order Granting In Rem Relief from the Automatic Stay ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X In re: [Insert Caption], Chapter [Insert Chapter No.] Case No. [Insert Case No.]-spg Debtor. ---------------------------------------------------------X ORDER GRANTING RELIEF FROM THE AUTOMATIC STAY [AND THE CODEBTOR STAY]AND IN REM RELIEF Upon the motion [ECF No. ___] (the “Motion”) of [Name of Movant] (“Movant”), for relief from the automatic stay and in rem relief with respect to [Address of Real Property] (the “Collateral”) [and for relief from the codebtor stay with respect to [Name of Co- Debtor] (the “Co-Debtor”)]and a hearing on the Motion having been held on [Date]; and good and sufficient notice of the Motion and the hearing having been given; and objections, if any, having been overruled, withdrawn or resolved, and good cause appearing therefor, it is ORDERED, that the automatic stay in effect pursuant to 11 U.S.C. § 362(a), is modified pursuant to 11 U.S.C. § 362(d)(__) to permit Movant, its agents, assigns, or successors in interest, to exercise their rights and remedies available under applicable law as to the Collateral; and it is further [ORDERED, that the automatic stay in effect pursuant to 11 U.S.C. § 1301(a) is modified pursuant to 11 U.S.C. § 1301(c)(__) to permit Movant, its agents, assigns, or successors in interest, to exercise their rights and remedies available under applicable law as to the Co- Debtor; and it is further] ORDERED, within thirty (30) days of any sale or disposition of the Collateral, the Movant shall serve a copy of the report of sale or disposition of the Collateral on the above- captioned debtor, debtor’s counsel, [and the case trustee]. Any surplus proceeds realized from the sale or other disposition of the Collateral shall be remitted to the [case trustee OR debtor]; and it is further ORDERED, pursuant to 11 U.S.C. § 362(d)(4), if recorded in compliance with applicable State laws governing notices of interests or liens in real property, this Order shall be binding in any other bankruptcy case purporting to affect the Collateral that is commenced not later than two (2) years after the date of entry of this Order; except that a debtor in a subsequent bankruptcy case may move for relief from this Order based upon changed circumstances or for good cause shown, after notice and a hearing; and it is further ORDERED, that all other relief requested in the Motion is denied.
=== Order Granting Relief from the Automatic Stay ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X In re: [Insert Caption], Chapter [Insert Chapter No.] Case No. [Insert Case No.]-spg Debtor. ---------------------------------------------------------X ORDER GRANTING RELIEF FROM THE AUTOMATIC STAY [AND THE CODEBTOR STAY] Upon the motion [ECF No. ___] (the “Motion”) of [Name of Movant] (“Movant”), for relief from the automatic stay with respect to [Address of Real Property; Vehicle Make, Model, and VIN, ] (the “Collateral”) [and for relief from the codebtor stay respecting [Name of Co-Debtor] (the “Co-Debtor”)]; and a hearing on the Motion having been held on [Date]; and good and sufficient notice of the Motion and the hearing having been provided; and objections, if any, having been overruled, withdrawn or resolved, and good cause appearing therefor, it is ORDERED, that the automatic stay in effect pursuant to 11 U.S.C. § 362(a) is modified pursuant to 11 U.S.C. § 362(d)(__) to permit Movant, its agents, assigns, or successors in interest, to exercise their rights and remedies available under applicable law as to the Collateral; and it is further [ORDERED, that the automatic stay in effect pursuant to 11 U.S.C. § 1301(a) is modified pursuant to 11 U.S.C. § 1301(c)(__) to permit Movant, its agents, assigns, or successors in interest, to exercise their rights and remedies available under applicable law as to the Co-Debtor; and it is further] ORDERED, within thirty (30) days of any sale or disposition of the Collateral, the Movant shall serve a copy of the report of sale or disposition of the Collateral on the above captioned debtor, debtor’s counsel, [and the case trustee]. Any surplus proceeds realized from the sale or other disposition of the Collateral shall be remitted promptly to the [case trustee OR debtor]; and it is further ORDERED, that all other relief requested in the Motion is denied.
=== Order Scheduling Confirmation Hearing in a Case Filed under Subchapter V ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X In re: ---------------------------------------------------------X Debtor. Chapter 11 (Subchapter V) Case No. -spg ORDER SCHEDULING HEARING ON CONFIRMATION OF SUBCHAPTER V PLAN OF REORGANIZATION AND FIXING DEADLINES FOR VOTING TO ACCEPT OR REJECT PLAN, OBJECTING TO PLAN, AND ELECTING TREATMENT UNDER BANKRUPTCY CODE SECTION 1111(b) Upon the Plan of Reorganization [ECF No. ___] (the “Plan”) for the above-captioned debtor and debtor in possession (the “Debtor”); it is ORDERED, that a hearing on Plan confirmation (the “Confirmation Hearing”) shall be held before the Honorable Sheryl P. Giugliano, United States Bankruptcy Judge, United States Bankruptcy Court for the Eastern District of New York, Alfonse M. D’Amato Federal Courthouse, Courtroom 860, 290 Federal Plaza, Central Islip, New York 11722 (the “Bankruptcy Court”) on at (prevailing Eastern time); and it is further ORDERED, that those intending to appear at the Confirmation Hearing must register with eCourt Appearances no later than two (2) days prior to the Confirmation Hearing. The video link for the Confirmation Hearing will be emailed only to those that register with eCourt Appearances in advance of the Confirmation Hearing. Instructions for registering with eCourt Appearances can be found at https://www.nyeb.uscourts.gov/node/2126. If you do not have internet access or are otherwise unable to register with eCourt Appearances, you may call or email Judge Giugliano’s courtroom deputy for instructions at (631) 712-6276, [email protected]; and it is further ORDERED, that objections, if any, to Plan confirmation shall be in writing and filed with the Clerk of the Bankruptcy Court with a courtesy copy to Chambers by (the “Objection Deadline”). Objections to Plan confirmation shall be served so as to be received by the Objection Deadline by: (a) Counsel for the Debtor – of ; (b) Subchapter V Trustee – of ; (c) Office of the United States Trustee, Eastern District of New York – Central Islip, Attn.: ; and (d) all parties that have filed a notice of appearance and request for notice; and it is further ORDERED, for a ballot to be counted as accepting or rejecting the Plan, it must conform to Official Form B314 and be received by Debtor’s counsel by (the “Voting Deadline”). Ballots shall be mailed or emailed to: e-mail address ; and it is further of , ORDERED, a holder of a secured claim electing treatment of its claim as secured to the extent of the allowed amount of such claim, under Bankruptcy Code section 1111(b)(2), must file a notice of the election on the docket of this case by (the “1111(b) Election Deadline”); and it is further ORDERED, service by first class mail of the Plan, this Order, and a ballot conforming to Official Form B314, and a notice substantially in the form annexed hereto (the “Solicitation Package”) on (i) all creditors and parties in interest, (ii) all entities that have filed a notice of appearance and request for notice, (iii) the Subchapter V Trustee, and (iv) the Office of the United States Trustee by first class mail not later than shall constitute good and sufficient notice of the Plan, Confirmation Hearing, Objection Deadline, Voting Deadline, and 1111(b) Election Deadline; and it is further ORDERED, that Debtor’s counsel shall file proof of service of the Solicitation Package on or before ; and it is further ORDERED, that Debtor’s counsel shall file (i) documents in compliance with E.D.N.Y. L.B.R. 3018-1(a); (ii) an affirmation or declaration(s) in support of Plan confirmation; and (iii) a memorandum in support of Plan confirmation on or before ; and it is further ORDERED, that replies to any objections to Plan confirmation shall be filed on or before ; and it is further ORDERED, that to the extent the Confirmation Hearing is contested, the parties shall confer and submit a Pretrial Order from Judge Giugliano's form orders on or before .
=== Joint Pre-Trial Order ===
] [ Debtor(s) Chapter __ Case No. __-____ -spg UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------x : In re: : : : : : : ---------------------------------------------------------------x : : : : : Adv. Proc. No.__________-spg : : : : : : ---------------------------------------------------------------x Defendant(s). Plaintiff(s), - against - JOINT PRETRIAL ORDER The parties having conferred among themselves and with the Court pursuant to Fed. R. Civ. P. 16, the following statements, directions and agreements are adopted as the Pretrial Order herein. I. NATURE OF THE CASE [Set forth a brief statement of the general nature of the action and the relief sought by each party.] II. BASIS FOR JURISDICTION, WHETHER THE CASE IS CORE OR NON-CORE, AND WHETHER THE BANKRUPTCY JUDGE MAY ENTER FINAL ORDERS OR JUDGMENT [Set forth the basis for subject matter jurisdiction and whether the case is core or non- core, and if core, whether the court can enter final orders and judgment. If these matters are disputed, the positions of each of the parties should be explained. Also, state whether the parties consent to the bankruptcy judge entering final orders or judgment.] III. STIPULATED FACTS [Set forth any stipulated facts.] IV. PARTIES' CONTENTIONS The pleadings are deemed amended to embrace the following, and only the following, contentions of the parties: A. Plaintiff's Contentions [Set forth a brief statement of the plaintiff's contentions in separately numbered paragraphs as to all ultimate issues of fact and law.] B. Defendant's Contentions [Set forth a brief statement of the defendant's contentions in separately numbered paragraphs as to all ultimate issues of fact and law.] V. ISSUES TO BE TRIED [Set forth an agreed statement of the issues to be tried.] VI. PLAINTIFF'S EXHIBITS VII. DEFENDANT'S EXHIBITS No exhibit not listed by plaintiff or defendant may be used at trial except (a) for cross- examination purposes or (b) if good cause for its exclusion from the pretrial order is shown. Each side shall list all exhibits it intends to offer on its case in chief. The list shall include a description of each exhibit. All exhibits shall be pre-marked with each exhibit bearing a unique number or letter (numbers for plaintiff and letters for defendant), with the prefix PX for plaintiff’s exhibits and DX for defendant’s exhibits. Two copies of each exhibit shall be delivered to chambers with the proposed pretrial conference order. VIII. STIPULATIONS AND OBJECTIONS WITH RESPECT TO EXHIBITS Any objections not set forth herein will be considered waived absent good cause shown. [The parties shall set forth any stipulations with respect to the authenticity and admissibility of exhibits and indicate all objections to exhibits and the grounds therefor.] IX. PLAINTIFF'S WITNESS LIST X. DEFENDANT'S WITNESS LIST The witnesses listed may be called at trial. No witness not identified herein shall be permitted to testify on either party's case in chief absent good cause shown. Each party shall list the witnesses it intends to call on its case in chief and, if a witness's testimony will be offered by deposition, shall designate by page and line numbers the portions of the deposition transcript it intends to offer. Each party shall set forth any objections it has to deposition testimony designated by the other and the basis therefor. XI. RELIEF SOUGHT The plaintiff shall set forth the precise relief sought, including each element of damages. Dated: _________________ _____________________________ [Signature of Plaintiff’s counsel] _____________________________ [Signature of Defendant’s counsel]
=== Case Management and Scheduling Order ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------x : In re: : : Chapter __ Debtor(s) Case No. 25-71496-spg : : : ---------------------------------------------------------------x : : : : : Adv. Proc. No.__________-spg : : : : : : ---------------------------------------------------------------x CASE MANAGEMENT & SCHEDULING ORDER Defendant(s). Plaintiff(s), - against - This Case Management and Scheduling Order is entered by the Court, following a Scheduling Conference held on ____________, in accordance with Fed. R. Civ. P. 16(b) and 26(f). 1. Amended pleadings may not be filed and additional parties may not be joined except with leave of the Court. Any motion to amend or to join additional parties shall be filed within 60 days from the date of this Order. 2. Initial disclosure pursuant to Fed. R. Civ. P. 26(a)(1) shall be completed not later than 14 days from the date of this Order. 3. All fact discovery shall be completed no later than 120 days from the date of this Order. 1 4. The parties are to conduct discovery in accordance with the Federal Rules of Civil Procedure (“Civil Rules”), Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”) and the Local Rules of the Bankruptcy Court for the Eastern District of New York (“Local Bankruptcy Rules”). 5. Expert discovery a. All expert discovery shall be completed no later than 45 days after the date in paragraph 3, i.e., the completion of all fact discovery. b. No later than 30 days prior to the date in paragraph 3, i.e., the completion of all fact discovery, the parties shall meet and confer on a schedule for expert disclosures, including reports, production of underlying documents and depositions, provided that (i) plaintiff(s)’ expert report(s) shall be due before those of defendant(s)’ expert(s); and (ii) all expert discovery shall be completed by the date set forth in paragraph 5(a). 6. Motions a. All motions and applications shall be governed by the Civil Rules, Bankruptcy Rules and Local Bankruptcy Rules, including pre-motion conference requirements. Pursuant to the authority provided by Fed. R. Civ. P. 16(b)(2), a motion for summary judgment will be deemed untimely unless a request for a pre-motion conference relating thereto (see Local Bankruptcy Rule 7056-1) is made in writing within fourteen (14) days after the close of fact discovery (see paragraph 3 hereof). b. Motion papers shall be filed promptly after service. All motions, and courtesy copies of motions, shall include a table of contents listing all affidavits and exhibits. Affidavits and exhibits shall be clearly identified by tabs on both the original and courtesy copies. Exhibits shall be marked sequentially such that no exhibit number or 2 letter repeats, regardless of the affidavit to which it is attached. Exhibits for plaintiffs should be marked by numbers; exhibits for defendants should be marked by letters. c. Two courtesy copies of all motion papers shall be delivered to chambers as soon as practicable after filing. d. Unless prior permission has been granted, memoranda of law in support of and in opposition to motions are limited to 30 pages, and reply memoranda are limited to 15 pages. All memoranda shall be double-spaced, 12-point font, with 1” margins. Memoranda of 10 pages or more shall contain a table of contents and a table of authorities. e. Prior to filing a motion, counsel for the moving party shall contact my Courtroom Deputy at [email protected] by email to obtain a hearing date for the motion. 7. All counsel must meet face-to-face to discuss settlement or use of alternative dispute resolution (“ADR”) within 14 days after the date of this Order and, again, within 14 days after the close of fact discovery. Counsel shall advise the Court promptly if they agree to use ADR to try to resolve some or all of the claims in the case. The use of any ADR mechanism does not stay or modify any date in this Order unless the Court agrees on the application of any party. 8. Counsel shall submit a proposed Joint Pretrial Conference Order within 30 days after the close of fact and expert discovery (whichever is later). 9. In the event of any discovery dispute in this action, counsel shall first meet and confer in an effort to resolve the dispute. If counsel are unable to resolve the dispute, counsel for any party seeking assistance from the Court shall, before filing any discovery 3 motion, arrange a conference call with the Court with all counsel involved in the dispute. The Court will endeavor to resolve the dispute without the filing of any discovery motions. 10. The (cid:62)(cid:81)(cid:72)(cid:91)(cid:87)(cid:3)(cid:38)(cid:68)(cid:86)(cid:72)(cid:3)(cid:48)(cid:68)(cid:81)(cid:68)(cid:74)(cid:72)(cid:80)(cid:72)(cid:81)(cid:87)(cid:64)(cid:3)(cid:62)(cid:41)(cid:76)(cid:81)(cid:68)(cid:79)(cid:3)(cid:51)(cid:85)(cid:72)(cid:87)(cid:85)(cid:76)(cid:68)(cid:79)(cid:3)(cid:38)(cid:82)(cid:81)(cid:73)(cid:72)(cid:85)(cid:72)(cid:81)(cid:70)(cid:72)(cid:64)(cid:3) is scheduled for___________(cid:17) 11. This ORDER may not be modified or the dates herein extended, except by further Order of this Court for good cause shown. Any application to modify or extend any deadline established by this Order shall be made in a written application no less than 5 days prior to the expiration of the date sought to be extended. 4
=== Certificate of No Objection ===
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X In re: [Insert Caption], Chapter [Insert Chapter No.] Case No. [Insert Case No.]-spg Debtor. ---------------------------------------------------------X CERTIFICATE OF NO OBJECTION Pursuant to 28 U.S.C. § 1746 [and rule 9075-2 of the Local Bankruptcy Rules for the Eastern District of New York], the undersigned hereby certifies as follows: 1. On __________, [Name of Movant] (the “Movant”) filed a [Description of Motion] [ECF No. ___] (the “Motion”). 2. Contemporaneously with the Motion, the Movant filed a notice of hearing on the Motion (the “Notice of Hearing”), providing a hearing date and time of ___________ at __:__ __.m. (ET). 3. On __________, the Movant filed an affidavit of service [ECF No. ___], demonstrating adequate and sufficient service of the Motion and the Notice of Hearing. 4. Pursuant to rule 9006-1 of the Local Bankruptcy Rules for the Eastern District of New York, any papers responsive to the relief requested in the Motion were due no later than ____________ (the “Objection Deadline”), which is seven (7) days before the hearing presently scheduled on the Motion. 5. The Motion and Notice of Hearing were filed and served timely, and as of the filing of this Certificate of No Objection, more than forty-eight (48) hours have elapsed since the Objection Deadline. 6. To the best of my knowledge: (i) no objection has been filed or served on the Movant; (ii) there is no objection, responsive pleading, or request for a hearing or adjournment with respect to the Motion on the docket of the above-captioned case; and (iii) the Movant is aware of no informal objection to the relief requested in the Motion. 7. Accordingly, the undersigned respectfully requests entry of the proposed order, annexed hereto as Exhibit A and uploaded with the Court, at the Court’s earliest convenience without need for a hearing on the Motion. Dated: ______________ __________________________ [Name of Certifying Attorney] [Name of Law Firm] [Address of Law Firm] [Telephone of Law Firm] [Email Address of Certifying Attorney] Counsel for [Name of Movant] EXHIBIT A Proposed Order
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