Chapter 11 Confirmation Checklist; Presumptively Reasonable Attorneys' Fees for Debtor's Counsel in Chapter 13 Cases Assigned to Judge Warren; Case Management Order; In re Cox; See In re Gill; MOTION SCHEDULING - JUDGE WARREN; NEGATIVE NOTICE PROCEDURES; sample Rule 16 Order; writable PDF Discovery

=== Chapter 11 Confirmation Checklist ===

INSTRUCTIONS FOR CHAPTER 11 CONFIRMATION CHECKLIST Pursuant to § 1129(a), the Court must make affirmative findings on each of the points listed on the attached checklist. Therefore, the proponent of a plan must do the following in regard to each numbered statement on the checklist: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. If so, so state. If not, § 1129(c) will apply. If not debtor's plan, state that requirements of § 1121 are met. If no securities issued, so state. If securities issued, state whether registered or exempt from registration by § 1145. So state. So state. If pre−confirmation payments made, explain and show reasonableness. So state. Submit schedule. So state. Submit schedule. So state. Submit schedule. State number of classes and describe. If unsecured are subclassified, explain. State which class or classes have accepted the plan. State whether there are dissenting members of accepting classes: if there are, show that plan meets best interest of creditors test [§ 1129(a)(7)]. Submit liquidation balance sheet. State whether there are impaired classes that have not accepted the plan: if there are, show that plan is fair and equitable [§ 1129(b)(1)]. Explain treatment and provide evaluations where necessary. Submit brief synopsis explaning treatment of interest holders. Be prepared to offer proof of feasibility, testimonial or otherwise. Prepare and submit schedule of total payments. 14. State whether regulatory commission is involved. If yes, show approval. The attached checklist and schedules are intended to lend order and coherence to Chapter 11 confirmation hearings. The Court strongly urges the proponent of a plan to follow the checklist sequence at the hearing and to prepare the requested schedules in a timely fashion. As is the case with any standardized format, this one was composed with the typical case in mind. If yours is an extraordinary case, it may not fit nicely into the format. However, to the extent possible, it is recommended that you adhere closely to the basic requirements and spirit of the guidelines. CHAPTER 11 CONFIRMATION CHECKLIST A. VALIDITY: 1. 2. 3. 4. This is the only proposed plan in this case. The proponent is entitled to propose a plan at this time and has conformed to the disclosure and solicitation requirements of section 1123 and 1125. The plan is proposed in good faith and not by any means forbidden by law. The principal purpose of the plan is not the avoidance of taxes or avoidance of § 5 of the Securities Act of 1933. The plan prohibits the issuance of non−voting equity securities and provides for an appropriate distribution of voting power among the various classes of equity security holders. B. TREATMENT OF ADMINISTRATIVE EXPENSES AND PRIORITY CLAIMS: 5. 6. 7. 8. The proponent has disclosed all payments already made or proposed to be made under the plan and any payments made or to be made prior to confirmation is reasonable. All administrative and involuntary gap expenses will be paid in full on the effective day of the plan. All wage, benefit plan and consumer deposit claims will be paid in accordance with the provisions of §1129(a) (9). All tax claims will be paid in full over a period of time not to exceed 5 years after the date of the order for relief. C. TREATMENT OF NON−PRIORITY CLAIMS AND INTERESTS: 9. 10. All classes of claims and interests have been properly designated. At least one class (exclusive of insiders) has accepted the plan. BEST INTERESTS OF CREDITORS: 11(a). The plan is in the best interests of creditors. All dissenting holders of claims or interests will receive or retain property of a value, as of the effective date of the plan, that is not less than the amount that such holder would so receive or retain if the debtor were liquidated under Chapter 7, except that: 11(b). If the holder of a claim is a member of a class to which §1111 (b) (1) applies, such holder will receive or retain under the plan property of a value that is not less than the value of such creditor's interest in the collateral securing the claim. CRAMDOWN: 12(a). There are impaired classes that have not accepted the plan. 12(b). The plan provides for fair and equitable treatment (as provided for in §1129(b) (1) (A of impaired secured creditors who have not accepted the plan. 12(c). Each impaired unsecured class and all below it in priority are treated according to the absolute priority rule (as provided for in §1129(b . D. FEASIBILITY: 13. 14. Adequate means for execution of the plan has been provided and confirmation of the plan is not likely to be followed by liquidation or further reorganization. Any regulatory commission with jurisdiction over the rates of the debtor has approved any rate change provided for in the plan. ATTACH SCHEDULE OF CLAIMS SCHEDULE OF CLAIMS AND EXPENSES I. EXPENSES OF ADMINISTRATION & INVOLUNTARY GAP EXPENSES CLAIMANT Clerk, U.S. Bankruptcy Court $ ____________________ Attorney for Debtor $ ____________________ Attorney for Trustee $ ____________________ Attorney for Creditors Committee $ ____________________ Accountant Examiner Trustee $ ____________________ $ ____________________ $ ____________________ Creditors Committee $ ____________________ Administrative Expenses: $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ $ ____________________ ________________________________ II. PRIORITY CLAIMS CLASS OF CLAIMS AMOUNT YES/NO/NA TREATMENT Wages: $ _________________________ ___________ ___________ $ _________________________ ___________ ___________ Benefits: $ _________________________ ___________ ___________ $ _________________________ ___________ ___________ Taxes: $ _________________________ ___________ ___________ $ _________________________ ___________ ___________ $ _________________________ ___________ ___________ $ _________________________ ___________ ___________ $ _________________________ ___________ ___________ $ _________________________ ___________ ___________ Total: $ _________________________ III. CLASSES WHICH PROVIDE FOR PAYMENT AT CONFIRMATION CLASS PAYMENT AT CONFIRMATION ____________________________________________ _________________ $ _______________ ____________________________________________ _________________ $ _______________ ____________________________________________ _________________ $ _______________ ____________________________________________ _________________ $ _______________

=== Case Management Order ===

UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NEW YORK _________________________________________ In re: Debtor. _________________________________________ Bankruptcy Case No.: Chapter 13 -PRW CHAPTER 13 CASE MANAGEMENT ORDER ―ROCHESTER DIVISION― This District has opted to adopt “Official Form 113”—the National Model Chapter 13 Plan—under Rule 9029 FRBP (“Model Plan”). While the Model Plan includes options that allow debtors to affect secured claims through the plan confirmation process, without seeking the requested relief by stand-alone motion, this Court requires that such relief must be sought by a stand-alone motion. A Chapter 13 Plan that includes attempts to affect secured creditors under § 506 or § 522(f) of the Code, without also serving and filing a stand-alone motion, will not be considered for confirmation. In addition, a Chapter 13 Plan that is not in keeping with the requirements of this Case Management Order will not be considered for confirmation. IT IS ORDERED, that all proposed Chapter 13 Plans filed on or after December 1, 2017, must be in the identical form of “Official Form 113”—the submission of a non-conforming Plan will not be considered for confirmation and may result in the denial of confirmation. IT IS ORDERED, that, if the Chapter 13 Plan is not filed with the Petition, the Debtor must serve a copy of the Chapter 13 Plan, within the time required under Rule 2002(b) FRBP, on all creditors, the Chapter 13 Trustee, and other parties in interest. The Debtor must file proof of service of the Chapter 13 Plan, specifying the date, manner of service, and the names and addresses of all parties upon whom the Plan was served. IT IS ORDERED, that a proposed Chapter 13 Plan must adhere to the following requirements; a non-conforming Chapter 13 Plan will not be considered for confirmation and may result in the denial of confirmation: 1. Model Plan § 3.1 – The Chapter 13 Trustee for the Rochester Division is not a “conduit trustee.” Consequently, a proposal to make payment of post-petition mortgage payments by or through the Trustee is not permitted. This section must provide that all post-petition mortgage payments are to be made by the Debtor directly to the mortgagee or its servicer. 2. Model Plan § 3.2 – All requests to determine the value of a secured claim must be brought by stand-alone motion under 11 U.S.C. § 506. The motion must be made returnable on a date in advance of the hearing on plan confirmation (or returnable at the confirmation hearing if permitted by the Court on request). Motions under § 506 must be filed and served in the manner provided for in Rule 7004 FRBP. A certificate of service must be promptly filed. 3. Model Plan § 3.4 – If a lien is to be avoided, a stand-alone motion must be brought under 11 U.S.C. § 522(f). The motion must be made returnable on a date in advance of the hearing on plan confirmation (or returnable at the confirmation hearing if permitted by the Court on request). Motions under § 522(f) must be filed and served in the manner provided for in Rule 7004 FRBP. A certificate of service must be promptly filed. (Lien avoidance under any other provision of the Bankruptcy Code must be sought by adversary proceeding, as required by Rule 7001(2) FRBP.) 4. Model Plan § 4.2 – Use “TBD” if the amounts are presently unknown. 5. Model Plan § 5.1 – Chapter 13 Plans in the Rochester Division will continue to be “pot plans.” This section must reflect current practice. 6. Model Plan § 7.1 – This section must provide that Property of the Estate will vest in the Debtor upon plan confirmation, although such Property will remain under the jurisdiction of the Court. IT IS ORDERED, that the Debtor must serve a copy of any amendment to the Chapter 13 Plan, within the time specified under Rule 2002(b) FRBP, on all affected creditors. The Debtor must file proof of service of the Amended Chapter 13 Plan, specifying the date, manner of service, and the names and addresses of all parties upon whom the Amended Chapter 13 Plan was served. IT IS ORDERED, that, for confirmed Chapter 13 Plans under which the Debtor is required to make payments directly to a mortgagee or its servicer, the Debtor is required to file an Affidavit, after plan payments are complete, certifying that all such direct payments have been made as required. Such direct payments, often called “payments outside the plan,” are considered by the Court to be “payments under the plan” for purposes of 11 U.S.C. § 1328(a). The failure to file the Affidavit, or the failure to make all required post-petition and post-confirmation direct payments, may result in the closing of the case without entry of a discharge order. Dated: _________________ Rochester, NY _______________________________ Hon. Paul R. Warren United States Bankruptcy Judge 2

=== In re Cox ===

UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NEW YORK ____________________________________________ In re: AMOS E. COX, FOR PUBLICATION CASE NO. 99-23397 Debtors. ____________________________________________ DECISION & ORDER Kenneth Gallant, Esq. Attorney for Debtor 25 East Main Street Suite 304 Rochester, New York 14614 Brian B. Kumiega, Esq. Attorney for Secured Creditor Marvin R. Baum, P.C. Suite 1210, Statler Towers Buffalo, New York 14202 BACKGROUND On November 3, 1999, Amos E. Cox (the “Debtor”) filed a petition initiating a Chapter 13 case. On the Schedules and Statements required to be filed by Section 521 and Rule 1007, the Debtor indicated that: (1) he was the owner of 133 Ellicott Street, Rochester, New York (“Ellicott Street”); (2) he believed Ellicott Street had a current market value of $70,000.00; (3) there was a first mortgage against Ellicott Street in favor of HSBC Mortgage Corporation (USA) (“HSBC”) that had a current balance of $12,501.00 (the “HSBC Mortgage”); and (4) there was a second mortgage on Ellicott Street in favor of Marenna Hall that had a current balance of $40,000.00. On February 24, 2000, the Court entered an Order confirming the Debtor’s Chapter 13 plan (the “Plan”). The Plan provided for: (1) the payment through the Plan of $3,800.00 plus interest to HSBC as a secured creditor, because of arrears due on the HSBC Mortgage; (2) the payment of the balance of the Mortgage to HSBC outside the Plan in accordance with the original mortgage BK. 99-23397 contract; and (3) the Debtor’s unsecured creditors to receive a distribution of one hundred percent of their claims plus a value-added factor of nine percent to meet the “best interests of creditors test,” because of the Debtor’s non-exempt equity in various assets including Ellicott Street. On June 27, 2000, HSBC filed a Motion for Termination of the Automatic Stay (the “Stay Motion”) pursuant to Section 362, which alleged that: (1) the fair market value of Ellicott Street was $58,000.00, based upon the current tax assessment; (2) the balance due on the HSBC Mortgage was $16,156.60; (3) the estimated costs to sell Ellicott Street were $4,060.00; (4) there was equity in Ellicott Street over and above the HSBC Mortgage of $37,783.40; (5) the Debtor had failed to make three post-petition mortgage payments in the amount of $452.38 each, along with late charges, for total post-petition arrears due of $1,411.44; (6) HSBC was suffering immediate and irreparable harm and loss because the failure of the Debtor to pay post-petition mortgage payments, which was diminishing the equity which secured the HSBC Mortgage, would ultimately result in a failure of adequate protection for HSBC’s security interest; and (7) the automatic stay should be terminated so that HSBC could pursue the collection rights and remedies under its Mortgage. On June 29, 2000, the Debtor interposed an Answering Affirmation by his attorney, which admitted that the Debtor had failed to make three post-petition mortgage payments, but requested that he be given thirty days in which to bring all post-petition mortgage payments current. At the hearing on the return date of the Stay Motion, in connection with the request of HSBC that it be awarded reasonable attorneys fees and disbursements in connection with the Motion, the Court inquired whether given: (1) the substantial equity cushion enjoyed by HSBC, in this case in excess of $37,000.00 on its own analysis; and (2) the relatively small amount of post-petition BK. 99-23397 mortgage arrears, HSBC, in accordance with the Court’s policy, had served the Debtor and his attorney with a written notice advising them that if the Debtor failed to cure all post-petition mortgage arrears within a reasonable period of time, a motion for relief from the stay would be filed which would result in substantial additional expenses being incurred by the Debtor. The attorney for HSBC indicated that no such notice had been given to the Debtor because the attorneys for HSBC were unaware of the Court’s oral policy regarding such a notice. The Court indicated that it would issue a Decision & Order in this case to insure that all similarly situated secured creditors would be aware of the policy. On or about July 25, 2000, HSBC submitted a “Conditional Order” which provided that the Debtor would have until August 15, 2000 to cure all post-petition arrears and pay the $350.00 attorneys fees and disbursements incurred by HSBC in connection with the Stay Motion. DISCUSSION Before each hearing on the confirmation of a Chapter 13 plan, the Court discusses various matters with the Chapter 13 debtors, including the necessity that they keep current on all post- petition mortgage payments when their Chapter 13 plan does not provide for the payment of the mortgage in full within the Plan, but provides that it will be paid outside the Plan in accordance with the original mortgage contract. With this clear warning, which reinforces the same message given to the debtors by their attorneys and the Chapter 13 Trustee, that debtors must pay their mortgages on time, to the correct place, in the correct amount, and at all times have proof for the Court that they did this, this Court understands why mortgage holders, who have little or no equity in a mortgaged premises and are being paid pre-petition mortgage arrears through a Chapter 13 plan, are inclined BK. 99-23397 to file a motion for relief from the automatic stay soon after a debtor fails to make post-petition mortgage payments. These mortgage holders have a genuine concern about adequate protection. However, when, as in this case, there is: (1) significant equity over and above the mortgage in question, even if there are junior mortgages which result in a debtor having no overall equity; and (2) the amount of the post-petition missed payments are relatively small when compared with the equity cushion, this Court does not believe that a mortgage holder should bring an immediate motion for relief from the automatic stay. The substantial equity cushion provides sufficient adequate protection, even though the debtor is not performing as required by the plan and the Court, to give the debtor one last notice of default. Therefore, this Court expects in such circumstances, in order to avoid additional substantial costs and expenses for a debtor, that when there is an equity cushion in excess of $10,000.00, a mortgage creditor or its attorneys, will give the debtor and the debtor’s attorney a written notice which will advise them that unless all post-petition mortgage payments are brought current within ten days from receipt of the notice,1 the mortgage holder will incur the additional expense of preparing and filing a motion to for relief from the automatic stay, which will result in costs and expenses being charged to the debtor. If such an oversecured mortgage creditor fails to give the required ten-day written notice, this Court will not award reasonable attorney fees and expenses in connection with any stay motion. CONCLUSION 1 mailed. Notices mailed by regular mail and not returned will be deemed to have been received two days after BK. 99-23397 In connection with this Decision & Order, the Court will sign the Conditional Order submitted by HSBC, because the Debtor has not objected to it and it would not be fair to apply its previous oral policy in these circumstances, because HSBC was unaware of the policy. IT IS SO ORDERED. ____________/s/_________________ HON. JOHN C. NINFO, II CHIEF U.S. BANKRUPTCY JUDGE Dated: August 7, 2000 Page 5

=== See In re Gill ===

UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NEW YORK _________________________________________ In Re: Deanna J. Gill, Debtor. _________________________________________ Case No. 14-21173 Chapter 7 DECISION AND ORDER DENYING MOTION TO REOPEN CHAPTER 7 CASE PAUL R. WARREN, United States Bankruptcy Judge Before the Court is a motion by Deanna J. Gill (“Debtor”) seeking to reopen her Chapter 7 case, in order to bring a contested matter to seek sanctions against ESL Federal Credit Union (“ESL”) for an alleged violation of her discharge injunction (ECF No. 29). The alleged “patent violation” of the discharge injunction under 11 U.S.C. § 524(a)(2) consists of a single preforeclosure notice issued by ESL—a secured creditor with a mortgage lien on real property that is the Debtor’s principal residence (ECF No. 29 ¶ 16 ). The offending notice contains the exact language that is statutorily mandated by New York Real Property Actions and Proceedings Law § 1304 (“RPAPL”) (ECF No. 29, Exhibit B ¶ 16 and Exhibit D). The discharge injunction does not prevent a secured creditor from enforcing its mortgage lien in rem once the stay terminates—and, under New York law, a foreclosure action against a mortgagor’s principal residence requires a preforeclosure notice in compliance with RPAPL § 1304. The New York preforeclosure notice is not a demand for payment, but an informational foreclosure avoidance notice. The Debtor has not demonstrated cause to reopen under 11 U.S.C. § 350(b) because she would not prevail on her proposed sanctions claim if her Chapter 7 case was reopened. As a result, the Debtor’s motion to reopen the closed case is DENIED. I. JURISDICTION The Court has jurisdiction of this matter under 28 U.S.C. §§ 157(a), 157(b)(1) and 1334. This is a core proceeding under 28 U.S.C. § 157(b)(1). This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Rule 7052 FRBP. II. QUESTIONS PRESENTED The first issue is whether the Debtor has demonstrated cause, under 11 U.S.C. § 350(b), for reopening her closed Chapter 7 case. The second question—necessarily arising out of factors to be considered in resolving the first question—is whether the delivery of the statutorily mandated preforeclosure notice under New York RPAPL § 1304 by the lender of a home loan, secured by a mortgage lien on the Debtor’s principal residence, can serve as the basis to award sanctions against the mortgagee for a violation of the discharge injunction arising from 11 U.S.C. § 524(a). The answer to both questions is no. III. FACTS The Debtor filed a voluntary petition for Chapter 7 relief on September 18, 2014 (ECF No. 1). Schedule A lists real property located at 274 Briarwood Lane, Scottsville, New York as her only real property (ECF No. 1, Schedule A). The Debtor listed a value of $112,000 for the property, subject to two mortgage liens held by ESL, with combined principal balances of over $95,000 (ECF No. 1, Schedules A and D; ECF No. 35, Exhibit A ¶ 2 and attachments). In the Statement of Intention, filed with the petition, the Debtor listed both ESL mortgages and indicated her intention to reaffirm both loans secured by those 2 mortgages (ECF No. 1, Official Form 8 at 29). The Debtor did not reaffirm or attempt to reaffirm the ESL debts, contrary to her stated intentions (ECF No. 35, Exhibit A ¶ 12). The Debtor continues to occupy the property as her principal residence (ECF No. 36). However, she admits that she has not made any mortgage payment to ESL since October 2014 (ECF No. 40). On October 28, 2014, the Chapter 7 Trustee filed a Report of No Distribution, commonly referred to as a “No Asset Report” (ECF No. 8). On January 6, 2015, the Court entered an Order of Discharge (ECF No. 16).1 A Final Decree was entered by the Court and the bankruptcy case was closed on February 6, 2015 (ECF No. 18). Later that same day, but after the case was closed, counsel for the Debtor filed a motion seeking sanctions for an alleged violation of the discharge injunction (ECF No. 19). The alleged violation consisted of a notice from ESL to the Debtor, dated January 22, 2015, and addressed to her residence (ECF No. 29, Exhibit D). The first paragraph of the notice stated: “As of 1/22/2015, your home loan is 32 days in default. Under New York State law, we are required to send you this notice to inform you that you are at risk of losing your home. You can cure this default by making payment of $4,534.12 by 02/06/2015” (Id.). Although not provided to the Court, the notice included an attached list of government-approved housing counseling agencies, as well as contact information for the New York State Department of Financial Services (Id.). The Debtor contacted her attorney immediately upon receiving the ESL notice (ECF No. 29 at 15). Because the case had been closed prior to filing the sanctions motion, the Clerk of Court notified counsel that a motion to reopen the case was required before the Court would consider the sanctions 1 Entry of the discharge order was delayed because the Debtor brought an earlier unrelated sanction motion against ESL, alleging a violation of the automatic stay in connection with a notice sent by ESL during the pendency of the case. The parties resolved that matter without the Court’s involvement. The only relevant notice at issue in the motion before the Court is the letter dated January 22, 2015 (ECF No. 29, Exhibit D). 3 motion (ECF No. 21). Counsel filed an ex parte motion to reopen the bankruptcy case (ECF No. 22). At the Court’s direction, an amended motion was filed, on notice to ESL (ECF No. 29).2 ESL filed opposition to the motion to reopen, arguing that the Debtor had failed to demonstrate cause and that no purpose would be served by granting the motion to reopen because ESL’s notice—mandated by New York RPAPL § 1304(1) and permitted by logical extension of 11 U.S.C. § 524(j)—could not serve as the basis to grant sanctions relief in favor of the Debtor (ECF No. 35). The Court heard initial oral argument on the Debtor’s motion on March 19, 2015. The Debtor argued—without pointing to any legal authority—that the Court should find that New York RPAPL § 1304(1) was an improper impingement on 11 U.S.C. § 524(a)(2). Alternatively, counsel argued that ESL, or any lender with a home loan secured by a debtor’s principal residence located in New York, should simply delete the entire first paragraph of the legislatively mandated notice under New York RPAPL § 1304(1). Counsel did concede that the Debtor had failed to make any mortgage payments to ESL since October 2014, that she did not reaffirm the debt, that she had no intention of making any further payments on the mortgage, that the Debtor continued to reside at the property, and that ESL had the right to foreclose its mortgage (ECF No. 40, Mar. 26, 2015 Hearing). ESL observed that it was statutorily required, as a mandatory precondition to commencing a foreclosure action on the Debtor’s 2 The motion was originally brought as an ex parte application, with notice provided only to the former Chapter 7 Trustee and the U.S. Trustee (ECF No. 22). The Court required the Debtor to serve an amended motion, on notice to the party against whom relief would be sought, under Rules 5010 and 9014 FRBP, to ensure that party had reasonable notice and an opportunity to be heard on the threshold issue of whether “cause” to reopen exists. Where a motion to reopen a closed bankruptcy case is brought, the Court expects the motion to be brought on notice to any party against whom affirmative relief will be sought. Fundamental fairness and due process are not well-served if the issue of cause under 11 U.S.C. § 350(b) is addressed in a vacuum. 4 principal residence, to send the notice under RPAPL § 1304. The motion was adjourned to March 26, 2015, to afford counsel an opportunity to further brief the issue (ECF No. 36). On March 23, 2015, ESL submitted a supplemental memorandum of law, citing authority to support its position that in order to foreclose its mortgage on the property, it was statutorily obligated to comply with RPAPL § 1304 (ECF No. 37). That same day, the Debtor submitted a memorandum of law, by which the Debtor now took the position that the ESL preforeclosure notice should have included additional bankruptcy-disclaimer language, without which the Debtor asserted the statutorily mandated RPAPL § 1304 notice was per se sanctionable as an improper demand for payment of a discharged debt (ECF No. 38). On March 26, 2015, the Court heard final oral argument from both parties (ECF No. 40). Prior to the hearing, ESL submitted a second memorandum of law, responding to the Debtor’s memorandum of law (ECF No. 39). At the conclusion of the hearing, the Court set April 6, 2015 as the date for final submissions by the parties on the legal issues (ECF No. 40). The Debtor submitted a supplemental memorandum of law (ECF No. 41). ESL filed the affidavit of Jeremy Newman, its associate general counsel (ECF No. 42) and a third supplemental memorandum of law (ECF No. 43). Debtor’s counsel filed a letter, criticizing the Newman affidavit, but adding nothing of substance (ECF No. 44). The submissions are now complete and the issues are ripe for determination. IV. ARGUMENTS The Debtor contends that, despite having been notified of the Debtor’s discharge, ESL’s correspondence was an attempt to collect a discharged debt in “patent violation” of 11 U.S.C. § 524(a)(2) (ECF No. 29 ¶ 16 ). At oral argument, the Debtor conceded that the offensive ESL notice precisely 5 tracked the statutory language mandated by RPAPL § 1304 (ECF No. 38 at 3). The Debtor also conceded that ESL was required to comply with RPAPL § 1304 as a condition precedent to a foreclosure action (Id. at 3, 8). However, the Debtor argues that RPAPL § 1304 does not prohibit the addition of bankruptcy- disclaimer language (Id. at 5). The Debtor argues that such language would bring the notice mandated by state law in compliance with the Bankruptcy Code (Id. at 15-16). The Debtor further contends that—even though not required by the prescribed statutory notice language—the ESL notice was also infirmed because it did not indicate that the 90-day standstill period under RPAPL § 1304 did not apply because the Debtor had obtained an Order for Relief (Id.). The Debtor argues that the issuance of the statutorily mandated preforeclosure notice is a per se violation of the discharge injunction because the notice did not specifically state that ESL was not attempting to collect the underlying debt as a personal liability of the Debtor (ECF No. 37). ESL argues that no purpose would be served in reopening the case (ECF Nos. 35, 39). As a home loan lender, ESL was statutorily required by RPAPL § 1304(1) to send the notice as a precondition to exercising its right to commence a foreclosure action (ECF No. 35). Therefore, the Debtor’s anticipated sanctions motion could not serve as the basis to grant relief, because ESL sent the notice in strict compliance with the New York foreclosure statute (Id.). ESL contends that—in any event—the statutory notice is merely informational, providing a consumer-mortgagor with an opportunity to cure a default on a mortgage to avoid commencement of a foreclosure action (ECF No. 40). ESL argues that RPAPL § 1304 has been strictly construed by the New York Courts (ECF No. 39 at 3). ESL observes that, contrary to the Debtor’s view, RPAPL § 1304(1) does not include a requirement for bankruptcy discharge disclaimer language (Id. at 2). Absent proof of strict compliance with RPAPL § 1304, ESL contends that its eventual foreclosure proceeding would be summarily dismissed (Id.). In addition, ESL argues that Congress codified a “safe harbor” for residential mortgage lenders, by permitting communications between 6 residential mortgagees and mortgagor-debtors after discharge, in enacting 11 U.S.C. § 524(j) as part of BAPCPA (ECF Nos. 35, 39). In ESL’s view, the safe harbor provision allows residential mortgage lenders to send statements in the ordinary course for presently due mortgage obligations, secured by a debtor’s principal residence, instead of proceeding in rem (ECF Nos. 35, 39). ESL argues that the Debtor has not demonstrated cause to reopen her case, because the offending notice complied fully with the mandatory preforeclosure requirements established by the New York Legislature under RPAPL § 1304(1). Therefore, the RPAPL § 1304(1) notice cannot serve as the basis for a claimed violation of the discharge injunction (ECF Nos. 35, 43). V. CONCLUSIONS OF LAW A. The Debtor Has Failed to Demonstrate “Cause” to Reopen. The Bankruptcy Code vests bankruptcy courts with discretion to determine whether to reopen a closed case “to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b) (emphasis added); see also Rule 5010 FRBP. In determining whether “cause” exists to reopen a closed case, courts “may consider numerous factors including equitable concerns, and ought to emphasize substance over technical considerations.” In re Wiggins, No. 12-13341, 2013 Bankr. LEXIS 3587, at *3 (Bankr. S.D.N.Y. Aug. 29, 2013) (quoting In re Wilson, 492 B.R. 691, 695 (Bankr. S.D.N.Y. 2013 ; see also In re Emmerling, 223 B.R. 860, 864 (B.A.P. 2d Cir. 1997) (discussing cause to reopen for equitable concerns). The factors for the Court to consider include: (1) the length of time that the case was closed; (2) whether a nonbankruptcy forum has jurisdiction to determine the issue which is the basis for reopening the case; 7 (3) whether prior litigation in the bankruptcy court determined that a state court would be the appropriate forum; (4) whether any parties would suffer prejudice should the court grant or deny the motion to reopen; (5) the extent of the benefit to the debtor by reopening; and (6) whether it is clear at the outset that no relief would be forthcoming to the debtor by granting the motion to reopen. Wilson, 492 B.R. at 695. Here, the Court finds that the last factor is determinative—if the Debtor would not be entitled to any relief, cause to reopen is absent. See In re Chalasani, 92 F.3d 1300, 1307 (2d Cir. 1996) (denying a motion to reopen where the relief sought after reopening would not be granted, therefore rendering the act of reopening meaningless); see also In re Pennington-Thurman, 499 B.R. 329, 332 (B.A.P. 8th Cir. 2013) (holding that it is appropriate for the Court to examine the merits of a proposed motion in considering a motion to reopen, and it is not an abuse of discretion to deny the motion to reopen where the proposed motion is lacking in merit); Wiggins, 2013 Bankr. LEXIS 3587, at *4. The Court necessarily turns its attention to the merits of the Debtor’s proposed action to seek sanctions against ESL for an alleged violation of the discharge injunction under 11 U.S.C. § 524(a)(2). B. The Discharge Injunction Was Not Violated by the RPAPL § 1304(1) Preforeclosure Notice. The ultimate question for the Court is whether delivery of a preforeclosure notice by a lender of a home loan, secured by a mortgage on a Debtor’s principal residence located in New York State—in full compliance with the statutory mandate under New York RPAPL § 1304—can serve as the basis to award sanctions against the mortgagee for a claimed violation of the discharge injunction arising from 11 U.S.C. § 524(a). A bankruptcy discharge “operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a 8 personal liability of the debtor, whether or not discharge of such debt is waived.” 11 U.S.C. § 524(a)(2) (emphasis added). The discharge injunction protects a fundamental policy of the Bankruptcy Code— providing honest but unfortunate debtors with a fresh start by being relieved of personal liability for their discharged debts. See Green v. Welsh, 956 F.2d 30, 33 (2d Cir. 1992); see also In re Lemieux, 520 B.R. 361, 364 (Bankr. D. Mass 2014); In re Nassoko, 405 B.R. 515, 521-22 (Bankr. S.D.N.Y. 2009). However, the bankruptcy discharge extinguishes only “the personal liability of the debtor.” Johnson v. Home State Bank, 501 U.S. 78, 83 (1991) (holding that while the bankruptcy discharge extinguishes one “mode of enforcing a claim—namely, an action against the debtor in personam,” it leaves “intact another—namely, an action against the debtor in rem”). A secured creditor’s “right to foreclose on the mortgage survives or passes through the bankruptcy” and remains enforceable under state law. Johnson, 501 U.S. at 83; see also Pennington-Thurman, 499 B.R. at 332; Mayton v. Sears, Roebuck & Co., 208 B.R. 61, 66-67 (B.A.P. 9th Cir. 1997); In re Jones, No. 08-05439, 2009 Bankr. LEXIS 4316, at *7-9 (Bankr. S.D. Ind. Nov. 25, 2009); Drew v. Chase Manhattan Bank, N.A., 185 B.R. 139, 141-42 (Bankr. S.D.N.Y. 1995). The discharge injunction does not prohibit every communication between a creditor and debtor—“only those designed ‘to collect, recover or offset any such debt as a personal liability of the debtor.’” In re Whitaker, No. 09-50301, 2013 Bankr. LEXIS 2328, at *23 (Bankr. E.D. Tenn. Nov. 25, 2013); In re Brown, 481 B.R. 351, 358 n.10 (Bankr. W.D. Pa. 2012); see also 11 U.S.C. § 524(a)(2). The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), added Section 524(j) to the Bankruptcy Code to statutorily recognize the “ride through option” with respect to mortgage liens on real property.3 Bell, 2014 Bankr. LEXIS 4717, at *15 n.5 (citing In re Caraballo, 386 3 Courts have considered case law determining violations of the automatic stay under 11 U.S.C. § 362(a) as instructive in considering alleged violations of the discharge injunction under 11 U.S.C. § 524(a), given the statutory similarities. As was aptly observed by Judge Davis, “[11 U.S.C.] § 524 is the post-discharge analogue of [11 U.S.C.] § 362.” In re Bell, No. 14-60510, 2014 Bankr. LEXIS 4717, 9 B.R. 398, 401-02 (Bankr. D. Conn. 2008 ; Whitaker, 2013 Bankr. LEXIS 2328, at *27. Section 524(j) “codif[ied] the so-called ‘ride-through’ option for distressed debtors who, with creditor assent, continue, post discharge, to pay their mortgages.” In re Sosa, 443 B.R. 263, 268 (Bankr. D.R.I. 2011); see also Whitaker, 2013 Bankr. LEXIS 2328, at *27. Despite the discharge injunction, under 11 U.S.C. § 524(j), a mortgagee with a lien on a debtor’s principal residence is permitted to send statements to a debtor in the ordinary course of business, instead of seeking in rem relief, permitting the debtor to pay the secured debt and keep the property. Bell, 2014 Bankr. LEXIS 4717, at *14; Whitaker, 2013 Bankr. LEXIS 2328, at *23; see also In re Manning, 505 B.R. 383, 387 (Bankr. D.N.H. 2014) (holding that a lender’s requests that debtor become current and sign a reaffirmation agreement fall within the safe harbor under 11 U.S.C. § 524(j . The existence of the safe harbor provision, codified in 11 U.S.C. § 524(j), underscores the logical difficulty with the Debtor’s position—that a mortgagee’s act of sending a statutorily required preforeclosure informational cure notice is per se sanctionable under 11 U.S.C. § 524(a)(2), but an ordinary course statement sent by the same mortgagee, with a lien on a discharged debtor’s principal residence, is permissible under 11 U.S.C. § 524(j). Here, as the mortgagee with a lien secured by the Debtor’s principal residence, ESL would be protected by 11 U.S.C. § 524(j) if it elected to send a statement instead of proceeding in rem.4 See Manning, 505 B.R. at 388. Here, because the Debtor at *14 n.4 (Bankr. N.D.N.Y. Nov. 13, 2014) (Davis, J.) (citing In re Fucilo, No. 00-36261, 2002 Bankr. LEXIS 475, at *39 (Bankr. S.D.N.Y. Jan. 24, 2002 . 4 Although § 524(j) provides a safe harbor for mortgagees’ “act[s] in the ordinary course of business,” mortgagees must be careful to comply with the exact terms of § 524 (j). It has been held that a post-discharge preforeclosure complaint that includes a request for in personam relief is sanctionable. See In re Jones, No. 09-21945, 2012 Bankr. LEXIS 5156 (Bankr. E.D. Ky. Nov. 2, 2012) (holding that the mortgagee’s post-petition foreclosure complaint violated the discharge injunction by seeking a personal judgment against the debtor). Similarly, it has been held that a post-discharge statement is actionable 10 admits that she has no intention of keeping the property and admits that she has not made a mortgage payment since at least October 2014, ESL has the right to proceed with a foreclosure action—and that foreclosure action must comply with New York law in all respects. See Wiggins, 2013 Bankr. LEXIS 3587, at *6 (holding that a lender is not prevented after discharge from foreclosing on a lien that remains in default); see also Manning, 505 B.R. at 388 (holding that the discharge injunction “does not enjoin a secured creditor from recovering on valid prepetition liens, which, unless modified or avoided, ride through bankruptcy unaffected and are enforceable in accordance with state law”). It is New York law, not federal bankruptcy law, that governs the particular manner in which a mortgagee with a lien on real property in New York is to proceed with a foreclosure action. Generally, property interests and rights are established by state law, not bankruptcy law, absent an overriding bankruptcy purpose. Butner v. United States, 440 U.S. 48, 55 (1979). “The general welfare of society is involved in the security of the titles to real estate,” and the very “power to ensure that security ‘inheres in the very nature of [state] government.’” BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994). In 2010, the New York Legislature enacted RPAPL § 1304, titled the Foreclosure Prevention, Tenant Protection and Property Maintenance Act of 2009, as a consumer protection statute “in response to the mortgage foreclosure crisis.” Kearney v. Kearney, 42 Misc. 3d 360, 366-67 (N.Y. Sup. Ct. Monroe Cnty. 2013) (Dollinger, J.). RPAPL § 1304(1) requires that home loan lenders, with a mortgage lien on a borrower’s principal residence, serve a specific written cure notice as a “condition precedent” to the where the mortgagee goes beyond the bounds created by 11 U.S.C. § 524(j). See In re Tucker, No. 12- 71910, 2015 Bankr. LEXIS 614 (Bankr. W.D. Va. Feb. 27, 2015) (finding a violation of the discharge injunction where the statement included an acceleration clause and demanded payment immediately); 4 Collier on Bankruptcy ¶ 524.09 (16th ed.). 11 commencement of a foreclosure action.5 RPAPL § 1304(1); Kearney, 42 Misc. 3d at 367; see also U.S. v. McDermott, No. 11-CV-6232 CJS, 2012 U.S. Dist. LEXIS 31020, at *2 (W.D.N.Y. Mar. 6, 2012) (Siragusa, J). The overwhelming majority of New York Courts have held that the failure to comply with RPAPL § 1304 “permits—if not requires—dismissal of the [foreclosure] action.” Kearney, 42 Misc. 3d at 368; see Deutsche Bank Nat’l. Trust Co. v. Spanos, 102 A.D.3d 909 (N.Y. App. Div. 2d Dept. 2013); Cadelrock Joint Venture, L.P. v. Callender, 41 Misc. 3d 903 (N.Y. Sup. Ct. Kings Cnty. 2013); Aurora Loan Servs., LLC. v. Weisblum, 85 A.D.3d 95 (N.Y. App. Div. 2d Dept. 2011); see also McDermott, 2012 U.S. Dist. LEXIS 31020, at *2. Specifically, New York RPAPL § 1304(1) requires that mortgagees with loans covered by the statute must provide the borrower with a 90-day “cure notice” to inform the borrower of options available to avoid foreclosure. Here, the Debtor candidly concedes that ESL’s mortgage is covered by RPAPL § 1304. The statutorily mandated notice must include the words “[u]nder New York State law, we are required to send you this notice to inform you that you are at risk of losing your home. You can cure this default by making a payment of $____ by ____.” RPAPL § 1304(1) (emphasis added). Although RPAPL § 1304(3) provides a limited exception when a “borrower has filed an application for the adjustment of debts . . . or an order for relief from the payment of debts,” the plain language of that exception only serves to eliminate the 90-day notice period; it does not relieve a mortgagee of its obligation to comply with the other mandatory provisions of RPAPL § 1304. See Bank of America v. Maharaj, No. 5804-2010, 2010 N.Y. Misc. LEXIS 4634, at *2 (N.Y. Sup. Ct. Suffolk Cnty. Sept. 21, 5 RPAPL § 1304(1) defines a “home loan” as an “open-end credit plan, other than a reverse mortgage transaction, in which: (i) the borrower is a natural person; (ii) the debt is incurred by the borrower primarily for personal, family, or household purposes; (iii) the loan is secured by a mortgage or deed of trust on real estate; and (iv) the property is located in this state.” New York RPAPL § 1304(1). 12 2010); GMAC Mortg. LLC v. Munoz, No. 2103-2010, 2010 N.Y. Misc. LEXIS 4398, at *4-5 (N.Y. Sup. Ct. Suffolk Cnty. Sept. 9, 2010); Butler Capital Corp. v. Cannistra, 26 Misc. 3d 598, 607 (N.Y. Sup. Ct. Suffolk Cnty. 2009). In Aurora Loan Services, the Appellate Division, Second Department explained the purpose of the notice requirement imposed by RPAPL § 1304: Since RPAPL § 1304 notice must be sent at least 90 days prior to the commencement of an anticipated foreclosure action, its manifest purpose is to aid the homeowner in an attempt to avoid litigation. The legislative history noted a typical lack of communication between distressed homeowners and their lenders prior to the commencement of litigation, leading The bill sponsor sought “to bridge that to needless foreclosure proceedings. communication gap in order to facilitate a resolution that avoids foreclosure” by providing a preforeclosure notice advising the borrower of “housing counseling services available in the borrower’s area” and an “additional period of time . . . to work on a resolution.” Aurora Loan Servs., 85 A.D.3d at 106l (citing Senate Introducer Mem. in Support, Bill Jacket, L 2008, ch. 472, at 10) (emphasis added). The statute not only allows the creditor to move forward with a foreclosure action, but also affords the borrower the choice to cure the default, avoid foreclosure, and retain the home. See id. at 103 (stating that the “specific, mandatory language [is] in keeping with the underlying purpose of HEPTA to afford greater protections to homeowners confronted with foreclosure”). Here, the Debtor admits that ESL has the right to foreclose its mortgage on her principal residence. The Debtor admits that she has been in default under the mortgage for over six months. The Debtor admits that she has no intention of paying ESL on account of the mortgage. The Debtor admits that ESL’s notice used the precise language required by RPAPL § 1304. The Debtor argues, however, that because the legislatively mandated notice includes the words “can . . . make payment” and does not contain words indicating that the notice is not an attempt to proceed with collection actions against the Debtor personally, any mortgagee sending the required RPAPL § 1304(1) preforeclosure notice to a 13 mortgagor, who has received a discharge in bankruptcy, commits a per se violation of the discharge injunction. The Debtor attempts to find support for her argument by citing a line of cases involving notices sent to debtors by mortgagees. See e.g., In re Tucker, 516 B.R. 340 (Bankr. W.D. Va. 2014); In re Mele, 486 B.R. 546 (Bankr. N.D. Ga. 2013); In re Grihalva, No. 11-26893, 2013 Bankr. LEXIS 4057 (Bankr. D. Nev. Sept. 3, 2013); Pearson v. Bank of America, No. 3:12-cv-00013, 2012 U.S. Dist. LEXIS 94850 (W.D. Va. July 10, 2012); Brown, 481 B.R. at 362; In re Curtis, 332 B.R. 470 (Bankr. D. Mass 2005). Notably, none of the cases cited by the Debtor involve statutorily mandated preforeclosure notices. A common factor in the decisions that found the particular correspondence violated 11 U.S.C. § 524(a)(2) is that the correspondence included “a clear demand for payment, accompanied by coercion in the form of a threatened action or some other consequence for nonpayment or harassment to induce the debtor to pay.” See Bell, 2014 Bankr. LEXIS 4717, at *7 (citing In re Connor, 366 B.R. 133, 138 (Bankr. D. Haw. 2007 ; see also Curtis, 332 B.R. at 484-85. Courts have, however, distinguished situations where a lender is required by state law to send a preforeclosure notice from other forms of communications. See Mele, 486 B.R. at 558 (acknowledging that “in order to pursue in rem rights, rights that are expressly preserved and recognized in § 524, [the creditor] is required to provide certain notices and information to [the debtor]”); see also Pennington-Thurman, 499 B.R. at 332 (holding that the bankruptcy court correctly found no violation of the discharge injunction, because the lender was required by state law to give a “cure notice” as a precondition to commencing a foreclosure action, and noting that 11 U.S.C. § 524(j) permitted other communications between a mortgagee and mortgagor-debtor following entry of the discharge order, if specified statutory elements were present); Bell, 2014 Bankr. LEXIS 4717, at *13 (acknowledging the requirement that mortgagees send statutorily prescribed notices to mortgagors prior to all foreclosures in New York). 14 The legislative purpose of RPAPL § 1304 is to require mortgagees to inform borrowers of the ability to cure a default under a home loan, before commencing a foreclosure action. Kearney, 42 Misc. 3d at 376. The notice is both informational and statutorily required. See Bell, 2014 Bankr. LEXIS 4717, at *13; see also Brown, 481 B.R. at 350. The Debtor invites the Court to find that the notice—mandated by the New York State Legislature under RPAPL § 1304(1)—violates the federal bankruptcy discharge injunction because it does not contain language indicating that the notice is not an attempt to enforce the obligation against the borrower personally. The Court declines that invitation. Including so-called “disclaimer language” is not the magic pill that the Debtor would have this Court prescribe. Courts have found that where there is evidence of coercion or harassment, disclaimer language included in a communication is ineffective in insulating a mortgagee. See Bell, 2014 Bankr. LEXIS 4717, at *13. On the other hand, it has been held that the absence of disclaimer language in a communication to a debtor is not a per se violation of the discharge injunction, where there is no evidence of coercion or harassment. See Whitaker, 2013 Bankr. LEXIS 2328, at *25. The Debtor is correct in one respect: the cases discussing particular disclaimer noticing language focused on the lender’s conduct—a fact specific inquiry. However, the notices before the courts in the cases cited by the Debtor did not involve statutorily prescribed language as a precondition to seeking relief in rem.6 New York Courts routinely dismiss foreclosure proceedings where a mortgage lender does not provide notice in strict compliance with the RPAPL § 1304. Kearney, 42 Misc. 3d at 368; see also 6 Perhaps the fault here is not with the precise words and procedures mandated by the New York Legislature in enacting RPAPL § 1301 et seq. Rather, it may be that the Debtors’ Bar needs to counsel clients who have home loans secured by their principal residence—before they file for bankruptcy relief and again after they receive a bankruptcy discharge—to help them understand and anticipate both the types of notices permitted by 11 U.S.C. § 524(j) and those mandated by New York RPAPL § 1304, despite the discharge injunction. Launching a full-scale attack on New York RPAPL § 1304 in federal court is not an effective use of limited judicial resources. 15 Deutsche Bank, 102 A.D.3d at 909; Aurora Loan Servs., 85 A.D.3d at 95; Callender, 41 Misc. 3d at 911. The requirements of RPAPL § 1301 were carefully crafted by the Legislature in an effort to protect consumers—by providing homeowners with information and options to avoid losing their homes to foreclosure—and by forcing lenders to communicate with borrowers before commencing a foreclosure action. The notice is not coercive and cannot fairly be read as threatening to proceed against the Debtor personally. The notice is also, and most importantly, a legislatively mandated precondition to commencing a foreclosure action in New York. Because it is clear at the outset that this Court would not accord the Debtor the sanction relief ultimately sought if this case were reopened, the Court finds that the Debtor has not demonstrated cause necessary to reopen under 11 U.S.C. § 350(b). See Pennington- Thurman, 499 B.R. at 332; see also Whitaker, 2013 Bankr. LEXIS 2328, at *23; Aurora Loan Servs., 85 A.D.3d at 106l. No purpose would be served if this case was reopened. The Debtor’s motion to reopen is DENIED, under 11 U.S.C. § 350(b). VI. CONCLUSION The Court finds that, on the record before it, the Debtor would not be entitled to relief if she was permitted to bring a motion against ESL, requesting sanctions for an alleged violation of the discharge injunction under 11 U.S.C. § 524(a)(2). The Court finds that the Debtor has failed to demonstrate cause to reopen her closed case under 11 U.S.C. § 350(b). The Debtor’s motion to reopen this case is DENIED. IT IS SO ORDERED. DATED: April 16, 2015 Rochester, New York __________________/s/__________________ HON. PAUL R. WARREN United States Bankruptcy Judge 16

=== MOTION SCHEDULING - JUDGE WARREN ===

MOTION SCHEDULING - JUDGE WARREN NOTE: COMPLIANCE WITH NEGATIVE NOTICE PROCEDURES IS REQUIRED. Motions are held on designated Thursdays, at times (below) based on motion type. Counsel should contact the Courtroom Deputy [585-613-4214] to schedule a discrete date/time for matters that may require extended argument or Court attention. ROCHESTER: 10:00 a.m. • Motion Types • Chapter 7 Motions • Chapter 13 Motions • Stay Relief Motions • Claim Objections • 522(f) & Sale Motions + "Negative Notice Motions" (related to above, if opposed) 10:45 a.m. • Motion Types • Chapter 11 Motions • Chapter 12 Motions • U.S. Trustee Motions • Adversary Proceedings Motions + "Negative Notice Motions" (related to above, if opposed) BUFFALO: 1:30 p.m. • Motion Types • U.S. Trustee Motions • Chapter 11 Motions • Adversary Proceeding Motions • Chapter 7 Trustee Motions • Chapter 13 Trustee Motions • Chapter 12 Motions • Stay Relief Motions • Claim Objections • 522(f) & Sale Motions + "Negative Notice Motions" (related to above, if opposed) (Revised Sept. 2025)

=== NEGATIVE NOTICE PROCEDURES ===

UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NEW YORK In re: NEGATIVE NOTICE PROCEDURES FOR MOTIONS BEFORE JUDGE WARREN ADMINISTRATIVE ORDER This Administrative Order supersedes the “Amended Standing Order” dated December 18, 2009, and each and every Standing Order referenced therein, so as to: (1) Eliminate the use of the phrase “Default Procedures” and adopt the more commonly used phrase “Negative Notice Procedures” to more accurately describe motion practice before Judge Warren. (2) Adopt revised and clarified “Negative Notice Procedures” to eliminate the former reference to “3 business days,” and adopt the more precise and measurable requirement that written opposition to a motion must be served and filed not less than 72 hours prior to the scheduled date and time of the hearing on a motion. (3) Adopt a revised “Negative Notice Statement,” to clarify the requirements for serving and filing papers in opposition to a motion. The Negative Notice Statement must be prominently displayed on the Notice of Motion, for all affected motion types, in all cases assigned to Judge Warren. The revised “Negative Notice Statement” and revised “Negative Notice Procedures” accompany this Administrative Order. The Negative Notice Procedures govern motions filed on or after January 1, 2021, in all cases assigned to Judge Warren. SO ORDERED. DATED: December 21, 2020 Rochester, New York /s/ HON. PAUL R. WARREN United States Bankruptcy Judge Negative Notice Statement The following Negative Notice Statement, prominently displayed in bold print, must be included on the Notice of Motion for all motions brought under the Negative Notice Procedures: UNDER THE ADMINISTRATIVE ORDER DATED DECEMBER 21, 2020, REVISING THE NEGATIVE NOTICE PROCEDURES FOR MOTIONS BEFORE JUDGE WARREN: IF A PARTY REPRESENTED BY COUNSEL INTENDS TO OPPOSE THIS MOTION, WRITTEN OPPOSITION TO THE MOTION MUST BE SERVED AND FILED ELECTRONICALLY IN CM/ECF NOT LESS THAN 72 HOURS PRIOR TO THE SCHEDULED DATE AND TIME OF THE HEARING ON THE MOTION (NOTWITHSTANDING RULE 9006(a) FRBP). IN CASES UNDER CHAPTERS 7, 12 AND 13, YOU MUST SERVE THE OPPOSING PAPERS ON: THE MOVANT AND MOVANT’S COUNSEL, THE DEBTOR AND DEBTOR’S COUNSEL (IF NOT THE MOVANT), AND THE TRUSTEE. IN CASES UNDER CHAPTER 11, THE OPPOSING PAPERS MUST ALSO BE SERVED ON THE CREDITORS’ COMMITTEE AND ITS ATTORNEY, OR IF THERE IS NO COMMITTEE, THE 20 LARGEST UNSECURED CREDITORS, AND THE UNITED STATES TRUSTEE. IN THE EVENT THAT WRITTEN OPPOSITION IS NOT TIMELY SERVED AND FILED, NO HEARING WILL BE HELD ON THE MOTION; THE COURT WILL CONSIDER THE MOTION TO BE UNOPPOSED. (rev. 12/21/2020) NEGATIVE NOTICE PROCEDURES FOR MOTIONS BEFORE JUDGE WARREN (Note: Even when no opposition is filed, the Court will review each motion to determine whether it is appropriate to grant the relief requested.) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS § 362(d) - Motion for stay relief Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapters 7, 12 and 13 Debtor, Debtor’s attorney and trustee. filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. Chapter 11 Debtor, Debtor’s attorney, UST, trustee (if appointed), creditors’ committee and its attorney (if any). If no committee—serve the 20 largest unsecured creditors. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Cover sheet, (3) Copies of mortgage or lien lien documents and proof of perfection must be included with motion secured involving property, (4) Proposed order must be included with motion as an exhibit, and (5) Affidavit of service. consent order may be A submitted, if provided to the Court at least 24 hours prior to the return date and time. Under 28 U.S.C. § 1930(b), a fee is due upon the filing of a § 362(d) motion. Chapter 11 UST, trustee (if appointed) interest, in parties creditors’ committee and its attorney (if any). If no committee—serve the 20 largest unsecured creditors. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed included with order must be motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. (*) Service must comply with Rule 7004 FRBP. - Motion § 363 to authorize the use of cash collateral Motion must be served and electronically filed at least 15 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS § 363(b) use, property of the estate - Motion to lease sell or Note: Requests by the moving party can be submitted in Negative Notice or traditional motion format. Do not include “Negative Notice Statement” when using traditional motion format. Motion must be served and electronically filed at least 21 days prior to the return date and time.(*) filed (by counsel) Papers parties in represented by opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. § 364 - Motion to obtain credit Motion must be served and electronically filed at least 15 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) Negative Notice Format: (1) Negative Notice Statement must be in prominently displayed notice of motion, (2) Proposed order must be included with the motion as an exhibit, and (3) Affidavit of service. All motion papers must contain the following elements: Private Sale: (1) Description of property to be sold, (2) Name of purchaser and relationship to debtor, if any, (3) The price received for each item, and (4) Terms of Sale. Auction Sale: (1) Name of auctioneer, (2) Date, time and location of auction, (3) General description of property being auctioned, and (4) Minimum bid, if any. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed included with order must be motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. Chapters 7, 12 and 13 Debtor, debtor’s attorney, UST, all creditors. trustee and Chapter 11 Debtor, debtor’s attorney, UST, trustee (if appointed), creditors’ for attorney committee (if any) and all creditors. Chapter 11 (if UST, parties in interest, appointed), trustee creditors’ committee and its attorney (if any). If no committee—serve the 20 largest unsecured creditors. Chapters 12 and 13 Debtor, Debtor’s attorney, mortgagee, attorney for the mortgagee (if any have appeared or filed a proof of claim), trustee and UST. MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS Chapters 7, 12 and 13 Debtor, debtor’s attorney, UST, trustee and parties in interest. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. Chapter 11 Debtor, debtor’s attorney, trustee (if appointed), UST, creditors’ committee and its attorney (if any). If no committee—serve the 20 largest unsecured creditors. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. Chapters 7, 12 and 13 Debtor, debtor’s attorney, UST, trustee and parties in interest. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed included with order must be motion as an exhibit, and (3) Affidavit of service. Chapter 11 Debtor, debtor’s attorney, trustee (if appointed), UST, creditors’ committee and its attorney (if any). If no committee—serve the 20 largest unsecured creditors. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. - Motion to § 365 assume or reject an executory contract or unexpired lease of the debtor Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. § 365(d)(4) - Motion to time extend to the assume or reject an executory contract of the debtor Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) filed (by counsel) parties Papers in represented by opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Cover sheet, (3) A signed appraisal, a letter of valuation or a market analysis of real property as an exhibit to the motion, (4) Proposed order must be included with motion as an exhibit, (5) Proof of balance of superior liens, and (6) Affidavit of service, A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. § 506(a) determine secured claim - Motion to of status Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) filed (by counsel) Papers parties in represented by opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. Chapter 13 Debtor, debtor’s attorney, to be holder of avoided, lienholder’s attorney, UST and trustee. lien - § 522 objecting claimed exemption Motion to debtor’s (*) Service must comply with Rule 7004 FRBP. Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapters 7, 12 and 13 Debtor, debtor’s attorney, trustee and UST. filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) filed (by counsel) Papers parties in represented by opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. Chapters 7, 12 and 13 judgment Debtor, debtor’s attorney, any creditor which is a party to the motion and its attorney, the attorney for any judgment creditor at the time the judgment was taken, UST and trustee. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Cover sheet, (3) A signed appraisal, a letter of valuation, or a market analysis of real property as an exhibit to the motion, (4) A proposed order must be included with the motion as an exhibit, and (5) Affidavit of service. (*) Service must comply with Rule 7004 FRBP. Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapter 7 Debtor, debtor’s attorney, UST and trustee. filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Papers are to clearly set forth detailed facts, so that the Court can make the required affirmative finding of “cause”, (3) Proposed order must be included with motion as an exhibit, and (4) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. § 522(f) - Motion for avoiding the fixing of a lien on an interest of the debtor in property to the extent lien impairs an exemption that such - Motion § 523 to extend the time to file complaints to have the the Court determine dischargeability of a debt (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS - Motion by § 542 trustee compel to turnover of property of estate Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapters 7, 12 and 13 Debtor, debtor’s attorney, UST and parties in interest. filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. (*) Service must comply with Rule 7004 FRBP. - Motion § 554 abandonment property for of Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) Chapters 7, 12 and 13 is Trustee and UST. If the movant a creditor, service must also be made upon and the debtor debtor’s attorney. Chapter 11 UST, trustee (if appointed) creditor’s committee and its attorney (if any). If no committee—serve the 20 largest unsecured creditors. If the movant is a creditor, service must also be made upon and the debtor debtor’s attorney. (1) Cover sheet, (2) Negative Notice Statement must be prominently displayed in notice of motion, (3) Copies of mortgage or lien documents and proof of lien perfection, (4) Basis for market value if other than an appraisal, letter valuation, market analysis, NADA value or other source of value which has been agreed to by the trustee, (5) A proposed order must be included with the motion papers as an exhibit, and (6) Affidavit of service. of A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. Pursuant to 28 U.S.C. § 1930(b), a fee is due upon the filing of a § 554 motion. MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. - Motion by § 554(c) trustee excepting property of the estate from abandonment Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapter 7 Debtor, debtor’s attorney, UST and parties in interest. filed (by counsel) Papers parties in represented by opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. Motion must be served and electronically filed at least 21 days prior to the return date and time.(*) Chapter 7 Debtor, debtor’s attorney, UST and all creditors § 707(a)(1) - Motion by trustee to dismiss a case for failure of debtor to appear at a meeting of creditors filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Cover sheet, (3) Proof of value in the form of a signed appraisal or letter of valuation, and proof of perfection, if applicable, must be included with the motion, (4) Proposed order must be included with motion as an exhibit, and (5) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Papers are to clearly set forth detailed facts so that the Court can make the required affirmative finding of “cause”, (3) Proposed order must be included with motion as an exhibit, and (4) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. - Motion § 722 to redeem tangible property personal intended for personal, family or household use from a lien securing a dischargeable consumer debt Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. Chapter 7 Debtor, debtor’s attorney, any other creditor which is a party to the motion and its attorney, UST and trustee. (*) Service must comply with Rule 7004 FRBP. - Motion § 727 to extend the time to file complaints objecting to the the discharge of debtor Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapter 7 Debtor, debtor’s attorney, UST and trustee. filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS Chapter 11 Debtor, debtor’s attorney, trustee (if appointed), UST, equity security holders, all creditors and attorney for (if creditors’ committee any). (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. Pursuant to 28 U.S.C. § 1930(b), a conversion fee is due upon the filing of a motion to convert a Chapter 11 case to Chapter 7. No fee is due if the request is to convert to Chapter 12 or Chapter 13. Chapter 11 UST, trustee (if appointed), creditors’ committee and its attorney (if any). If no committee—serve the 20 largest unsecured creditors. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. § 1112 - Motion convert or dismiss to Motion must be served and electronically filed at least 21 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. § 1121(d) - Motion to extend the exclusive time within which a debtor in possession must file a plan and disclosure statement (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. - Motion § 1221 to extend the time to file a plan Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapter 12 UST and trustee. filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. shall to order proposed The incorporate three elements: (1) Language that the last day for filing complaints under 11 U.S.C. § 1228(c) the objecting discharge of particular debts shall be thirty (30) days from the date of the order and if no complaint is filed the debts may be discharged, (2) Reaffirmation agreements must be filed within sixty (60) days of the last day fixed for filing complaints against the discharge, and (3) If the movant is a debtor(s) not represented by counsel, the order shall also contain language that should the debtor(s) plan to file a reaffirmation agreement, a request for a § 524(d) hearing along with reaffirmation the agreement must be filed within sixty (60) days of the last day fixed for filing complaints against the discharge. § 1228(b) - Motion for hardship discharge Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapter 12 Trustee, UST and creditors. all filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS §§ 1229 and 1329 - Motions to modify the plan Motion must be served and electronically filed at least 21 days prior to the return date and time.(*) Chapter 12 and 13 Trustee and all creditors. filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Cover sheet must accompany motion and also be served on all creditors and the trustee, (3) Full application must be served upon any affected secured creditor, trustee, debtor, and any creditor or their attorney who appeared at the § 341 meeting or confirmation hearing, (4) Additional professional fee requests should be addressed in the motion and indicated whether or not fees are to paid within or outside the plan, (5) The amended budget is to be included with the motion, (6) Proposed order must be included with motion as an exhibit, and (7) Affidavit of service. shall proposed The order incorporate four elements: (1) Language that the plan has been confirmed, (2) Changes made to the plan, (3) Attorney’s fees to be paid through the plan and, statement acknowledging that the remaining provisions of the original plan are still in effect. (4) A A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order to be included with the motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. § 1301 - Motion for stay relief of action against co-debtor Motion must be served and electronically filed at least 21 days prior to the return date and time.(*) Chapter 13 Debtor, debtor’s attorney, trustee and co-debtor. filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. The order shall incorporate three elements: (1) Language that the last day for filing complaints under 11 U.S.C. § 1328(c), (d) objecting to the discharge of particular debts shall be thirty (30) days from the date of the order, and if no complaint is filed the debts may be discharged, (2) Reaffirmation agreements must be filed within sixty (60) days of the last day fixed for filing complaints against the discharge, and (3) If the movant is a debtor(s) not represented by counsel, the order shall also contain language that should the debtor(s) plan to file a reaffirmation agreement, a request for a § 524(d) hearing along with reaffirmation the agreement must be filed within sixty (60) days of the last day fixed for filing complaints against the discharge. § 1328(b) - Motions for hardship discharge Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapter 13 Trustee, UST and creditors. all filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS Rule 1014(a) FRBP - Motion to change venue Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapters 7, 12 and 13 Trustee, UST and creditors. all (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. Chapter 11 (if Trustee appointed), UST, all creditors and attorney creditors’ for committee (if any). A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. Chapters 7, 12 and 13 plaintiff’s Plaintiff, attorney, defendant, defendant’s attorney, UST, debtor, debtor’s attorney, trustee and all creditors. Chapter 11 plaintiff’s Plaintiff, defendant, attorney, defendant’s attorney, UST, debtor, debtor’s attorney, trustee (if appointed), all creditors and attorney for creditors’ committee (if any). (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. The Note: following intervention language must be included in Notices of Hearing to Compromise or Settle in a § 727 Adversary Proceeding pursuant to Rule 7024 FRBP — elect “Creditors may to the adversary continue proceeding the to discharge of the debtor(s) under 11 U.S.C. § 727 by filing a notice of intervention with the Clerk’s Office within 72 hours of the hearing date and time. If no intervention, an Order will be the signed compromise/ settlement”. approving deny filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. Rule 2002(a)(3) FRBP - Motion to approve the a compromise controversy an adversary proceeding of in Motion must be served and electronically filed at least 21 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS Rule 2002(a)(3) FRBP - Motion to approve the a compromise controversy a bankruptcy proceeding of in Motion must be served and electronically filed at least 21 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. Chapter 7 Debtor, debtor’s attorney, UST, all creditors. trustee and (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with motion as an exhibit, and (3) Affidavit of service. Chapter 11 Debtor, debtor’s attorney, for UST, attorney (if creditors’ committee any) and all creditors. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. Chapters 7, 12 and 13 Debtor, debtor’s attorney, trustee, UST, claimant, attorney claimant’s (if known) person or designated as power of attorney. Chapter 11 Debtor, debtor’s attorney, trustee (if appointed), UST, claimant, claimant’s attorney (if known) or person designated as power of creditors’ committee and its attorney (if any). If no creditors’ committee—serve the 20 largest unsecured creditors. attorney, (*) Service must comply with Rule 7004 FRBP. Rule 3007 FRBP - Objection to claims Motion must be served and electronically filed at least 30 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Only one claim objection will be allowed per notice or order unless the objecting granted permission by chambers to use another format, (3) A proposed order to be included with the motion as an exhibit and, (4) Affidavit of service. party is A hearing will be held with regard to an objection to the claim of the United States unless the United States consents to a waiver of hearing. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS If is IRS Note: the claimant, service shall be upon IRS, the Attorney General and U.S. Attorney. If NYS is the claimant, service shall be upon NYS Dept. of Taxation and Finance in Albany and NYS Dept. of Taxation and Finance in Rochester. Chapters 7, 12 and 13 plaintiff’s Plaintiff, attorney, defendant, defendant’s attorney, UST, debtor, debtor’s attorney, trustee and all creditors. Chapter 11 plaintiff’s Plaintiff, attorney, defendant, defendant’s attorney, UST, debtor, debtor’s attorney, trustee (if appointed), all creditors and attorney for creditors’ committee (if any). See previous page (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Proposed order must be included with the motion as an exhibit, and (3) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. The Note: following intervention language must be included in Notices of Hearing to Compromise or Settle in a § 727 Adversary proceeding pursuant to Rule 7024 FRBP: elect “Creditors may to adversary the continue proceeding the to discharge of the debtor(s) under 11 U.S.C. § 727 by filing a notice of intervention with the Clerk’s Office within 72 hours of the hearing date and time. If no intervention, an Order will be signed the compromise/ settlement”. approving deny Rule 3007 FRBP - Objection claims (cont.) to See previous page Rule 7024 FRBP - Motion to Intervene Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (rev. 8/2/2022) MOTION TYPE SERVICE AND FILING OF PAPERS PARTIES SERVED REQUIREMENTS of (1) Negative Notice Statement must be prominently displayed in (2) motion, notice Documentation in support of request, (3) Proposed order for the entry of default judgment (Items 2 and 3 are to be included with the motion as exhibits), and (4) Affidavit of service. (1) Negative Notice Statement must be prominently displayed in notice of motion, (2) Application should set forth sufficient detail as to why such a withdrawal will not substantially prejudice the client, (3) Proposed order must be included with motion as an exhibit, and (4) Affidavit of service. A consent order may be submitted for proposed order, if provided to the Court at least 24 hours prior to the return date and time. Rule 7055 FRBP(cid:3) (cid:16) Motion for entry of judgment default(cid:3) against (cid:83)(cid:68)(cid:85)(cid:87)(cid:92)(cid:15)(cid:3) (cid:76)(cid:81)(cid:70)(cid:79)(cid:88)(cid:71)(cid:76)(cid:81)(cid:74)(cid:3)the debtor (cid:68)(cid:81)(cid:92)(cid:3) Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapters 7, 12 and 13 Debtor, debtor’s attorney, UST, trustee, defendant and defendant’s attorney. filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. Chapter 11 Debtor, debtor’s attorney, UST, trustee (if appointed), defendant and defendant’s attorney. (*) Service must comply with Rule 7004 FRBP. Local Rule 2091-A(1) - Motion to withdraw as attorney Motion must be served and electronically filed at least 12 days prior to the return date and time.(*) Chapters 7, 12 and 13 Debtor, trustee and UST. Chapter 11 Debtor, trustee appointed), UST attorney committee (if any). for (if and creditors’ filed (by counsel) parties Papers represented by in opposition or response must be served and electronically filed not less than 72 hours prior to the scheduled date and time of the motion, notwithstanding Rule 9006(a) FRBP. (*) Service must comply with Rule 7004 FRBP. (cid:49)(cid:50)(cid:55)(cid:40)(cid:29)(cid:3)(cid:87)(cid:82)(cid:3)(cid:69)(cid:72)(cid:3)(cid:88)(cid:86)(cid:72)(cid:71)(cid:3) (cid:69)(cid:92)(cid:3)(cid:39)(cid:72)(cid:69)(cid:87)(cid:82)(cid:85)(cid:10)(cid:86)(cid:3)(cid:70)(cid:82)(cid:88)(cid:81)(cid:86)(cid:72)(cid:79)(cid:3) (cid:50)(cid:49)(cid:47)(cid:60)(cid:17) (rev. 8/2/2022)

=== sample Rule 16 Order ===

UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NEW YORK—ROCHESTER DIVISION In Re: v. Debtor(s) Defendant(s) Case No.: Chapter: A.P. No(s).: ORDER SETTING RULE 16 CONFERENCE IT IS ORDERED, that pursuant to 11 U.S.C. § 105(d)(1) and Rule 16 FRCP/Rule 7016 FRBP, you are directed to appear in person with your attorney—unless you have been granted permission by the Court to participate remotely following a timely request—at a scheduling and settlement conference (“Rule 16 Conference”) regarding this Adversary Proceeding. The Rule 16 Conference will be conducted by the Honorable Paul R. Warren, U.S. Bankruptcy Judge, at the U.S. Courthouse, 100 State Street, Suite 1400, Rochester, New York 14614 on: _________________________________ THE FAILURE OF A PARTY OR ITS ATTORNEY TO APPEAR, OR BEING SUBSTANTIALLY UNPREPARED TO PARTICIPATE, OR NOT PARTICIPATING IN GOOD FAITH, OR THE FAILURE TO OBEY THIS ORDER, MAY RESULT IN THE ISSUANCE OF ORDERS AUTHORIZED BY RULE 16(f), INCLUDING THOSE SANCTIONS AUTHORIZED BY RULE 37(b)(2)(A)(ii)-(vii) FRCP, SUCH AS AN AWARD OF REASONABLE EXPENSES—INCLUDING ATTORNEY’S FEES—AGAINST, OR STRIKING PLEADINGS OF, THE PARTY THAT FAILS TO OBEY THIS ORDER. IT IS FURTHER ORDERED, that the parties are not permitted to seek formal discovery from any source before the parties have conferred as required by Rule 26(f) FRCP. IT IS FURTHER ORDERED, that the parties are to confer in accordance with Rule 26(f) FRCP at least 21 days in advance of the Rule 16 Conference. The parties must prepare a Discovery Plan, pursuant to Rule 26(f)(3) FRCP. The Plaintiff must file the Discovery Plan within 14 days following the parties’ discovery conference. (A sample Discovery Plan is attached for convenience.) IT IS FURTHER ORDERED, that the parties appear at the Rule 16 Conference with a realistic assessment of their case. Counsel must attend with appropriate authority to enter into stipulations, make admissions, and be prepared to candidly discuss: 1) 2) the legal issues, claims, and defenses; issues concerning jurisdiction of the Court; 1 3) discovery deemed necessary, the schedule for discovery, a discovery cut-off date and trial date, as 4) detailed in the parties’ Discovery Plan; facts not in dispute, supported by evidence that would be admissible at trial, which can be stipulated as undisputed—with a proposed date for the submission of a written stipulation; 5) settlement of the litigation—the Court is prepared to actively assist in settlement discussions, unless a party objects to the Court’s participation; 6) case management controls to eliminate wasteful discovery activities, control litigation costs, and expedite resolution of the action. IT IS FURTHER ORDERED that, after issue is joined, no party shall serve or file a motion for summary judgment—or similar dispositive motion—prior to completion of the Rule 16 Conference. In order to avoid the burden on the Court and to minimize litigation costs to the parties, motions for summary judgment under Rule 56 FRCP/Rule 7056 FRBP, and any opposition to such motions, must comply with the following requirements, in addition to those specified in Rule 56 FRCP/Rule 7056 FRBP: 1) Movant’s Statement—Upon any motion for summary judgment pursuant to Rule 56 FRCP, there must be annexed to the motion a separate, short, and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit the statement shall constitute grounds for denial of the motion. 2) Opposing Statement—Papers opposing a motion for summary include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short, and concise statement of additional material facts as to which it is contended that there is a genuine issue to be tried. judgment shall 3) Each numbered paragraph in the statement of material facts required to be served by the moving party shall be deemed admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. 4) Each statement by the movant or opponent pursuant to subdivisions (1) or (2) of this Order, including each statement controverting any statement of material fact by a movant or opponent, must be followed by citation to evidence in a form that would be admissible, if offered at trial. 5) Parties are to be particularly mindful of Rule 56(c)(4) FRCP. IT IS FURTHER ORDERED, that adjournment of the Rule 16 Conference will not be granted unless cause is demonstrated. In such circumstances, the consent of all parties and the approval of the Court is required. The party seeking an adjournment must contact the Courtroom Deputy [585-613-4214] as soon as the need for an adjournment of the Rule 16 Conference becomes necessary. Dated: Rochester, New York HONORABLE PAUL R. WARREN United States Bankruptcy Judge 2

=== writable PDF Discovery Plan ===

UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NEW YORK - - ROCHESTER DIVISION ___________________________________________________________________________________________ In Re: Case No.: Chapter: ___________________________________________________________________________________________ Debtor(s) A.P. No.: Plaintiff(s) v. Defendant(s) ___________________________________________________________________________________________ CERTIFICATION AND REPORT OF RULE 26(f) FRCP/RULE 7026 FRBP CONFERENCE AND DISCOVERY PLAN Please fill in or check the appropriate blanks to certify completion of the Rule 7026 FRBP Attorney's Conference and provide the required information to the Court. Where the parties were unable to agree on a specific provision or item, please so note and attach any necessary explanation. Please note that this information will be used as a guideline by the Judge, in conducting the Rule 16 FRCP Conference. 1. Certification Concerning Discovery Plan. (check one) _____ A discovery plan is needed or useful in this case and is outlined below. _____ The parties cannot agree on a discovery plan. The attached sets forth the parties' disagreements and reasons for each party's position. (attach an explanation to this document) 2. Certification of Conference. Pursuant to Rule 26(f) FRCP/Rule 7026 FRBP, a meeting was held on ___________________________________ (date) at ________________________________________(place) ] (check if applicable) and was conducted by the undersigned counsel for the designated or by telephone [ parties in this adversary proceeding. 3. Pre-Discovery Disclosures. The information required by Rule 26(a)(1) FRCP and Rule 7026 FRBP (check one) [ ] has been exchanged; [ ] will be exchanged by ________________________ (date). 4. Discovery Plan. The parties jointly propose to the Court the following discovery plan: a. All discovery will be completed by ____________________________________________ (date). [If applicable] Discovery on _________________________________________________________ _________________________________________________________________________________ (identify any issues requiring early discovery) will be completed by ______________________ (date). Page 1 of 2 b. Discovery limits: Page 2 of 2 i. Maximum of ______ depositions by plaintiff(s) and ______ by defendant(s) (ordinarily 3) [or ______ by each plaintiff and ______ by each defendant]. ii. Other: (Describe) ____________________________________________________________ _____________________________________________________________________________ 5. Dispositive Motions. All potentially dispositive motions should be filed by ________________________ (date) [not to be brought before the Rule 16 Conference is completed by the Court]. 6. Settlement: [ ] is likely. [ ] is unlikely. [ ] cannot be evaluated prior to __________________________________ (date). [ ] the parties consent to the Court's active participation in settlement discussions. 7. Trial. The case should be ready for trial by ________________________________ (date) and should take ______ day(s). 8. All parties [ ] consent/ [ ] do not consent to this Court entering final judgment. _____________________________________ Plaintiff's Counsel Date _______________________________________ Defendant's Counsel Date _____________________________________ Plaintiff's Counsel Date _______________________________________ Defendant's Counsel Date

=== Trial Scheduling Order ===

Sample Trial Scheduling Order UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NEW YORK ______________________________________ In re: ______________________________________ Debtor, Bankruptcy Case No. Plaintiff, v. Adversary Proceeding No. ______________________________________ Defendant(s). TRIAL SCHEDULING ORDER Having conferred with the parties and counsel pursuant to Rule 16(b) FRCP, Rule 7016 FRBP, and 11 U.S.C. §105(a), it is ORDERED that: 1. Motions to amend pleadings or join parties must be filed by ____________________. 2. Initial disclosures under Rule 26(a) FRCP must be provided by ___________________. 3. All discovery must be completed on or before _____________. Expert witness disclosures must be exchanged on or before ___________________. 4. Pre-trial Statements, in the format attached, must be filed at least 14 days before trial. 5. Stipulations (uncontested facts, admissibility of evidence, qualifications of experts, issues to be tried, etc.) must be filed at least 14 days before trial. 6. A list of witnesses to be called at trial (including the information required by ¶ 8 of the Pre- Trial Statement), together with copies of exhibits to be used at trial (pre-marked, indexed, in three-ring binders), must be submitted to chambers and provided to opposing counsel at least 14 days before trial. 7. A pre-trial conference will be held on ______________. Motions in limine, if any, must be served and filed contemporaneously with the Pre-Trial Statement, and made returnable on the date and time of the pre-trial conference. 8. Trial is set, as a date certain, for ________________to be continued on ___________, if necessary. Counsel are to meet in the courtroom at 8:30 a.m. Trial will begin at 9:00 a.m. 9. Post-trial briefs are required to be served and filed on or before _____________________. 10. Summary Judgment motions and other dispositive motions will not be entertained, as there appear to be genuine issues of material fact. 11. The dates set out in this Trial Scheduling Order are intended as “firm deadlines.” The parties cannot attempt to amend this Order by stipulation. The Court will not amend this Order unless: (1) A motion to amend is served and filed in a timely manner so that the motion can be heard BEFORE the affected deadline(s) has expired; and (2) Any such motion must demonstrate extraordinary circumstances as cause to support the requested amendment to this Order. The failure of the parties collectively (or either party singularly) to timely and diligently undertake those steps necessary to comply with this Trial Scheduling Order will not demonstrate cause sufficient to obtain a modification of the deadlines set out in this Order. Failure to comply with this Order will result in the imposition of a sanction against the offending party, including the striking of the party’s pleadings or such other penalty as the Court deems appropriate. IT IS SO ORDERED. Dated: Rochester, New York _________________________________ HON. PAUL R. WARREN United States Bankruptcy Judge 2

=== Pre-Trial Statements ===

Sample Pre-Trial Statements Requirements and Format Pre-Trial Statements Parties to an adversary proceeding must file a “Joint Pre-Trial Statement” at least 14 days before a trial is scheduled to begin. If the parties are not able to agree on the terms of the Joint Pre-Trial Statement, then each party must file and serve a separate Pre-Trial Statement at least 14 days before trial, which must include an affirmation that the party has made diligent, good faith efforts to produce a Joint Pre-Trial Statement, but was unable to do so. The Pre-Trial Statement must include the following information, under separately numbered headings, and in the following order: 1. The case caption of both the bankruptcy case and the adversary proceeding. 2. A brief procedural history of the case, including the dates: (a) the case was filed, (b) the adversary proceeding was filed, (c) the key pleadings and papers were filed in the case and adversary proceeding, and (d) the pre-trial statement due date. 3. A list of all undisputed material facts. 4. A list of all disputed material facts. 5. A concise statement of each contested legal issue (including whether the Court has jurisdiction to enter final orders on each issue). 6. A summary of all evidentiary issues and any anticipated evidentiary objections. 7. An acknowledgment that any motions in limine must be filed contemporaneously with the Pre-Trial Statement and made returnable on the date and time set for the pre-trial conference. 8. Identification of witnesses, including: (a) the name of each witness who will testify, (b) a brief summary of each witness’s anticipated testimony, and (c) the projected duration of each witness’s testimony. 9. The estimated length of the trial. 10. Any unique circumstances the parties will ask the court to address as part of the trial.

=== Order Directing Parties to File Post-Trial Briefs, With Proposed Findings of Fact and Conclusions of Law ===

Sample Order Directing Post-Trial Briefing UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NEW YORK _________________________________________ In re: ______________________________________ Debtor, Bankruptcy Case No. Plaintiff, v. Adversary Proceeding No. ______________________________________ Defendant(s). ORDER DIRECTING PARTIES TO FILE POST-TRIAL BRIEFS, WITH PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW The Court conducted a trial of this action on _________________. The issues before the Court are: _____________________________________________________________________. The Court finds that the submission of post-trial briefs by each party on these issues would assist the Court in making its rulings. It is therefore ORDERED, that, on or before ___________________ at _______, each party is to serve and file a post-trial brief addressing the issues set out above, with points and authorities, for the Court to consider, together with proposed findings of fact and conclusions of law; and it is further ORDERED, that the date established in this post-trial Order is intended as a “firm deadline.” The parties cannot attempt to amend this Order by stipulation. The Court will not amend this Order unless: (1) A motion to amend is served and filed in a timely manner so that the motion can be heard BEFORE the deadline has expired; and (2) Any such motion must demonstrate extraordinary circumstances as cause to support the requested amendment of this Order. The failure of the parties collectively (or either party singularly) to timely and diligently undertake those steps necessary to comply with this Order will not demonstrate cause sufficient to obtain a modification of the deadline set out in this Order. IT IS SO ORDERED. Dated: Rochester, New York ___________________________________ HON. PAUL R. WARREN United States Bankruptcy Judge 2