Guidelines for Participation in Video Hearings via Zoom; Preparation of Chapter 11 Ballot Reports; Procedure Governing Live Testimony; Procedure Governing Motions to Extend the Automatic Stay (Sec. 362(c)); Procedure Regarding Exhibit Retention; Presumption of In-Person Hearings

=== Guidelines for Participation in Video Hearings via Zoom ===

Judge Dales’s Guidelines for Participation in Video Hearings via Zoom The following guidelines apply to any hearings scheduled to be held before Judge Dales via Zoom videoconferencing. Prior to the Zoom Video Hearing: 1. Please visit zoom.us and create a free account. You should also download and install the app on your computer, tablet, or smart phone. It is preferable to download the app, rather than relying on the web browser option, because the full program allows for use of features (such as private, confidential breakout rooms) which are not available via the plug-in version. 2. No paid license is required to participate in video hearings scheduled by the court. 3. To facilitate identification of participants at the video hearing, please use your real name when setting up your Zoom account. Court employees may not admit a participant who did not make prior arrangements with the court to participate in the hearing and whose identity is not apparent to the court employees based on information within the Zoom app. 4. All attorneys not appearing in person are expected to appear at the hearing by video, rather than merely by phone. Attorneys must show good cause for failure to appear by video. 5. Any party wishing to ask questions of a witness who will appear by Zoom shall deliver to the witness, in advance of the hearing, a true and complete copy of any exhibit that will be the subject of the examination so that the witness will have a copy of any such exhibit in his or her possession. The court may refuse to permit examination regarding any exhibit not provided to a witness in conformance with this paragraph. Participating in the Zoom Video Hearing: 1. For each scheduled court hearing, you will receive an email invitation (“e-vite”) containing links for joining the video hearing via the Zoom app or by telephone. 2. If participating by video, you will join the virtual courtroom by either: (1) clicking the link in the e-vite, then entering the 6 digit password provided in the e-vite when prompted in the Zoom app, or (2) opening the Zoom app, clicking “Join,” then entering the Meeting ID and password provided in the e-vite when prompted. If participating by telephone, you will join the virtual courtroom by calling the phone number provided in the e-vite, then entering the Meeting ID and password. 3. All participants are asked to begin the process of joining the video conference at least 15 minutes in advance of the scheduled hearing time, to allow for any potential problems with the technology or verification of identity. 4. Only the attorneys and parties who have contacted the court and provided their email address and telephone number will receive an e-vite from the court. It is incumbent on attorneys to communicate the requirements for participating in the video hearing to their clients and witnesses, if any. 5. When you join the virtual hearing, you will appear in a virtual waiting room with other attorneys, parties, and witnesses. The court will admit participants to the virtual hearing approximately 5 minutes before the scheduled time or, if there are several matters scheduled for a particular time, when their case is called. 6. When you enter the virtual courtroom, your video and audio will automatically be on. You may be muted by the court until the hearing begins. 7. At the time of the hearing, all participants must be in a quiet place, without interruptions, noises, or other distractions. 8. The court’s general prohibition on video and audio recording and broadcast in the courtroom remains in effect during virtual hearings. Recording and broadcast of court proceedings conducted by video conferencing is strictly prohibited. All video hearings will be recorded by the court’s official court reporter and transcripts may be ordered after the hearing. 9. At an evidentiary hearing, the court will likely only permit witnesses who are visible on camera to testify.

=== Procedure Governing Live Testimony ===

JUDGE DALES’S PROCEDURES GOVERNING LIVE TESTIMONY DURING MOTION DAY HEARINGS (FED. R. BANKR. P. 9014(e To avoid confusion, delay, and unnecessary expense, and to comply with Fed. R. Bankr. P. 9014(e), effective on and after June 1, 2012, the following procedures will apply in matters assigned to the Honorable Scott W. Dales: 1. Except as otherwise provided herein, any hearing scheduled on the court’s regular motion day shall not be conducted as an evidentiary hearing, and the court will not permit witnesses to testify except in the form of affidavit or solemn declaration as contemplated in Fed. R. Civ. P. 43(c) and 28 U.S.C. § 1746. 2. The following hearings scheduled on the court’s regular motion day may be conducted as evidentiary hearings at which each party shall be prepared to proceed with witnesses in attendance and other evidence: a. Matters with respect to which the court has entered an order or hearing notice expressly advising parties that the hearing will be a full evidentiary hearing at which witnesses will be allowed to testify in person; b. Final hearings on motions for relief from stay, as contemplated in LBR 4001-1(c); c. Motions to continue the automatic stay under 11 U.S.C. § 362(c); d. Motions for authority to sell, use or lease property under 11 U.S.C. § 363 (including cash collateral), or to obtain credit under 11 U.S.C. § 364; e. Motions for injunctive relief under Fed. R. Civ. P. 65; f. Motions to convert under 11 U.S.C. § 1112(b); and g. Chapter 11 confirmation hearings. 3. Any party who seeks an exception to the procedure described in Paragraph 1 shall, at least 14 days in advance of the hearing: (1) consult with opposing parties regarding the need for live testimony, in order to seek consensus; and (2) file a written request, on notice to opposing parties, for an evidentiary hearing, which may result in a telephone conference with the court regarding the need for evidence and the nature of the hearing. 4. Nothing in these procedures, including the use of affidavit or solemn declaration, shall abridge a party’s cross-examination rights, if asserted, or preclude the court from adjourning any motion for a full evidentiary hearing as appropriate. 5. Nothing in these procedures shall preclude interested parties from consenting to the court’s hearing testimony from a witness at a hearing on the court’s regular motion day, or from seeking an adjournment of an evidentiary hearing, subject to court approval.

=== Procedure Governing Motions to Extend the Automatic Stay (Sec. 362(c ===

JUDGE DALES’S PROCEDURES GOVERNING MOTIONS TO EXTEND THE AUTOMATIC STAY FILED USING “NOTICE AND OPPORTUNITY TO OBJECT” OR “NEGATIVE NOTICE” PROCEDURES (11 U.S.C. § 362(c), LBR 4001-5 & 9013) To avoid confusion, surprise, delay, and expense, and to encourage compliance with the 30 day deadline prescribed in 11 U.S.C. § 362(c)(3)(B), effective May 1, 2018, the following procedures will apply in matters assigned to Judge Dales: THE PROBLEM. In general, when a bankruptcy case by or against a debtor is the second case filed within the preceding year, the automatic stay terminates as to the debtor on the 30th day of the second case. 11 U.S.C. § 362(c)(3)(A). The court may extend the stay as to any or all creditors if notice and a hearing has been “completed” before the expiration of the 30th day of the case. 11 U.S.C. § 362(c)(3)(B). A debtor or party in interest may request an extension of the automatic stay by filing a motion using the “negative notice” procedure under LBR 9013(c), if the movant files the motion within 7 days after the commencement of the second case. LBR 4001-5; 11 U.S.C. § 362(c)(3)(B). Using the “negative notice” procedure under LBR 4001-5 and 9013(c) presents a risk that that in the event the motion draws an objection, the hearing may not be “completed” within the 30 day period prescribed in 11 U.S.C. 362(c)(3)(B), depending on the court’s schedule. More specifically, it may be difficult for the moving party to comply with the 30 day hearing deadline when a creditor or trustee files an objection to the motion within the time for objecting but shortly before the 30th day of the case if the court’s schedule does not permit it to conduct and conclude the hearing by the statutory deadline. THE SOLUTION. 1. A party who files a motion to continue the automatic stay and who anticipates that the motion may draw an objection should strongly consider using the usual procedures for getting the motion on the court’s calendar (per LBR 9013(e , rather than the “negative notice” procedure (per LBR 4001-5 and 9013(c . 2. When an objection is filed in response to a motion to continue the automatic stay on negative notice under LBR 4001-5, and the Clerk cannot schedule a hearing within 30 days of the petition date on the court’s regular motion day (in the location assigned under LBR 1014), the moving party may file an ex parte written request to set the hearing on a non-motion day or on a motion day in another city, in order to meet the 30 day deadline. 3. In making a written request to schedule a hearing on such a motion, the moving party must keep in mind the 7 day notice requirement of Fed. R. Bankr. P. 9006(d) and the possible need to request an order reducing the notice period under Fed. R. Bankr. P. 9006(c)(1). 4. Absent a request for special scheduling as described herein, the court will generally schedule motions to extend the automatic stay on the next available motion day in the assigned location, even if the scheduling may result in denial of the motion (as to objecting parties) for failure to conclude the hearing within the statutory period. 5. The court regards the moving party as responsible for ensuring that the motion to extend the automatic stay be set for hearing at a time that makes it possible to comply with the statutory deadline, as explained in In re Markoch, __ B.R. ___, Case No. DK 18–00740, 2018 WL 1882949 (Bankr. W.D. Mich. April 19, 2018). The Markoch opinion is available at http://www.miwb.uscourts.gov/sites/miwb/files/opinions/Markoch.pdf.

=== Procedure Regarding Exhibit Retention ===

JUDGE DALES'S PROCEDURES FOR POST-TRIAL RETRIEVAL OR DISPOSAL OF EXHIBITS Effective April 1, 2023 (1) Retention of Exhibits by Parties. All exhibits and other material filed or placed in the custody of the Clerk for the court’s consideration at a trial or evidentiary hearing in connection with a contested matter or adversary proceeding shall be retrieved by the party offering the exhibit or other material at the conclusion of the trial or evidentiary hearing unless the court, on motion, orders otherwise. (2) Retrieval of Exhibits by Parties. It shall be the responsibility of the party offering each exhibit or other material to maintain the exhibits and other materials in the party’s custody for 60 days after the entry of final judgment, if no timely appeal is filed, or 60 days after the entry of final judgment or issuance of mandate on appeal (if appeal is filed), whichever is later, unless the court orders otherwise. (3) Exhibits Left in Court Possession. When exhibits or other materials remain in the custody of the Clerk, either pursuant to the court’s order or because of non-compliance with these provisions, the party offering the exhibit or other material shall retrieve it from the Clerk within 60 days after entry of final judgment, if no timely appeal is filed, or 60 days after the entry of final judgment or issuance of mandate on appeal (if appeal is filed), whichever is later, unless the court orders otherwise. (4) Court Disposal of Exhibits. Without further notice or order, the Clerk may treat as abandoned property (and dispose of such property) any exhibit or other material retained in the Clerk’s custody if the party offering the exhibit or material does not retrieve it in accordance with these procedures.