Hon. Neil W. Bason · U.S. Bankruptcy Court for the Central District of California
=== Order Setting Combined Hearing on Disclosure Statement & Ch 11 Plan ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES DIVISION In re: ________________, Debtor(s). Case No.: 2:__-bk-_____-NB CHAPTER 11 ORDER SETTING COMBINED HEARING ON (A) FINAL APPROVAL OF DISCLOSURES AND (B) PLAN CONFIRMATION ______________ 1:00 p.m. Hearing: Date: Time: Place: Courtroom 1545 255 E. Temple St. Los Angeles, CA 90012 (or via Zoomgov per posted procedures) Pursuant to a status conference on _______________, at which this Court addressed procedures for the proposed chapter 11 Plan and conditionally approved the related disclosures (see dkt. __),1 IT IS ORDERED: (1) _________[generally at least 42 days before the hearing] is the deadline for the Plan proponent to serve all parties in interest, including the U.S. Trustee and the Securities and Exchange Commission, with: (a) the Plan and any separate Disclosure 1 This order sets a combined hearing on (A) final approval of the disclosures that were conditionally approved at the status conference (whether or not those disclosures are contained in a separate disclosure statement) and (B) confirmation of the proposed Plan. Authority for such procedures is contained in 11 U.S.C. § 105(a) & (d)(2)(B)(vi), 1125(f), and/or 1188; FRBP 2002(b), 3014, 3017-3017.2, 3018, 3020, and/or 9006(c); and LBR 3017-1(a). Notice of these procedures has been provided in the “Posted Procedures of Judge Bason” (available at www.cacb.uscourts.gov), expressly made applicable in this Court’s “Procedures Order” (issued and served shortly after the commencement of this case). Rev. 6/21/23 -1- 1 2 3 4 5 6 7 8 9 Statement, (b) ballots (for persons entitled to vote) (see Official Form B 314), and (c) this Order (collectively, the “Voting Package”) (to save costs, copies may be double- sided and proofs of service should not be served). Claims are fixed as of that date for voting purposes, except that any motion to allow or disallow a claim for voting purposes may be self-calendared to be contemporaneous with the confirmation hearing. (2) ______[generally 14 days before the hearing] is the deadline (a) for ballots to be received (at the address listed in the ballot) and (b) for any objections to confirmation of the Plan and final approval of related disclosures to be served and filed (with the Clerk’s Office, 255 E. Temple St., Los Angeles, CA 90012). If this is a 10 Subchapter V or small business case, the same deadline applies for any election by 11 secured creditors under 11 U.S.C. § 1111(b) (see also LBR 3014-1(a . 12 (3) ______[generally 7 days before the hearing] is the deadline for the Plan 13 proponent (a) to serve and file responses to any objections, (b) to file a proof of service 14 of the Voting Package, and (c) to file a ballot summary (notwithstanding the deadline in 15 LBR 3018-1). 16 (4) At the above-captioned TIME, this Court will hold a combined hearing on 17 (a) whether to confirm the Plan and (b) whether to approve the associated disclosures 18 as providing adequate information. No written motion/brief in support of confirmation is 19 required (other than responses to any objections as set forth above). 20 Debtor(s)/witnesses need not be present because this court anticipates accepting offers 21 of proof, or setting a further hearing if necessary. ### 22 23 24 25 26 27 28 Rev. 6/21/23 -2-
=== Sample Order re: Use of Cash Collateral ===
P L L R E G R E B & D E I R F T T O G U A D N A L W A L T A S Y E N R O T T A A I N R O F I L A C , S E L E G N A S O L Case 2:13-bk-18508-NB Doc 55 Filed 04/18/13 Entered 04/18/13 09:50:26 Desc Main Document Page 1 of 9 1 2 3 4 5 LANDAU GOTTFRIED & BERGER LLP MICHAEL I. GOTTFRIED (State Bar No. 146689) Email: [email protected] ALEKSANDRA ZIMONJIC (State Bar No. 210252) Email: [email protected] 1801 Century Park East, Suite 700 Los Angeles, California 90067 Telephone: (310) 557-0050 Facsimile: (310) 557-0056 6 Attorneys for Creditor Level 3 Communication, LLC FILED & ENTERED APR 18 2013 CLERK U.S. BANKRUPTCY COURT Central District of California BY DEPUTY CLERK walter 7 8 9 10 11 12 In re UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES DIVISION Case No. 2:13-bk-18508-NB Chapter 11 TCAST COMMUNICATIONS, INC., a California Corporation Debtor. ORDER RE DEBTOR’S EMERGENCY MOTION FOR AUTHORITY TO USE CASH COLLATERAL Hearing: Date: April 15, 2013 Time: 11:45 a.m. Place: Courtroom 1545 United States Bankruptcy Court 255 East Temple Street Los Angeles, CA 90012 Judge: Honorable Neil Bason 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:13-bk-18508-NB Doc 55 Filed 04/18/13 Entered 04/18/13 09:50:26 Desc Main Document Page 2 of 9 1 On April 15, 2013, at 11:45 a.m., in Courtroom 1545 of the above entitled Court, with 2 the Honorable Neil W. Bason, judge presiding, a hearing was conducted on that Emergency 3 Motion For Authority To Use Cash Collateral (the "Motion") filed by TCAST Communications, 4 Inc., debtor and debtor in possession ("Debtor"). Joseph A. Eisenberg and Thomas M. Geher of 5 Jeffer Mangels Butler & Mitchell LLP appeared for Debtor; Michael I. Gottfried of Landau 6 Gottfried & Berger LLP appeared for Level 3 Communications, LLC ("Level 3"); and other 7 appearances were made as set forth in the Court's record. 8 The Court having read and considered the Motion; the Court having heard and 9 considered the arguments of counsel; the Court finding that notice and service of the Motion 10 was proper and good cause appearing therefor and the Court having issued its tentative 11 decision on the Motion, a copy of which is attached hereto as Exhibit "A", it is hereby 12 ORDERED that the Motion is, pursuant to the terms and conditions of that tentative 13 decision attached hereto as Exhibit "A" and this Order, granted on an interim basis to and 14 through the conclusion of that April 29, 2013 further interim hearing on the Motion set pursuant 15 to this Order; and it is further 16 ORDERED that a further interim hearing on the Motion shall be held on April 29, 2013, 17 at 2:00 p.m. in Courtroom 1545 of the above entitled Court and, in connection with such 18 further interim hearing, Debtor and Level 3 shall: (i) file and serve any new or additional briefs 19 and supporting declarations no later than April 23, 2013, (ii) meet and confer to determine if 20 witnesses are required to be present at the April 29, 2013 hearing and (iii) inform the Court, prior P L L R E G R E B & D E I R F T T O G U A D N A L W A L T A S Y E N R O T T A A I N R O F I L A C , S E L E G N A S O L 21 22 23 24 25 26 27 28 2 Case 2:13-bk-18508-NB Doc 55 Filed 04/18/13 Entered 04/18/13 09:50:26 Desc Main Document Page 3 of 9 1 2 to April 29, 2013, of whether Debtor and Level 3 require the April 29, 2013 hearing to be 3 an evidentiary hearing. P L L R E G R E B & D E I R F T T O G U A D N A L W A L T A S Y E N R O T T A A I N R O F I L A C , S E L E G N A S O L 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Date: April 18, 2013 # # # 3 Case 2:13-bk-18508-NB Doc 55 Filed 04/18/13 Entered 04/18/13 09:50:26 Desc Main Document Page 4 of 9 EXHIBIT A Case 2:13-bk-18508-NB Doc 55 Filed 04/18/13 Entered 04/18/13 09:50:26 Desc Main Document Page 5 of 9 United States Bankruptcy Court Central District of California Los Angeles Judge Neil Bason, Presiding Courtroom 1545 Calendar Monday, April 15, 2013 11:45 am 2:13-18508 TCAST Communications, Inc. #1.00 Hrg re: Emergency Motion for Authority To Use Cash Collateral Docket #: 30 Hearing Room 1545 Chapter 11 Tentative Ruling: Appearances required but may be via telephone provided that arrangements must be made as provided in Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Telephonic appearances"). In addition to Judge Bason's standard procedures set forth below, the debtor should be prepared to address why the 13 week budget attached to the Motion includes payment of what are labeled "agent commissions" for February and March. Motion, dkt. 30, ex. A-15. The debtor filed its chapter 11 petition commencing this bankruptcy case on 4/1/13. Therefore, it appears that payment of commissions from February and March 2013 would be payment for pre-petition services. These commissions are not addressed in the debtor's motion to pay pre-petition priority wages. Dkt. 31. In addition, the debtor is directed to disclose if there are any other payments proposed in the budget that may be on account of pre-petition debts. The following are Judge Bason's standard conditions for (A) use of cash collateral or (B) postpetition financing by creditor(s) holding prepetition claim(s): (1) Form of order. (a) Any proposed order granting the motion shall include this tentative ruling as an exhibit, and such order shall be deemed to adopt this tentative ruling as a final ruling of the Court. (b) Orders approving the use of cash collateral may be on local form F2081- 1.1.ORDER.CASH.COLLATERAL. (c) Rather than repeating any terms set forth in the motion or any stipulation, the proposed order should either simply grant the motion (subject to any changes in the order) or incorporate the relevant portions of those documents by reference (including their docket number). (2) Interim and final relief. Except as specifically provided in any order granting the motion, any initial relief shall be on an interim basis only, and shall be subject to 4/11/2013 11:59:49AM Page 1 of 4 Case 2:13-bk-18508-NB Doc 55 Filed 04/18/13 Entered 04/18/13 09:50:26 Desc Main Document Page 6 of 9 United States Bankruptcy Court Central District of California Los Angeles Judge Neil Bason, Presiding Courtroom 1545 Calendar Monday, April 15, 2013 Hearing Room 1545 11:45 am Cont.... TCAST Communications, Inc. Chapter 11 modification at a final hearing to be noticed and held as follow: Hearing: 5/21/13 at 11:00 a.m. Deadline for debtor to serve and file notice of hearing: 4/26/13. (3) Minimum adequate protection. In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, the debtor shall provide at least the following protection to any creditor with a security interest in the subject property, pursuant to 11 U.S.C. §§ 361-364, as applicable: (a) Insurance. The debtor is directed to maintain insurance on the property in a dollar amount at least equal to the debtor’s good faith estimate of the value of such creditor's interest in any collateral that is typically insured, and such insurance shall name such creditor as an additional insured. (b) Taxes. The debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral). (c) Disclosures/access. The debtor is directed to provide, upon such creditor's reasonable request, an accounting of postpetition rents, profits, and expenses, appropriate documentation of those things, and access for purposes of inspection or appraisal. (d) Disputes. In the event of any disputes regarding the rulings herein, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact the Chambers of Judge Bason to arrange a mutually convenient time for a telephonic hearing to address such disputes. (4) Limitation on postpetition liens. In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts, any such liens shall be limited as follows: (a) Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless the order approving the motion not only states the new types of collateral but also includes a specific statement that such types of collateral are different from the prepetition collateral. (b) Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date. (c) Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition 4/11/2013 11:59:49AM Page 2 of 4 Case 2:13-bk-18508-NB Doc 55 Filed 04/18/13 Entered 04/18/13 09:50:26 Desc Main Document Page 7 of 9 United States Bankruptcy Court Central District of California Los Angeles Judge Neil Bason, Presiding Courtroom 1545 Calendar Monday, April 15, 2013 Hearing Room 1545 11:45 am Cont.... date. TCAST Communications, Inc. Chapter 11 (d) Perfection and validity/non-avoidability as of petition date. Such liens shall be limited to the extent that the creditor's security interests as of the petition date were duly perfected and are valid and unavoidable. (e) Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process. (5) Automatic disapproval of insufficiently disclosed provisions. Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved). Debtor(s): TCAST Communications, Inc. Represented By Party Information Joseph A Eisenberg Thomas M Geher Movant(s): TCAST Communications, Inc. Represented By Joseph A Eisenberg Thomas M Geher 4/11/2013 11:59:49AM Page 3 of 4 Case 2:13-bk-18508-NB Doc 55 Filed 04/18/13 Entered 04/18/13 09:50:26 Desc Main Document Page 8 of 9 United States Bankruptcy Court Central District of California Los Angeles Judge Neil Bason, Presiding Courtroom 1545 Calendar Monday, April 15, 2013 11:45 am Hearing Room 1545 2:13-18508 TCAST Communications, Inc. Chapter 11 #2.00 Hrg re: Debtor's Emergency Motion for (1) Authority to Pay Pre-Petition Priority Wages; and (2) To Continue Certain Employment Benefits and Policies Post-Petition Docket #: 31 Tentative Ruling: Grant the motion subject to proper service, see Order, dkt. 32, and any opposition. Appearances required but may be via telephone provided that arrangements must be made as provided in Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," "Instructions/Procedures," "Procedures;" see the section labeled "Telephonic appearances"). Pursuant to LBR 9021-1(b)(1)(B), movant must serve and lodge a proposed order via LOU within 7 days of the hearing date. Debtor(s): TCAST Communications, Inc. Represented By Party Information Joseph A Eisenberg Thomas M Geher Movant(s): TCAST Communications, Inc. Represented By Joseph A Eisenberg Thomas M Geher 4/11/2013 11:59:49AM Page 4 of 4 Case 2:13-bk-18508-NB Doc 55 Filed 04/18/13 Entered 04/18/13 09:50:26 Desc Main Document Page 9 of 9 NOTICE OF ENTERED ORDER AND SERVICE LIST Notice is given by the court that a judgment or order entitled (specify): ORDER RE DEBTOR’S EMERGENCY MOTION FOR AUTHORITY TO USE CASH COLLATERAL ______________________________________________________________________________ was entered on the date indicated as entered on the first page of this judgment or order and will be served in the manner stated below: 1. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) B Pursuant to controlling General Orders and LBRs, the foregoing document was served on the following persons by the court via NEF and hyperlink to the judgment or order. As of (date) April 17, 2013, the following persons are currently on the Electronic Mail Notice List for this bankruptcy case or adversary proceeding to receive NEF transmission at the email addresses stated below. • Erin N Brady: [email protected] • Patricia A Cirucci: [email protected] • Glen Dresser: [email protected] • Joseph A Eisenberg: [email protected], [email protected]; [email protected];[email protected] • Thomas M Geher: [email protected], [email protected];[email protected] • Michael I Gottfried: [email protected], [email protected]; [email protected] • Kenneth Hennesay: [email protected] • Mary D Lane: [email protected], [email protected] • Dare Law: [email protected] • United States Trustee (LA): [email protected] • Pamela Kohlman Webster: [email protected] • Aleksandra Zimonjic: [email protected], [email protected]; [email protected]; [email protected]; [email protected] 2. SERVED BY THE COURT VIA UNITED STATES MAIL: A copy of this notice and a true copy of this judgment or order was sent by United States mail, first class, postage prepaid, to the following persons and/or entities at the addresses indicated below: Service information continued on attached page Service information continued on attached page 3. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment or order which bears an AEntered@ stamp, the party lodging the judgment or order will serve a complete copy bearing an AEntered@ stamp by United States mail, overnight mail, facsimile transmission or email and file a proof of service of the entered order on the following persons and/or entities at the addresses, facsimile transmission numbers, and/or email addresses stated below: Service information continued on attached page P L L R E G R E B & D E I R F T T O G U A D N A L W A L T A S Y E N R O T T A A I N R O F I L A C , S E L E G N A S O L 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
=== Instructions To Debtors’ Counsel: 11 U.S.C. §§ 506 & 522(f) issues ===
Instructions To Debtors’ Counsel: 11 U.S.C. §§ 506 & 522(f) issues See text highlighted in green below for Judge Bason’s procedures A. MOTION PRACTICE (USUAL PROCEDURE) Step 1, case commencement: File the plan with Attachment A. Serve the Plan per FRBP 2002, using the standard notice/cover sheet (F3015-1.02.NOTICE341CNFRM). Step 2, after obtaining appraisal: File motion(s) with supporting evidence, and serve per FRBP 7004. § 506, Lam motion: Local Form F 4003-2.4.JR.LIEN.MOTION § 506, non-Lam motion: Local Form F 3012-1.MOTION.VALUATION § 522(f), real property: Local Form F 4003-2.1.AVOID.LIEN.RP.MOTION § 522(f), personal property: Local Form F 4003-2.1.AVOID.LIEN.PP.MOTION Step 3, § 506/522(f) hearing(s) & order(s): After the hearing (or if there is no opposition/hearing) lodge your proposed order(s): § 506, Lam motion: Local Form F 4003-2.4.JR.LIEN.ORDER § 506, non-Lam motion: Local Form F 3012-1.ORDER.VALUATION § 522(f), real property: Local Form F 4003-2.1.AVOID.LIEN.RP.ORDER § 522(f), personal property: Local Form F 4003-2.1.AVOID.LIEN.PP.ORDER Step 4, confirmation order: The chapter 13 trustee lodges a proposed confirmation order with Attachment A (the trustee copies the PDF Attachment A from the most recent plan filed by the debtor). 11/28/2017 Instructions: liens affected by a) Motion or b) Plan, p. 1 B. PLAN ACTS AS THE MOTION (optional procedure: only for cases filed on or after 12/1/17) Step 1, case commencement: File a plan that serves as your 506/522(f) motion(s) – i.e., check the appropriate boxes on p.1 (to alert lienholders that you’re using the Plan as your 506/522(f) motion) and include Attachment B, C, or D as applicable. (a) serve the plan as usual: per FRBP 2002 without any evidence, using the standard notice/cover sheet (F3015-1.02.NOTICE341CNFRM) AND (b) serve affected lienholders per FRBP 7004 with the plan, the special notice/cover sheet (F3015-1.02.NOTICE341LIENCNRM), and the same evidence as you would use for a motion. Note: If you do not yet have an appraisal (or other evidence) then include a statement to that effect (e.g., attach a sheet stating, “Evidence to be provided with future amended plan”). Step 2, after obtaining appraisal (or other evidence): File and serve amended plan (same as Step 1) with evidence. Step 3, § 506/522(f) hearing: Follow your judge’s procedures about whether to have a separate hearing on this aspect of the plan (e.g., if there is an opposition then the judge might hold hearings at the same time as regular § 506/522(f) motions are heard, or the judge might address these issues at a preliminary confirmation hearing). Judge Bason’s procedures: The judge will address these issues initially at the confirmation hearing. If valuation is disputed, the judge will follow the same procedures as for regular motions under 11 U.S.C. §§ 506/522(f) (i.e., he will address with the parties whether to continue the matter for both parties to obtain appraisals, and, once appraisals have been obtained, how to determine valuation – e.g., by setting an evidentiary hearing, or by appointing a third appraiser as the court’s expert, or by reviewing the written record including declarations of each appraiser, or by some other method). Compensation: The judge will allow the same fees for addressing §§ 506/522(f) issues in the chapter 13 plan as for separate motions. For example, suppose the plan itself serves as three motions affecting three liens: requests to affect two liens under § 506(a), one of which is unopposed and the other resolved by stipulation, and a request to affect one lien under § 522(f) which is opposed. In that situation counsel could charge (in addition to the basic RARA fee of $5,000 or $6,000) “no-look” fees of $1,250 + $1,500 (the standard charge for such § 506(a) motions) plus the greater of $750 (the “no look” fee for a § 522(f) motion) or the fees for actual and reasonable time spent on the opposed § 522(f) motion at counsel’s hourly rates listed in the RARA. See section 2.9(b) of the Court Manual. Step 4, amended plan (if necessary): (a) If the court does not change your proposed valuations then you do not need to file an amended plan – your existing plan can be confirmed (subject to any non- 506/522(f) objections), so skip to Step 5. (b) If the court finds valuation(s) different from what you have proposed then you will need to file and serve an amended plan incorporating the new valuation(s), with amended Attachment(s) B, C, or D as applicable (instead of supporting evidence, you can attach a sheet stating “Valuation per court ruling” or the equivalent). Step 5, confirmation order: The chapter 13 trustee lodges a proposed confirmation order with Attachment B, C, and/or D as applicable (the trustee copies the PDF Attachments from the most recent plan filed by the debtor). Note: Judge Bason encourages attorneys not to use the Plan as a 506/522(f) motion until at least March of 2018 (until they get used to the other new forms and procedures). Thereafter, however, he encourages attorneys to use these procedures if they believe that would be more efficient – e.g., if multiple § 506/522(f) motions involve essentially the same evidence. All of the foregoing is subject to change as the court and counsel gain experience with the new procedures. 11/28/2017 Instructions: liens affected by a) Motion or b) Plan, p. 2
=== Judicial Variance Statement for Judge Neil W. Bason ===
Judicial Variance Statement for Judge Neil W. Bason Regarding LBR, Court Manual, and Forms September 11, 2021 Bankruptcy Judge BASON enforces the Local Bankruptcy Rules, Court Manual, and use of mandatory court forms; but here are a few clarifications and exceptions: A. Local Bankruptcy Rules (LBR): 1. 3001-1, Chapter 11 Bar Date Notice: The debtor should NOT serve the notice contemplated by LBR 3001-1. Instead the judge will prepare and issue and order after the initial chapter 11 status conference. The order will include special procedures for claims under § 503(b)(9). 2. 7016-1, Status & Pre-trial Conferences: Pre-trial stipulations must include, at the end, a line stating “SO ORDERED”; that document must be lodged via LOU; and a notice of lodgment must be filed. See LBR 7016-1(b)(1)&(3). 3. 7026-1(c)(3), Discovery Disputes: DO NOT file a motion; call the judge’s law clerk to arrange a telephonic conference and related procedures. 4. 9021-1(b)(3)(B), Orders Processed ASAP: Judge Bason does not wait 7 days to issue orders. B. Court Manual Sections: See above. Any other variances are determined on a case-by-case basis. C. Mandatory LBR Forms: Any variances are determined on a case-by-case basis. Any proposed variances by a party must be clearly shown by “redlining.” D. Optional Forms that Judge Bason Requires or Prohibits: 1. Avoiding Liens: (a) To avoid a junior lien on a principal residence, the judge requires use of local form F4003-2.4.JR.LIEN. MOTION and F4003-2.4.ORDER. (b) To avoid a judicial lien, the judge requires use of local forms F4003-2.1.AVOID.LIEN.RP.MOTION and F4003-2.1.AVOID.LIEN.PP.MOTION. 2. Chapter 11 Case Status Report: The judge requires Local Form F 2081-1.1.CH11.STATUS.RPT and in addition, in Subchapter V cases, the local form of status report for such cases. 3. Chapter 11 - Plans & Disclosure Statements: (a) Draft plans and disclosure statements must NOT BE SERVED (except on the US Trustee) until explicitly ordered by the judge, and (b) the judge usually holds a combined hearing on final approval of the disclosure statement and confirmation of the proposed plan (see Judge Bason’s posted Procedures for more information). 4. Chapter 11 - Individual Debtors: The judge requires use of local form F2081-1.2.MOTION.BUDGET, F2081-1.1.MOTION.CASH.COLLATERAL, and F2081-1.4.MOTION.UTILITIES, and encourages use of the other F2081-1 series of forms. 5. Chapter 11 - Professionals: Professionals are required to execute local form F2014-1.STMT.DISINTEREST.PROF (statement of disinterestedness) or in an individual Chapter 11 case it is permissible to use local form F2081-1.5.MOTION.EMPLOYMENT. 6. Chapter 11 - Cash Collateral: The judge requires use of local form F4001-2 (disclosures) regardless whether the use of cash collateral is by stipulation or motion. E. Other Forms or Format Required Only By Judge Bason: Please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov, "Judges," "Bason, N.," Instructions/Procedures," "Procedures"). Any other variances are determined on a case-by-case basis.
=== Procedures ( ===
Procedures of Judge Bason (Rev. 10/10/25) p. 1 of 30 The following procedures may be modified at any time without prior notice. CONTENTS I. II. URGENT MATTERS ........................................................................................................................................ 1 APPEARING VIA ZOOMGOV OR IN PERSON; NO RECORDING ........................................................................ 4 III. CONTACTING THE COURT’S STAFF ................................................................................................................ 4 IV. MOTION PRACTICE ....................................................................................................................................... 4 V. TRIAL PRACTICE (INCLUDING NOT ONLY TRIALS IN ADVERSARY PROCEEDINGS BUT ALSO ANY CONTESTED MATTER THAT WILL INVOLVE LIVE WITNESSES) ............................................................................................ 7 VI. MEDIATION .................................................................................................................................................. 9 VII. DEFINITIONS ................................................................................................................................................. 9 VIII. COMMON MATTERS. MOST OF THE FOLLOWING PROCEDURES ARE ORGANIZED BY SECTION OF THE CODE, OR RULE NUMBER. ..................................................................................................................................... 10 Suggestion: Use “Ctrl-F” to search for key terms (e.g., sections of the Bankruptcy Code such as “362”). I. Urgent matters A. Shortened time, generally. (1) File the motion/application papers. (2) Notify chambers by phone. Follow Rule 9075-1(b). Exception: For extraordinarily urgent matters, requiring a hearing on less than 48 hours’ notice, call chambers for further instructions per Rule 9075-1(a). B. Automatically shortened time. You can self-calendar the following motions on at least 14 days’ notice (you need not add 3 days for service via U.S. mail) without prior approval: 1. § 362(d): motions for relief from the automatic stay involving: (i) unlawful detainer actions; (ii) other bankruptcy filings or unauthorized transfers affecting the subject property; or (iii) default under an Adequate Protection Order (“APO”) (unnecessary if order may be issued ex parte under the terms of the APO); 2. § 362(c)/(j): motions to continue/impose a stay (§ 362(c)(3) or (4 , or to confirm the non-existence of the stay under (§ 362(j ; or 3. § 363(b) & (c): initial hearings on motions for use of cash collateral, DIP financing, or budget motions. Procedures: 1. amend the local notice form to state that oppositions must be filed at least five calendar days before your self-calendared hearing date. 2. file your motion with a proof of service on the following persons at least 14 days before the hearing date: Procedures of Judge Bason (Rev. 10/10/25) p. 2 of 30 a. the debtor, b. the debtor’s attorney, c. any trustee, and, for cash collateral, DIP financing and budget motions, the U.S. Trustee, and d. any party in interest who may be affected – for example: i. § 362(c)(3)&(4): when a debtor seeks to continue or impose the stay, all creditors and parties in interest should be served and the debtor should request imposition of the stay against all persons, because staying some persons and not others is inappropriate except in very rare situations; ii. § 362(d)(4)/“in rem” relief: the “original” borrower or similar parties (see Rule 4001-1(c)(1 ; and iii. § 363(c) cash collateral: all persons who may assert a cash collateral interest. Caution: Be sure your service is adequate – see below under “Common Matters” > “Service.” C. Reconsideration motions. (1) Ask other party’s consent. If the relief that you want the judge to reconsider was granted at the request of a third party (e.g., if a chapter 13 case was dismissed at the request of the Chapter 13 Trustee), the motion must describe your efforts to obtain that third party’s consent to reconsideration and any response. (2) No self-calendaring, or “negative notice”. List the hearing date as “TBD” on the motion. Call chambers to advise that the motion has been filed. The judge reviews these motions to determine when and if a hearing will be held. (3) Provide all papers. Your reconsideration motion must include, as an exhibit, a copy of whatever papers you propose to file if the motion is granted (e.g., if the motion seeks reconsideration of dismissal of a case for failure to file timely papers, those missing papers must be attached). D. Discovery disputes. Do not file written motions to compel or quash discovery. First meet and confer (per Rule 7026-1(c . Then call the judge’s law clerk to arrange a telephonic conference and related procedures (e.g., the judge may permit or require a pre-conference summary of the dispute and/or copies of relevant documents, such as discovery requests or responses). At the telephonic conference the judge will determine whether to require written motions, briefs, or other documents, or alternatively the judge may rule on oral motions and oppositions without the need for any such papers. See, e.g., Tamari v. Bache & Co. (Lebanon) SAL, 729 F.2d 469, 472 (7th Cir. 1984) (written discovery motion not required when party receives adequate notice); Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir. 1974) (oral discovery order equally effective as written order); Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 558 (8th Cir. 1992) (same); 7-37 Moore’s Federal Practice - Civil § 37.42[3] (2018) (same). See also LBR Procedures of Judge Bason (Rev. 10/10/25) p. 3 of 30 1001-1(d), FRBP 9006 & 9013, and FRCP 16(b)(3)(B)(v), 26(b)(2)(C), 43(c)&(e) & 52(a) (incorporated by FRBP 7052, 9014(c) & 9017); and see generally In re Nicholson, 435 B.R. 622, 635-36 (9th Cir. BAP 2010) (discussing when evidentiary hearing is required), abrogated on other grounds, as stated in In re Elliott, 523 B.R. 188 (9th Cir. BAP 2014). Any request for sanctions relating to a discovery dispute must be made by separate noticed motion. E. Applications for Rule 2004 Examination/Production of Documents. The judge generally will grant ex parte applications for Rule 2004 examination and/or the production of documents immediately, without a hearing or any substantial opportunity to object in advance, unless such applications appear deficient on their face. Any party seeking to limit the scope of the examination or quash the order altogether should file an appropriate motion requesting such relief. F. Temporary Restraining Orders (“TROs”). Parties in interest must receive the TRO papers at least 72 hours prior to any TRO hearing (absent truly exceptional circumstances). Any request for a TRO or other injunctive relief requires an adversary proceeding, so a complaint must be filed prior to the hearing. See Rule 7001(7). G. “First day” matters. For common first day matters see Local Form F 2081-1.1.CH11.STATUS.RPT. Note that the judge’s form of bar date order addresses claims under § 503(b)(9). Please pay special attention to Rules 4001(b)-(d), 6003 & 6004, 2014-1, 2081-1 & 4001-2(e), 5075-1 & 6004-1. Caution: Please also pay special attention to notice to all interested parties and see below under “Common Matters” > “Service.” In addition, declaration(s) should provide sufficient information to evaluate the impact on parties in interest, such as: (1) the current cash situation; (2) asset/debt information to the extent that the bankruptcy schedules and Statement of Financial Affairs (“SOFA”) either have not been filed or do not reflect actual values or require explanation; (3) connections between the debtor and any prospective purchaser or person providing financing; and (4) unless unknown, the chapter 11 exit strategy of the debtor (e.g., sale as a going concern, liquidation of assets, continuation of business with infusion of capital, etc.). H. Proposed Orders. 1. Quick. The judge often issues orders immediately (i.e., without waiting the 7 days per Rule 9021-1(b)(3)(B , e.g., when the order is on a standard form, or otherwise does not appear to warrant any delay. So if you believe that a proposed or issued order goes beyond (a) the judge’s ruling or (b) the relief requested in a “scream-or-die” motion, and if you also believe that the matter is too urgent to handle through a written motion, you should call chambers immediately for further instructions. Procedures of Judge Bason (Rev. 10/10/25) p. 4 of 30 2. Short. Proposed orders should be short. Stipulations, tentative rulings, or other documents may be incorporated by reference if appropriate (by referring to their docket number). Do not attempt to repeat the text of those documents in the proposed order – that just (1) causes extra work for the court and parties who have to read the same text again and (2) leads to transcription errors or omissions. II. Appearing via Zoomgov or in person; no recording A. Parties: Unless otherwise ordered, all parties may appear via Zoomgov or in person for all non-evidentiary hearings, and must appear in person for evidentiary hearings. See Rule 43(a) (incorporated by Rule 9017). Two sample forms of order for video trials are posted on the judge’s portion of this Court’s website (at www.cacb.uscourts.gov). B. Public: Members of the public, including the press, are always welcome in person (except in rare instances when the courtroom is sealed) and they may also listen via telephone to non-evidentiary hearings, but must not view any hearings via video (per mandate of the AO). C. No recording: Any audio or video recording is strictly prohibited. III. Contacting the court’s staff You may not communicate with court staff regarding any cases (see Rule 9003(a) and Rule 5-300(C) of Cal. R. Prof. Conduct) except notify the court of: D. emergencies: that you will file an opposition to an emergency or ex parte matter or will contest a proposed form of order (do not discuss the contents of the opposition/alternative proposed order); E. settlement: that a matter has been settled (not necessary if a settlement stipulation/motion has been filed at least 1 week prior to the hearing); F. lodged orders: that a proposed order has been pending for more than 7 days, or is required before that time; or G. other: as provided elsewhere in these Procedures. IV. Motion practice A. Calendaring. Except for (a) Urgent Matters (see above) and (b) matters that are eligible for self-calendaring (see the judge's posted Self-Calendar Procedures), all matters must be calendared by calling the judge’s courtroom deputy. B. NO JUDGE’S COPIES. The judge prefers to review documents online. Any “judge’s copy” will only be recycled, so please do not deliver them. C. Late papers. If your opposition or reply papers are filed late, you must include a brief explanation (and a request to accept such papers). D. Tentative rulings. It is your responsibility to check for tentative rulings. Note: Some browsers do not automatically refresh (so you will not see the latest tentative rulings). To fix that issue, try “Ctrl-F5.” Procedures of Judge Bason (Rev. 10/10/25) p. 5 of 30 1. When to check for tentatives. Starting approximately 48 hours before the scheduled time of the hearing (not counting weekends/holidays), the court will post tentative rulings on the judge’s calendar. If nothing is posted then you should continue checking periodically. Exceptions: No tentative rulings are posted for (a) the chapter 13 confirmation calendar and (b) the Chapter 13 Trustee’s motion calendar (generally motions to dismiss). 2. Parties’ options in response to tentatives. The tentative ruling will specify whether appearances are required. If no appearance is required but you wish to contest the tentative ruling then you must do the following: (a) telephone the judge’s law clerk and (b) notify all other interested parties of your intent to appear at the hearing. Deadline: The deadline to do the foregoing is ½ of the time between when the tentative ruling was first posted and the hearing – e.g., if the tentative ruling was first posted 48 hours before the hearing, you must notify opposing counsel at least 24 hours before the hearing. If the tentative rulings have been re-posted, Calendar no. 1 will note when the calendar was first posted (and for those matters on which the tentative rulings have been added, the tentative ruling will state that it has been revised). If you contest a tentative ruling without following these procedures, your request generally will be denied (in rare instances the judge has been persuaded, despite non-compliance with these procedures, to continue the matter – for that reason parties sometimes arrange to listen in on the hearing in case someone appears). 3. Last minute APOs. See below under “APO” about when APOs supersede the tentative ruling. I. Priority. You may request priority when checking in with the judge’s court recorder just before the calendar call – you must provide a reason. J. Second call. You may request that your matter be heard toward the end of the calendar (“second call”) by either (1) calling the judge’s law clerk at least 15 minutes prior to the start of the hearing or (2) making the request personally to the court recorder before the calendar call. The judge normally will honor requests that are supported by a reasonable explanation, state the estimated time of arrival, and do not unduly inconvenience other parties. K. Testimony. Declarants normally are not required to be present at hearings on motions. Oral testimony seldom is required or allowed unless the judge has agreed in advance to hear oral testimony. If live testimony is essential (either on direct or cross-examination), be sure first to notify opposing counsel and second to call the judge’s law clerk to obtain permission. Procedures of Judge Bason (Rev. 10/10/25) p. 6 of 30 L. Use of electronic devices. 1. Zoomgov hearing etiquette: (a) wait until the judge calls on you, so everyone is not talking at once; (b) when you first speak, state your name and, if you are an attorney, whom you represent (do not make your argument until asked to do so); (c) when you make your argument, please pause from time to time so that, for example, the judge can ask a question or anyone else can make an objection; (d) if the judge does not see that you want to speak, or forgets to call on you, please say so when other parties have finished speaking (do not send a “chat” message, which the judge might not see); and (e) please let the judge know if he mispronounces your name or uses the wrong title (“Doctor,” “Ms., “Mr.” etc.). 2. In-person etiquette: Wireless electronic devices (e.g., smart phones or laptops) may be used in the courtroom provided that (a) they are silent, (b) they are not used for audio or visual recording (unless explicitly approved by the court), and (c) they are not used to communicate with witnesses during ongoing proceedings. The password for the court’s wireless internet service may be obtained from the court recorder. Bluetooth devices should not be activated at or near the lectern. 3. More limitations: At any time, the judge may prohibit or further restrict use of such devices. M. Fostering attorney development and promoting diversity. The judge has adopted the following procedures. His goals are to foster the professional development of attorneys who may be inexperienced in some matters (e.g., trial practice or oral arguments), and to address possible implicit or explicit biases (e.g., clients who might believe that their chances in court would be improved with an attorney who is male or of a particular background, race, or other characteristic). 1. Two attorneys may argue. Many courts allow only one attorney per party to address the court. The judge generally will permit attorneys to switch back and forth at will (so that the attorney who is less experienced can focus on discreet tasks, and can have the “backup” of a more experienced attorney). 2. Two attorneys may bill. On the one hand, Bankruptcy Courts have an independent duty to scrutinize professionals’ fee applications and to look for excessive time or billing rates (among other things). On the other hand, that does not mean that any time two attorneys for a party confer then only one of them may bill, or that any time two attorneys argue in court it must be wasteful. To the contrary, the judge’s experience in private practice was that some of the most productive and effective representation of Procedures of Judge Bason (Rev. 10/10/25) p. 7 of 30 clients’ interests occurred when he was conferring with one or more colleagues, or when different trial or hearing functions were allocated to different attorneys. Of course, those things are easily overdone, and professionals always must use good billing judgment (see, e.g., the judge’s limits on non-working travel time, set forth elsewhere in these procedures). But the judge encourages more experienced attorneys to be alert to “win win” opportunities to (a) enhance value (or at least provide the same value) by (b) conferring, delegating to, and/or appearing with less experienced colleagues. V. Trial practice (including not only trials in adversary proceedings but also any contested matter that will involve live witnesses) A. Status conferences. Use of court-approved status conference report forms is strongly recommended. B. Pretrial conferences. Pretrial stipulations must include, at the end, a line stating “SO ORDERED”; that document must be lodged via LOU; and a notice of lodgment must be filed. See Rule 7016-1(b)(1)&(3). Most trials in bankruptcy cases are streamlined (to keep costs down, and to avoid delay or impairment of reorganization or other resolution, which typically would harm all parties in interest). Unless otherwise arranged with the judge, the procedure is (1) to have pretrial conferences only a week or so before trial, (2) to accept direct testimony by declaration (except for hostile or unavailable witnesses), subject to live cross examination and redirect (see In re Gergely, 110 F.3d 1448, 1451-52 (9th Cir. 1997); In re Adair, 965 F.2d 777, 779-80 (9th Cir. 1992 , and (3) to have an expedited schedule for motions, exhibit delivery, etc. as set forth below. You must state in the pretrial stipulation (if not at earlier status conferences) if you prefer different procedures (e.g., live direct testimony). C. Motions in limine/pretrial motions. Disclose all anticipated motions in the joint pretrial stipulation (Rule 7016-1(b)(2)(F ; file any such motions at least 72 hours before trial (counting only court days); and serve them via email or other immediate means. Unless otherwise ordered, any opposition may be made orally at the commencement of trial, at which time the judge will rule on them. D. Exhibits. In preparing the exhibit list and actual exhibits (Rule 7016-1(b)(2)(D : 1. label clearly: e.g., plaintiff 1, 2, 3, etc. and defendant A, B, C … AA, AB, AC, etc. (not AA, AAA, AAAA, etc.) (see Local Forms F 9070-1.1.EXHIBIT.TAG.PLAINTIFF and the equivalent for defendants); 2. avoid duplication: e.g., if defendant's exhibit "G" is the same as plaintiff's exhibit "3" then replace exhibit G with a page stating "see exhibit 3: stipulated into evidence for use by all parties"; Procedures of Judge Bason (Rev. 10/10/25) p. 8 of 30 3. either electronic (preferred) or paper: electronic records are preferred, but any format is acceptable as long as it is user-friendly and, for electronic records, compatible with the Court's security systems (e.g., for electronic exhibits, PDFs filed via CM/ECF or emailed to [email protected], and consider combining multiple exhibits with "bookmarks" for each exhibit, or conversely disaggregating files that are too large; as for paper exhibits, it is helpful to use tabs and 3-ring binders); 4. delivery: deliver exhibits (including direct testimony by declaration, unless excused by the court) to other parties no later than two court days after the pretrial conference is concluded; and simultaneously deliver exhibits to the Court either via email to [email protected] (the preferred method, by arrangement with chambers) or other approved means (for paper exhibits, two copies are required: one for the judge to mark up, and one for the court's official record); 5. impeachment documents: to present impeachment documents, first show them to opposing counsel (so they can raise any objections) and to the court (via email to [email protected], or any other method authorized by the judge); then when permitted to show the witness you can either use a “share screen” function or send an electronic version to the witness, or provide a paper copy to the witness; 6. make additional copies of any paper exhibits for use at trial (i) for yourself, (ii) for other counsel (and/or other parties appearing in pro per), (iii) for the witness(es), (iv) for the judge, and (v) for the court’s records; 7. post-trial: pick up any paper copies of your exhibits (by arrangement with chambers) within 7 days after the later of (i) the expiration of the time period for filing appeals or (ii) resolution of any final appeal (otherwise, the judge may dispose of the exhibits). E. Calendar changes. Requests for continuances of trial dates, even by stipulation, may be denied. The judge may schedule several cases for trial one week per month, usually starting at 9 a.m. on Monday of the trial week. The court may contact counsel shortly before the scheduled trial date to address the sequence in which the scheduled trials will be held, and other procedural matters. If you reach a settlement, please call the judge’s chambers promptly and, on or before the first date set for trial, either confirm in writing that the settlement has been reduced to a writing signed by all parties or their counsel or alternatively put the settlement on the record. Procedures of Judge Bason (Rev. 10/10/25) p. 9 of 30 F. Trial. Opening statements are welcome (but usually are not necessary). Counsel should be prepared to complete closing argument as soon as the parties have rested. G. Fostering attorney development and promoting diversity. See same issue under “Motion Practice” above. VI. Mediation A. B. C. Assigning matters to mediation. The Judge frequently orders mediation even when parties do not consent. He does not assign matters to other Bankruptcy Judges for mediation unless specific cause is shown for doing so (e.g., if one or more parties/counsel appear to be so entirely unrealistic about a virtually certain outcome, even after prior attempted mediation, that they may need to hear it from another Bankruptcy Judge). Acting as mediator. The judge’s policy is to defer to the judge assigning the matter to mediation to determine whether a judge (rather than an attorney or other person) should be assigned as a mediator. Procedures. When acting as a mediator the judge establishes procedures in advance, either via email or an initial status conference. Sample procedures are: (1) a short summary from each party emailed at least a week prior to the scheduled mediation (e.g., a 3 page letter brief served on each party plus an addendum of up to 2 pages of "Mediator's Eyes Only" discussion) and (2) key documents (e.g., up to 50 pages of excerpts and/or complete documents, preferably served on all parties, but if appropriate then some or all of the documents can also be "Mediator's Eyes Only"). All parties must sign a confidentiality agreement (local form 708 or an acceptable alternative), and parties who would not otherwise be subject to this district’s mediation rules must agree to be bound by them (or an acceptable alternative). VII. Definitions Unless the context suggests otherwise, references to a “chapter” or “section” (“§”) refer to the United States Bankruptcy Code, 11 U.S.C. § 101 et seq. (the “Code”), a “Rule” means the Federal Rules of Bankruptcy Procedure (“FRBP”), Federal Rules of Civil Procedure (“FRCP”), Federal Rules of Evidence (“FRE”), or Local Bankruptcy Rules (“LBR”), and other terms have the meanings provided in the Code and the Rules. A motion for “reconsideration” means a motion under Rule 9023, 9024, 50(b), 52(b), or 54(b) (the latter three incorporated by Rules 7052, 7054, 9014(c), and 9015(c . The “AO” means the Administrative Office of the U.S. Courts. Procedures of Judge Bason (Rev. 10/10/25) p. 10 of 30 VIII. Common matters. Most of the following procedures are organized by section of the Code, or Rule number. A. Service: Please remember that initial motion papers are treated like a complaint for purposes of service (see Rules 9014(b) & 7004) and: 1. Whom to serve: Non-individuals generally must be served “Attn: Officer or Managing/General Agent” or a similar phrase (Rule 7004(b)(3 , and identify the capacity of each person or entity listed (e.g., “Trustee,” “Secured Creditor,” or “Top 20 Unsecured Creditors”). Note: Service on nonbankruptcy counsel generally is not sufficient. See In re Villar, 317 B.R. 88 (9th Cir. BAP 2004). 2. Where to serve: Addresses often can be found on (a) the California Secretary of State website, or (b) under “Government Units’ Mailing Addresses” (posted at www.cacb.uscourts.gov under “Bankruptcy Resources”), or (c) for FDIC-insured institutions, at http://research.fdic.gov/bankfind/. Exceptions: A party's most recent designated address generally governs, including (a) the address for notices (not for payment) listed on its proof of claim, or (b) if the party has appeared by an attorney then the attorney should be served (see Rule 2002(g . 3. How to serve FDIC-insured entities. Per Rule 7004(h) service must be via certified mail, “Attn: Officer.” (Emphasis added.) 4. Note: Do not rely on the court’s limited resources to double- check that your service was adequate. If a party in interest was not properly served and was deprived of an opportunity to object to your motion, then relief may include voiding any order granting the motion, reduction in allowed fees, sanctions, etc. B. § 109(g): dismissal with a bar of 180 days or longer. The judge has in rare instances dismissed cases with a bar of longer than 180 days. See In re Cuevas (Case No. 2:14-bk-32359-NB), dkt. 89 at p. 4:11-20 & passim. C. § 302: joint cases; bifurcation. Spouses sometimes separate or divorce during the pendency of a bankruptcy case. The judge issued an order setting forth procedures for a joint chapter 13 case to be "bifurcated" with one spouse contemplating that she would then convert her case to chapter 7, but the bifurcation motion was later withdrawn. See In re Willis (Case No. 2:12-bk-25173-NB, dkt. 39, 41, 45, 47, 48). D. § 327- § 331: Employment and Compensation of Professionals. 1. Form F 2014-1 required. Professionals are required to execute local form F 2014-1.STMT.DISINTEREST.PROF (statement of disinterestedness), except when using local forms F 2081- 2.5.MOTION.EMPLOY.GEN.COUNSEL or F 2081- 2.5.MOTION.EMPLOY.OTHER (the forms are designed for individuals, but the judge encourages their use in non-individual Procedures of Judge Bason (Rev. 10/10/25) p. 11 of 30 cases with minor changes such as striking the word “individual” in the title). Note: the judge prefers that local form F 2014-1 not repeat the employment application – instead simply say "see application" or the like (reasons: proposed professionals frequently do not track the language of Rule 2014, so the judge requires use of the form so that someone verifies the elements of that rule under penalty of perjury, and so the court staff does not have to do a line- by-line comparison with each element of the Rule). 2. Standard terms. The judge typically adds the following to orders authorizing employment: Notwithstanding any other provisions, Judge Bason’s standard terms apply (unless struck through): (a) employment is per 11 U.S.C. § 327 not § 328 (i.e., all aspects of fees are reviewed for reasonableness); (b) payment only per 11 U.S.C. § 330(a) - no lien or superpriority claim is allowed (except as explicitly allowed – e.g., realtor commissions are usually percentages approved upon employment and paid from proceeds of approved sales); (c) maximum 2 hours per day of non-working time (e.g., travel, or waiting for matter to be called) absent an adequate explanation; (d) no buyers’ premium for auctioneers; (e) no dual agency; (f) all matters relating to the professional’s engagement, compensation and costs shall be resolved in this court, notwithstanding any provisions for arbitration, choice of venue, or the like, (g) any indemnification, limitation of damages or the like is ineffective; (h) billing judgment and bankruptcy limitations are mandatory, keeping in mind that a debtor in possession/trustee is acting for the benefit of creditors/the estate; and (i) notwithstanding any waivers, including as to disclosures or conflicts, federal bankruptcy requirements govern, and any waiver can apply only as against Debtor, not the bankruptcy estate. See, e.g., 11 U.S.C. § 327(a) (professionals may not “hold or represent an interest adverse to the estate”); In re Strand, 375 F.3d 854 (9th Cir. 2004) (billing judgment); In re Circle K Corp., 279 F.3d 669 (9th Cir. 2002) (fee review under § 330 not § 328); In re Garcia, 335 B.R. 717, 723-29 & n. 6 (9th Cir. BAP 2005) (billing judgment); In re Triple Star Welding, Inc., 324 B.R. 778, 790-91 (9th Cir. BAP 2005) (full disclosure is mandatory, and debtor Procedures of Judge Bason (Rev. 10/10/25) p. 12 of 30 cannot waive conflicts on creditors’ behalf); In re AWTR Liquidation, Inc., 548 B.R. 300, 327-30 (Bankr. C.D. Cal. 2016) (cost/benefit analysis when dealing with constituencies whose interests may diverge). Note: The prohibition on buyers’ premiums or dual agency should not be interpreted as making any economic change in the compensation arrangement. The auctioneer/real estate broker and the debtor can adjust what is paid by the debtor such that the net compensation is the same. But, economics aside, the judge has ruled that buyers’ premiums and dual agency are prohibited. See generally In re Ebuehi (Case No. 2:18-bk-20704-NB), dkt. 281, at PDF pp. 9-10 (explaining problems with dual agency). Exception: In a few cases the judge has been persuaded to permit an agent at one office of a large brokerage firm to represent the bankruptcy estate, and a different agent at another office of the same brokerage firm to represent the other side of the transaction, provided that there is a declaration confirming that the two agents/offices will not share any material dollar amount of their compensation, and subject to having to provide additional evidence that negotiations were conducted at arm’s length. See, e.g., In re FAME Housing Corporation (Case No. 2:24- bk-13431-NB), dkt. 104 at p. 4, para. 6. 3. Conflicts Checks/Ethical Walls: Time spent identifying, clearing and avoiding conflicts generally is not compensable. The judge does not expect counsel to run every creditor and party in interest through a conflicts check, but at a minimum counsel should include in their conflicts check any party who has a major interest in the case (e.g., major unsecured creditors, secured creditors, major equity security holders / owners, officers and directors, landlords / lessors, and other professionals retained in the case). Counsel should disclose connections and potential conflicts with any such party, including anticipated future conflicts. 4. Retainer paid by third party (a “Funder”). Judge Bason requires parties to submit, with any proposed employment application, declarations and/or briefs from (a) proposed counsel and (b) any Funder(s) addressing the ethical concerns involved whenever a retainer is paid by a third party. See Cal. Rule of Prof’l Conduct 1.8.6; In re 9469 Beverly Crest, LLC (Case No. 2:19-bk-20000- NB, dkt.44). Declaration(s) must address each of the following issues (failure to address all of the following will result in the Procedures of Judge Bason (Rev. 10/10/25) p. 13 of 30 matter being set for hearing or the hearing being continued with instructions to submit supplemental declaration(s : a. Connections. The Funder and Debtor both must sign Local Form F 2014-1.STMT.DISINTEREST.PROF (statement of disinterestedness), clearly marked up to reflect that it is being signed by a Funder and Debtor rather than by a Professional. Note: In the past this Court has simply directed Funders and Debtors to disclose all connections within the scope of Rule 2014 (Fed. R. Bankr. P.), but those persons typically failed to address all the elements of that rule, so now this Court is requiring use of the form. The questions on the form may be answered, if appropriate, by referring to specific disclosures already on file, e.g., in the bankruptcy schedules. b. Terms. Are the funds advanced by any Funder(s) on behalf of Debtor intended to be a loan, equity contribution, or something else? If these things are documented, that should be attached. If not, each Funder should provide a declaration describing any applicable terms. c. Informed consent of Funder(s). Has each Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with Debtor, not the Funder(s)? Who provided such advice: independent counsel, or Debtor’s proposed counsel (and, if the latter, was each Funder given the opportunity to obtain independent counsel)? Has each Funder given informed consent? Are those things in writing? If so, that should be attached. If not, the Funder(s) declaration(s) should address these things. d. Other considerations. Has proposed counsel demonstrated or represented to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 109 B.R. 641 (Bankr. D. Vt. 1989); In re Hathaway Ranch Partnership, 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995). 5. Compensation for Loan Modifications. The judge has ruled orally that, if attorney fees for loan modification services are subject to review by the bankruptcy court (including fees that are “no look” absent any objection), then they are not subject to the restrictions in California Civil Code § 2944.7 (prohibiting “any compensation until after the person has fully performed each and every [proposed] service”) (emphasis added). Reasons: The essence of Procedures of Judge Bason (Rev. 10/10/25) p. 14 of 30 bankruptcy is debt adjustment (including loan modification), and the Bankruptcy Code contemplates “paying reasonable compensation in advance” for many such services. Lamie v. U.S. Trustee, 540 U.S. 526, 537-38 (2004) (emphasis added). If California law were to prohibit such advance payments, that would be contrary to the bankruptcy system, and many consumer bankruptcy fees would be either uncollectible or discharged if attorneys had to wait until the conclusion of their services to attempt to collect. Moreover, the California statute’s safeguard against unwarranted fees appears to be unnecessary in the bankruptcy context, given given the careful supervision of fees in the bankruptcy system. Therefore, the judge has ruled that the California statute should be construed not to bar such fees; and alternatively if the statute were construed broadly then it would be void under the supremacy clause of the U.S. Constitution. See, e.g., Quesada v. Herb Thyme Farms, Inc., 62 Cal.4th 298, 312-324 (2015) (discussing construction of State law, and implied preemption); and compare In re Choe, 2016 WL 639350 (State Bar Ct., Review Dept.), at, e.g., *5 (flat fee of $20,000 for loan modification was disallowed by bankruptcy judge, who also held that such “egregious” fee violated Civil Code § 2944.7) and *21 (rejecting “dishonest attempts to fall within the ‘no look’ fee amount” and evasion of bankruptcy court review of fees). E. § 362: Automatic Stay. 1. Adequate Protection Orders (“APOs”). a. Use the local form APO attachment. The judge requires the use of the local form of adequate protection attachment – that form may be supplemented or modified, but use of the form facilitates the court’s review by showing how the parties have departed from the standard form. b. No in rem APO unless cause shown. Generally, the judge will not approve an APO provision that would be effective despite any subsequent bankruptcy case (unless there is sufficient cause for “in rem” relief such as § 362(d)(4 . c. No automatic termination of the stay upon default or conversion to Chapter 7. Generally, the judge will not approve an APO provision that would automatically terminate the automatic stay, without any court order, after a default or conversion (at least as against real property, or other property of a type that might have equity by the time of any termination of the stay). The judge generally will limit any such automatic termination of the stay by requiring the usual procedures to be followed (declaration Procedures of Judge Bason (Rev. 10/10/25) p. 15 of 30 of default, and lodging a proposed order terminating the automatic stay). d. Last minute APOs. When an agreed APO has been lodged (not just signed and filed on the docket, but lodged with the Court), then appearances are not required at the hearing even if the tentative ruling (posted prior to when the APO was lodged) states that appearances are required. 2. Broad scope of automatic stay. See In re Korean Western Presbyterian Church of Los Angeles (Case No. 2:20-bk-11675- NB), dkt. 124 (disputes over governance of debtor were so intertwined with control of debtor’s property that they came within scope of § 362(a)(3), and bankruptcy court had “arising in” jurisdiction and authority to determine which faction controlled debtor, but the stay would be modified to permit pending litigation on that issue to proceed in State Court). 3. Relief that applies despite future bankruptcy cases ("in rem" or "ex parte" relief). a. Service. See Rule 4001-1(c)(1) (service on “original borrower” etc.). b. Form of order. First, the judge generally will require that the order include a copy of the tentative ruling which typically grants such relief under 11 U.S.C. § 362(d)(4) and/or the reasoning of In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) and/or In re Choong (Bankr. C.D. Cal., Case No. 2:14-bk-28378-NB, dkt. 31), as applicable. Second, the order usually will provide that the court “does not make” a finding that the debtor was involved in the scheme unless (i) there is an adequate showing that the debtor was involved, (ii) there is very prominent notice (such as a separate heading in a supporting memorandum of points and authorities) that the movant seeks an express finding that the debtor was involved in the scheme, and (iii) there is no persuasive opposition. The reason for requiring such prominent notice is that “hijacking” cases are prevalent, and an innocent debtor would not know that there is any reason to respond to a motion seeking in rem relief as to Blackacre if the debtor has no interest in Blackacre. 4. § 362(b)(3): postpetition transfer of title. If a foreclosure sale occurs pre-petition but the trustee’s deed upon sale is recorded within the 15-day period provided by Cal. Civ. C. § 2924h(c) then the post-petition perfection etc. relates back and does not violate the automatic stay. See 11 U.S.C. §§ 362(b)(3) & 546(b); In re Hayden, 308 B.R. 428 (9th Cir. BAP 2004); In re Bebensee-Wong, Procedures of Judge Bason (Rev. 10/10/25) p. 16 of 30 248 B.R. 820 (9th Cir. B.A.P. 2000); In re Garner, 208 B.R. 698 (Bankr. N.D. Cal. 1997). Update: Under amended Cal. Civ. Code § 2924m(c)&(f), the automatic stay did not apply to the postpetition finalization of a prepetition foreclosure sale to the prepetition high-bidder. In re Stephens, 661 B.R. 948 (Bankr. C.D. Cal. 2024). 5. § 362(c)(3): Termination of automatic stay 30 days after filing 2d bankruptcy case in one year. The judge follows In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011) (if automatic stay is not continued beyond 30 days then it terminates in all aspects, i.e., not only as to the debtor individually but as to all parties and the bankruptcy estate). See In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision). The judge recognizes that termination of the automatic stay may harm creditors, or otherwise undermine important bankruptcy policies, and therefore if the 30- day period has expired without continuation of the stay then one of two remedies may be appropriate: (a) if it appears that a plan can be confirmed before irreparable harm occurs, then the binding effect of the plan might be a sufficient substitute for the lack of an automatic stay (see § 1327(a , or alternatively (b) the court can dismiss the bankruptcy case on its own motion and (generally) without a bar to filing another bankruptcy case. See Hernandez (2:11-bk-53730-NB, dkt. 40) pp. 8:4-10:16. 6. § 362(c)(3) or (4): no favoritism between creditors. If a debtor meets the standards established by Congress in § 362(c)(3) or (4) (as applicable), then the judge believes it is appropriate to continue or impose the stay as to all creditors, rather than as to a single creditor. See In re Rodriguez, case no. 2:25-bk-16676-NB, docket #25. 7. § 362(d): relief from the automatic stay in other bankruptcy cases – past or pending. If there is a sufficient pattern of sham transactions then, in rare instances and subject to certain procedural protections which may include an adversary proceeding, the judge has been persuaded that the court has authority to issue a declaratory judgment that any documents that purport to implicate the automatic stay in any past or pending bankruptcy cases are rebuttably presumed to be shams, and therefore the automatic stay does not actually apply, pursuant to FRBP 7001 and 11 U.S.C. §§ 105(a) and 362(d). See generally In re Van Ness, 399 B.R. 897 (Bankr. E.D. Cal. 2009); In re Ervin (2:14-bk-18204-NB, docket no. 311). This Court recognizes that in the context of a foreclosure of real estate some title companies might not be sufficiently comfortable with any such judgment to Procedures of Judge Bason (Rev. 10/10/25) p. 17 of 30 insure title. But that can be cured later, after the foreclosure. The point is that repeated (sham) transfers of title, including back-dated transfers, can endlessly delay foreclosure unless a foreclosing creditor can proceed with the foreclosure without fear of sanctions for violating the automatic stay, and the declaratory judgment accomplishes that purpose. Thereafter, if the title company or the foreclosing creditor needs “belt and suspenders” relief in the form of an additional order, they can file and serve a motion seeking annulment of any stay that purportedly did exist. 8. § 362(d): relief from the automatic stay that continues to be effective despite future bankruptcy cases (“in rem” relief). a. "Hijacking" or "dumping" cases. The judge has ruled that the court has the authority to grant "in rem" relief (under § 362(d)(4) or other authority) even if the debtor was not a part of the “scheme” to hinder, delay or defraud creditors. See In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017). b. Post-foreclosure. The judge has ruled that, notwithstanding In re Ellis, 523 B.R. 673 (9th Cir. BAP 2014), after a foreclosure relief is available under 11 U.S.C. § 362(d)(4). See In re Choong (case no. 2:14-bk-28378-NB, docket no. 31). c. Situations that are not within § 362(d)(4): The judge has been persuaded in some cases to grant "in rem" relief in favor of (i) landlords or (ii) persons with an interest in personal property (e.g., vehicles). The grounds for such relief are the broad power to grant "relief" under § 362(d) including "ex parte" relief under Rule 4001, and/or under § 105(a), and/or the court's inherent powers, and/or stare decisis (because courts granted such relief prior to enactment of § 362(d)(4), and nothing in the legislative history indicates an intent to overrule that practice). See In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017). 9. § 362(d): motions for relief and In re Smith; In re Perl. The judge does not follow In re Smith, 105 B.R. 50 (Bankr. C.D. Cal. 1989) (neither stay of acts against property nor stay of acts against debtor in personam was sufficient to prevent postpetition eviction), for the reasons stated in In re Ramirez (Case No. 2:15-bk-13102-NB, dkt. 57), except to the extent required by In re Perl, 811 F.3d 1120 (9th Cir. 2016) (debtor had no property interest post-foreclosure after judgment and writ of possession, so automatic stay did not protect debtor from eviction). 10. § 362(d): divorce and relief from the automatic stay. Because of the risks to creditors from any property division or characterization Procedures of Judge Bason (Rev. 10/10/25) p. 18 of 30 of property (as separate or community property), the judge usually grants only limited relief by modifying the automatic stay such that any proposed disposition of property must be presented as a settlement under Rule 9019. See In re Sandoval (Case No. 2:17- bk-10379-NB), dkt. 58, 100. 11. §362(d): mootness. The judge has ruled that a motion for relief from the automatic stay is not mooted even when the tentative ruling is that the stay no longer exists, for the following reasons: a. Multiple, alternative grounds for relief should all be reached. When a motion seeks the same relief on multiple alternative grounds, all of those grounds usually should be ruled on because a tentative or final ruling on any one ground might be reversed or altered later on. For example, movants often seek a ruling that the automatic stay does not prevent them from pursuing their remedies both (i) because the stay does not apply (e.g., after dismissal of the bankruptcy case, per 11 U.S.C. §§ 349(b)(3), 362(c and alternatively (ii) because relief from the stay is appropriate (under 11 U.S.C. § 362(d . If the first ground later turns out to be reversed or altered (e.g., if a dismissal is vacated), the movant would be prejudiced if this Court had refused to reach the movant’s alternative argument that the stay should be lifted. See also, e.g., In re Krueger, 88 B.R. 238, 241-42 (9th Cir. BAP 1988) (notwithstanding dismissal, stay held to continue due to lack of proper notice re dismissal). b. Annulment, in rem relief, etc. Some matters always remain relevant, notwithstanding dismissal, closing of a case, or other grounds on which the stay might not currently exist. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). F. § 362: Loan Modification Management Program. The judge participates in the Loan Modification Management Pilot Program. The judge accepts transfers of cases from judges who are not part of this Court’s Loan Modification Management Program, with the consent and written order of that judge. G. § 363(b): Budget motions. Required for both individuals and businesses. Individual debtors often file budget motions that list $X net income from one or more business(es), without providing any breakdown of the business income and expenses. That information must be provided (the business could be paying exorbitant salaries to insiders, or paying debts that are guaranteed by the debtor while ignoring other debts, or other things that should be disclosed). When a budget motion has these defects, the judge will deny the motion or grant very limited relief. NOTE: The judge Procedures of Judge Bason (Rev. 10/10/25) p. 19 of 30 requires the use of local forms F 2081-2.2.MOTION.BUDGET and F 2081-2.2.ORDER.BUDGET for individuals. H. § 363(c) & § 364: Cash Collateral and Postpetition Financing. 1. Standard provisions. The judge adds standard provisions to proposed orders for (A) use of cash collateral or (B) postpetition financing by creditor(s) holding prepetition claim(s). A sample is posted on the judge’s web page. 2. Tentative ruling adopted. If the tentative ruling is adopted (in whole or in part) a copy should be attached as an exhibit to the proposed order. 3. Cash collateral form. The judge requires that individual debtors use local forms F 2081-2.1.MOTION.CASH.COLLATERAL and F 2081-2.1.ORDER.CASH.COLLATERAL. Other entities are encouraged to use those forms when applicable. 4. Cash collateral stipulations. The judge requires the use of local form F 4001-2.STMT.FINANCE. I. § 363(f): Sales free and clear. 1. § 363(f)(1). The judge has ruled that § 363(f)(1) authorizes a sale free and clear of any interest whenever a foreclosure sale would be free and clear of such interest. See In re Spanish Peaks Holdings II, LLC, 872 F.3d 892, 900-901 (9th Cir. 2017) (“Section 363(f)(1) authorized the sale of [the debtor’s] property free and clear of [leasehold interests]” because, foreclosure sale “would have terminated [such leases and] Section 363(f)(1) does not require an actual or anticipated foreclosure sale. It is satisfied if such a sale would be legally permissible.”). Alternatively, 363(f)(1) authorizes a sale free and clear of any interest if a receiver could be authorized to sell free and clear of such interest. See id. and also County of Sonoma v. Quail, 56 Cal.App.5th 657, 687 (1st App. Dist., 2020) (“[a] court of equity has the power to order the sale of property free and clear of liens and encumbrances”) (citation and internal quotation marks omitted). 2. § 363(f)(5). The judge does not follow Clear Channel Outdoor, Inc. v. Knupfer (In re PW, LLC), 391 B.R. 25, 40 (B.A.P. 9th Cir. 2008). He has ruled that a sale free and clear is permissible under § 363(f)(5) whenever the interest at issue is subject to monetary valuation. See In re Trans World Airlines, Inc., 322 F.3d 283, 290- 91 (3d Cir. 2003) ("TWA") (because employees’ claims were "subject to monetary valuation," debtor’s assets could be sold free and clear of successor liability for such claims under § 363(f)(5 . Alternatively, the judge has ruled that “cramdown” is among the types of legal or equitable proceeding within the statute, or that Clear Channel is distinguishable in most cases under the rationale Procedures of Judge Bason (Rev. 10/10/25) p. 20 of 30 of In re Jolan, 403 B.R. 866 (Bankr. W.D. Wash. 2009), because holders of interests can be compelled in numerous other types of legal or equitable proceedings to accept a money satisfaction (which might be $-0- in the case of an interest that is entirely underwater). Those proceedings include a hypothetical foreclosure by one of the lienholders, or a receivership (which could be initiated at the behest of creditors or by the debtor itself). See Cal. Code Civ. Proc. ("CCP") §564(b)(9) (power to appoint receiver to sell property); CCP § 568.5 (receiver empowered to sell property as provided in CCP §§701.510 et seq.); CCP § 701.630 (extinguishment of liens); CCP § 701.680 (binding effect of sale). See also County of Sonoma v. Quail, 56 Cal.App.5th 657, 687 (1st App. Dist., 2020) (“[a] court of equity has the power to order the sale of property free and clear of liens and encumbrances”) (citation and internal quotation marks omitted). The judge respectfully disagrees with In re Hassen Imports P’ship, 502 B.R. 851, 860 et seq. (C.D. Cal. 2013) (hypothetical foreclosure sale did not qualify under section 363(f)(5 . See generally In re Catalina Sea Ranch, LLC (Case No. 2:19-bk-24467-NB), dkt. 122 (approving sale to insider, free and clear of successor liability). J. § 363(m): “Good Faith” Findings. Supporting declaration(s) should address: (1) connections: the bidder’s prior, current, or expected connections with any relevant persons (other bidders, the debtor, major creditors or equity security holders in the case, or any of the debtor’s officers, directors, agents, or employees, including whether any offers of employment or compensation have been made or will be offered to debtor's present or former officers, directors, agents, or employees), (2) consideration: whether any consideration is contemplated or has been transferred by the bidder in connection with the sale to any person other than the bankruptcy estate, and (3) absence of fraud or collusion between the bidder and any relevant persons (e.g., other bidders, the debtor’s officers, directors, agents or employees), or any attempt to take unfair advantage of other bidders. See generally In re M Capital Corp., 290 B.R. 743, 748-49 (9th Cir. BAP 2003). As used in this paragraph, a “bidder” includes all known prospective bidders. K. § 364: Postpetition/DIP Financing. See § 363(c) above. L. § 365: Assumption of executory contract. See generally In re Kennedy (Case No. 2:20-bk-15954-NB), dkt. 121. M. § 366: Utilities. The judge requires that individual debtors use local forms F 2081-2.4.MOTION.UTILITIES and F 2081-2.4.ORDER.UTILITIES (when a utilities motion is necessary). Other entities are encouraged to use those forms when applicable. Procedures of Judge Bason (Rev. 10/10/25) p. 21 of 30 N. § 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of why the costs of preparing and litigating the claim objection (generally, the administrative expenses) do not exceed the anticipated benefits (generally, the likelihood of reducing claims). For example, if the claim at issue is a dischargeable nonpriority claim, and the anticipated dividend is not 100%, then (a) the attorney fees incurred in prosecuting an objection probably will exceed the benefit to the bankruptcy estate/creditors, (b) Debtor typically is harmed by replacing a (dischargeable) general unsecured claim with an administrative expense, and (c) only the lawyer benefits (at the expense of both creditors and Debtor). See In re Barba (Case No. 2:21-bk-18466-NB), dkt. 50. O. § 502: claim objections and burdens of proof. See In re Orozco, 2017 WL 3126797 (Bankr. C.D. Cal.) (Case No. 2:13-bk-15745-NB, dkt. 132), and In re Beoglyan (Case No. 2:13-bk-22883-NB, dkt. 141). P. § 506: debtor who is an unauthorized transferee probably cannot modify lienholder's right to foreclose. The judge has ruled that a debtor could not modify a lienholder's rights against collateral securing a non- debtor's obligations, and therefore the debtor, as an unauthorized transferee, could not prevent foreclosure (once the automatic stay terminated). See In re Bousheri (Case No. 2:15-bk-11345-NB), dkt. 79. Q. §§ 506(b), 1129(b), 1325: "cramdown" interest rates. The judge has expressed the view in various cases that when dealing with relatively small dollar amounts (for which the cost of presenting expert testimony as to interest rates would be prohibitive) the analysis in Till v. SCS Credit Corp., 541 U.S. 465 (2004), is appropriate, and conversely when dealing with larger dollar amounts the Till analysis probably is not appropriate, and one acceptable method for experts to opine as to the appropriate interest rate is the method described in In re Boulders on the River, Inc., 164 B.R. 99 (9th Cir. BAP 1994); see In re N. Valley Mall, LLC, 432 B.R. 825 (Bankr. C.D. Cal. 2010) (discussing continued viability of Boulders on the River). R. § 506(d): Lien Avoidance. Required forms: The judge requires use of Local Form F 4003-2.4.JR.LIEN.MOTION, entitled “Debtor’s Notice of Motion and Motion to Avoid Junior Lien on Principal Residence [11 U.S.C. § 506(d)]” and Local Form F 4003-2.4.JR.LIEN.ORDER. The judge also requires use of Local Form F 3012-1.MOTION.VALUATION, entitled "Notice of Motion and Motion for Order Determining Value of Collateral" and Local Form F 3012-1.ORDER.VALUATION for avoidance of liens not secured by the debtor's principal residence. Please calendar all such motions as soon as possible so as not to delay confirmation hearings. Admissible evidence with appropriate declaration(s) should address: (1) the value of the property (e.g., an appraisal, or a broker’s opinion, or a debtor’s declaration stating the basis for the debtor’s opinion such as familiarity with the residence, the neighborhood, and recent sales) and Procedures of Judge Bason (Rev. 10/10/25) p. 22 of 30 (2) the principal balance owed on all senior liens (e.g., mortgage statements). Proper date of valuation: The judge has issued a tentative ruling that the petition date is the appropriate date (not the current date/confirmation hearing date) to determine if a lien on a principal residence is entirely underwater and can therefore be avoided under In re Zimmer, 313 F.3d 1220 (9th Cir. 2002) and In re Lam, 211 B.R. 36 (9th Cir. BAP 1997). See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013). Similar reasoning likely applies to motions to value (effectively, motions to avoid liens secured by property other than the debtor’s principal residence). The judge never issued a final decision on that issue because the case was subsequently converted to chapter 7. The judge has also applied this ruling to both chapter 11 and chapter 13 cases. See also below, under §§ 1123(b)(5) & 1322(b)(2) (“principal residence” definition). Accordingly, evidence should be as near to the petition date as possible. S. § 522: exemptions. See In re Banuelos (Case No. 2:14-bk-29414-NB), dkt. 78 (apportionment of homestead exemption as between two spouses’ separate bankruptcy estates). T. § 522(f): Judicial Lien Avoidance. The judge requires the use of local forms F 4003-2.1.AVOID.LIEN.RP.MOTION and F 4003- 2.2.AVOID.LIEN.PP.MOTION. For purposes of establishing the absence of any equity upon which the subject judicial lien can attach, the debtor should NOT count (x) the subject judicial lien to be avoided, or (y) any liens junior to the subject judicial lien, except in rare instances in which the junior lien is a consensual lien or is otherwise non-avoidable. See In re Warren (Case No. 2:23-bk-16894-NB), dkt. 28, PDF pp. 3-5. U. § 523(a)(8): Student Loans/classification & dischargeability. The judge was not prepared to confirm a chapter 13 plan that would have paid student loan debts at the expense of paying much less to other creditors’ claims, when the debtor had not provided evidence of exploring other options including seeking forgiveness of student loan debt, seeking to discharge that debt, seeking to have the spouse (who had incurred the debts) join the bankruptcy petition, etc. See In re Baldwin (Case No. 2:14-bk-13616-NB), dkt. 49 (9/2/15) (available under “opinions” on the Court’s website). V. Chapter 11: Bar Date. The debtor should NOT serve the notice contemplated by Rule 3001-1. Instead the bar date, and procedures for asserting a claim under § 503(b)(9), will be set forth in the judge’s standard form of Order Setting Bar Date, which typically is prepared by the court after the initial chapter 11 status conference (except in subchapter V cases, in which the bar date is set by statute and the LBR). W. Chapter 11: Plan and Disclosure Statement Procedures. 1. Forms. Parties may use any type of (A) plan, (B) disclosure statement (if applicable), and (C) exhibits (use of the local forms is no longer required), PROVIDED that the plan proponent must “do Procedures of Judge Bason (Rev. 10/10/25) p. 23 of 30 the math” clearly and accurately. Do not just list the alleged net income of the debtor or any rental property or business owned by the debtor. Instead, you must provide a detailed breakdown of gross revenues, all expenses, and calculation of the resulting net income. 2. Examples. The following are illustrations of how to “do the math” (using existing forms, so you don’t have to “re-invent the wheel”). CAUTION: Be especially careful about any changes to, or double- counting of, debt or lease payments (see “Avoid common errors” below). a. Liquidation analysis must list (or incorporate by reference) all assets listed on the bankruptcy schedules (if those assets are still in the estate). See, e.g., Exhibit “G” in F 3018- 1.CH11.PLAN.DS.EXHIBITS. b. Individual debtors’ income projections can use bankruptcy schedules “I” and “J,” but those forms usually have to be marked up to show projected income and expenses. c. Rental properties can use a monthly budget such as the one included in Local Form 2081-2.1.MOTION.CASH.COLLATERAL, p. 5, marked up to show projected income and expenses. d. Businesses can use profit and loss statements such as the one included in the United States Trustee’s Monthly Operating Report form, marked up to show projected income and expenses. 3. Avoid common errors. a. Double-counting debts or lease payments. If your calculation of monthly cash flow includes debt or lease payments, and your plan also includes debt or lease payments, you’re double-counting – e.g., for individuals, see bankruptcy schedule “J,” lines 4, 5, 17 and 20. b. Loan or lease modifications. Be sure to adjust any historical cash flow to account for loan or lease modifications – e.g., for individuals, see bankruptcy schedule “J,” lines 4, 5, 17 and 20. 4. DO NOT SERVE the proposed disclosure statement and plan on anyone (except the U.S. Trustee and parties requesting special notice) until directed to do so. Serving drafts usually does nothing but confuse parties in interest and waste resources. 5. Preliminary review by U.S. Trustee and Court. The judge typically reviews the draft plan documents at the next status conference after they are filed. If the U.S. Trustee wishes to file initial comments at that time, it should do so at least two weeks prior that status Procedures of Judge Bason (Rev. 10/10/25) p. 24 of 30 conference (but, whether or not any such initial comments are filed, all rights are reserved to object to the proposed disclosure statement or plan when actual deadline(s) for such objections are established). 6. Standard procedures. At that status conference the judge typically (a) grants conditional approval of the plan proponent’s disclosures (whether they are contained in a Plan or in a separate Disclosure Statement – i.e., in both Subchapter V cases and all other chapter 11 cases) and (b) sets a combined hearing on final approval of those disclosures and confirmation of the Plan. Such procedures are authorized by §§ 105(a)&(d)(2)(B)(vi) (hearing on Plan/Disclosure Statement may be combined), 1125(f) (specific procedures for same in small business case), 1188 (same in subchapter V case), Rules 2002(b), 3017-3017.2, 3018, 3020, 3017-1(a), First Amended General Order 20-01, and, if time is shortened, Rule 9006(c). A sample order adopting such procedures is posted on the judge’s portion of the Court’s web page. 7. Special procedures. Streamlined procedures are encouraged, both to save costs and because parties in interest may have more meaningful disclosure by providing a short summary combined with ready access to the full documents. For example, the plan proponent should be prepared to address: (i) whether, instead of receiving the full plan and disclosure statement, some or all classes should receive a “court-approved summary” such as a one-page table showing the proposed treatment of each class, with prominent instructions on how to request a copy of the full documents and/or review them online (per 11 U.S.C. § 1125(b) & (c) and Rule 3017(d)(1 ; (ii) whether to establish special procedures for transmitting documents and information “to beneficial holders of stock, bonds, debentures, notes, and other securities” (per Rule 3017(e , (iii) whether to shorten time if a true exigency is shown by competent evidence (per Rule 9006(c , and (iv) whether to adopt any other special procedures. X. Chapter 11: Other forms. The judge requires use of Local Form 2081-1.1.C11.STATUS.RPT or, for “Subchapter V” small business debtors, the Subchapter V Status Report (available on this Court’s website, www.cacb.uscourts.gov, under “Forms” > “Other Forms”). Parties are encouraged to use the remaining series of local forms F-2081. Those forms apply to individuals, but parties are encouraged to use them (with appropriate amendments clearly shown) even when the debtor is not an individual. Procedures of Judge Bason (Rev. 10/10/25) p. 25 of 30 Y. § 1112: appointment of trustee. See In re Korean Western Presbyterian Church of Los Angeles (Case No. 2:20-bk-11675-NB), dkt. 123 (appointing chapter 11 trustee when one faction seeking control of debtor sought emergency relief without sufficient showing of emergency and without serving other faction with papers, and did not adequately alert court to governance dispute, and when leaving one faction in control would present dangers of dissipation of assets or other harm). Z. § 1112: “cause” for dismissal, conversion, or appointment of trustee. See In re Hacienda (Case No. 2:22-bk-15163-NB), dkt. 199 (declining to dismiss bankruptcy case, despite Debtor’s connection to the cannabis industry, where Debtor’s stated intention from outset of the case was to liquidate shares in a publicly traded Canadian company -- whose sole business was the manufacture and distribution of cannabis products – and to distribute the funds to creditors consistent with the provision of the Bankruptcy Code). AA. § 1122: classification. In a tentative ruling, the judge has held that a debtor could not separately classify a creditor’s deficiency claim from other general unsecured claims simply because that creditor also held a guaranty, without regard to whether that guaranty was collectible. The judge never issued any final decision on that issue, because (1) the debtor essentially mooted the issue by proposing a plan of reorganization that did not rely on separate classification of the deficiency claim and (2) the case subsequently was dismissed. But the tentative ruling reflects the judge’s current views. See In re 4th St. E. Investors, 2012 WL 174550 at *2-*10 (2:12-bk-17951- NB, dkt. 87 at pp. 5:20-15:11) (disagreeing with In re Loop 76, 442 B.R. 713 (Bankr. D. Ariz. 2010) (“Loop I”), aff’d, In re Loop 76, 465 B.R. 525 (9th Cir. BAP 2012) (“Loop II” . BB. § 1123(b)(5): "principal residence" definition. The judge follows BAP authority that the appropriate date for determining whether property is the debtor's principal residence is the petition date (See In re Gutierrez, 503 B.R. 458, 462-63 (Bankr. C.D. Cal. 2013 , but, as of the date of these procedures, the judge has not yet ruled what is the appropriate test for defining a "principal residence." Compare In re Wages, 508 B.R. 161 (9th Cir. BAP 2014 (majority adopts bright line rule that if any portion of property is principal residence, then entire property is treated as such) with, e.g., In re Scarborough, 461 F.3d 406 (3rd Cir. 2006) (bright line rule that if any portion of property is not principal residence, then entire property is treated as not being principal residence), and with, e.g., In re Brunson, 201 B.R. 351 (Bankr. W.D.N.Y. 1996) (totality of circumstances approach in determining what use of property is sufficient for it to be "principal residence," based largely on use of property as of inception of loan). CC. § 1129(a)(15): "means test" is not strictly applicable in chapter 11, but provides guidance to what expenses are "reasonably Procedures of Judge Bason (Rev. 10/10/25) p. 26 of 30 necessary." See In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246). This is a tentative ruling, and never became a final ruling in that case. As of the date when these posted procedures were prepared, the judge has not yet made any final ruling on this issue in any case. DD. § 1129(b)(2)(B)(ii): absolute priority rule. The judge previously has made the following rulings, both orally and in writing. See In re Lytle (Case No. 2:20-bk-12166-NB), dkt. 113. First, although this Court has an independent duty to examine the elements of cramdown under § 1129(a)(1) (cf. United States v. Espinosa, 130 S.Ct. 1367, 1378-80 (2010) (duty under parallel provisions of 11 U.S.C. 1325(a)(1 , a class of creditors can waive or forfeit the requirements of the absolute priority rule, so if there is no objection to confirmation and the plan meets the minimum requirements for cramdown then confirmation of the plan is appropriate. Cf. In re Hamer, 138 S.Ct. 13, 17 n.1 (2017) (distinguishing forfeiture and waiver); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (holding, in different context, that consent need not be express); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (same, and analyzing presumed consent). Second, when cramdown is required under § 1129(a)(10) & (b) it is subject to the "new value" "exception" (corrolary) to the absolute priority rule (typically an individual debtor would contribute cash from an exempt retirement account, or from a relative or friend). Third, new value must be (among other things) "reasonably equivalent to the value or interest received" (In re Bonner Mall P'ship, 2 F.3d 899, 908 (9th Cir. 1993) (citations omitted but by definition $0 is "reasonably equivalent" to whatever residual value exists in fully encumbered property (which is what debtors often retain). Fourth, however, new value must be "necessary" and "substantial" (id.), which requires whatever cash is "necessary" to the success of the proposed reorganization, as opposed to a "token" cash infusion. In re Snyder, 967 F.2d 1126, 1131-32 (7th Cir. 1992) (cited in Bonner Mall, 2 F.3d at 908). When a debtor is devoting all or almost all disposable income to the plan then it may be "necessary" for feasibility (§ 1129(a)(11 to have a cash infusion to cover the type of unanticipated emergency expenses that typically arise, and the judge has accepted this as "substantial" new value even if it does not increase the dividend to unsecured creditors. Note: the judge has questioned, but not ruled on, whether "bids or competing plans" are required, or what that would mean as applied to property that an individual debtor is entitled to exempt. Compare Bank of Am. Nat. Trust and Sav. Assn. v. 203 North LaSalle St. P'ship, 526 U.S. 434, 454-58 (1999) (limited partnership, not invidual, bankruptcy case); Zachary v. California Bank & Trust, 811 F.3d 1191 (9th Cir. 2016) (individual case, but not addressing that issue). See also In re Ambanc La Mesa L.P., 115 F.3d 650, 656-657 (9th Cir. 1997) (not deciding among various ways to measure if contribution is “substantial,” but holding that $32,000 Procedures of Judge Bason (Rev. 10/10/25) p. 27 of 30 contribution, less than 0.5% of unsecured debt, was de minimus as a matter of law). See also In re Green Pharmaceuticals, Inc., 617 B.R. 131 (Bankr. C.D. Cal. 2020) (court may consider other circumstances, such as how much debtor is paying for insiders’ auto and life insurance). EE. Chapter 13: Confirmation Hearings. The judge has adopted the following generally applicable procedures, subject to modification by proper motion/application or oral request at the confirmation hearing. 1. Trustee. The Chapter 13 Trustee assigned to administer the judge's chapter 13 cases is Kathy A. Dockery. The contact information for the Trustee’s office is (a) website: www.latrustee.com and (b) telephone: (213) 996-4400. 2. Calendaring. To the extent not otherwise set by court order (e.g., for continued hearings), attorneys for debtors and debtors without counsel should contact the Chapter 13 Trustee to set a hearing to confirm their plan. Note: All motions to value and avoid liens must be scheduled for hearing and the order(s) on the motion(s) must be entered before confirmation of the chapter 13 plan will be considered. 3. Payments. All required pre-confirmation plan payments must be current or else the case may be dismissed at the confirmation hearing, or before the confirmation hearing upon a declaration by the Chapter 13 Trustee. The judge does not require postpetition mortgage payment declarations. 4. Check-in procedure. The Chapter 13 Trustee’s office no longer makes in-person appearances (partly due to COVID-19 issues) so, if an appearance by the debtor or debtor’s attorney is required (see below), parties are strongly encouraged to communicate by telephone with the Chapter 13 Trustee’s counsel prior to the hearing for an informal meet-and-confer style “check-in.” 5. Appearances – when required. Attorneys for debtors and debtors without counsel must appear at the confirmation hearing, except that the Chapter 13 Trustee may excuse that appearance in the following situations: a. No opposition to Chapter 13 Trustee’s proposed disposition. The Chapter 13 Trustee will post proposed dispositions on her website and on the poster-board outside the courtroom on chapter 13 days. The judge generally adopts those dispositions if they are unopposed. For example, if the Chapter 13 Trustee recommends confirmation of the plan proposed by the debtor(s), and no party in interest has either filed a written objection or checked in with the Trustee to note their opposition to confirmation, then only the Chapter 13 Trustee is required to appear. If the court orders Procedures of Judge Bason (Rev. 10/10/25) p. 28 of 30 any alternative disposition (e.g., continuance to address the court’s own concerns) then the Trustee (or such other person as the court may designate) will provide any appropriate notice. b. Continuances by parties. If there is an oral or written agreement to a continuance by all debtor(s) and by all creditor(s) who have either checked in with the Chapter 13 Trustee or filed and served a written objection, then only the Chapter 13 Trustee is required to appear. The Trustee will notify the court of the proposed continued hearing date. If the court orders any alternative disposition (e.g., continuance to a different date) then the Trustee (or such other person as the court may designate) will provide any appropriate notice. 6. Dismissal or conversion at confirmation hearing. All parties in interest are hereby notified that, if sufficient cause is shown, the judge may dismiss or convert the case at any confirmation hearing, either based on the written or oral request of the Chapter 13 Trustee or another party in interest, or on the court’s own motion. If the dismissal is based in part on failure to abide by court orders, or failure to appear in proper prosecution of the case, the dismissal might include a bar against being a debtor in any future bankruptcy case. See §§ 102(1), 109(g), and 1307, Rules 1017(a) & (f)(1), 2002(m), 9006(c), 9007, and 9029(c), and LBR 1001-1(d) and 3015-1(d), (h)(1), (k)(4), (m)(7), and (q)(3). See also In re Cuevas (Case No. 2:14-bk-32359-NB), dkt. 89 at pp. 4:11-6:10 & passim. § 1322(b)(1): classification. Separate classification (of student loan FF. debt) is discussed in a tentative ruling, which never became the judge’s final ruling because the debtor opted to amend his chapter 13 plan to moot the issue. See In re Baldwin (2:14-bk-13616-NB) (dkt. 35). GG. § 1322(b)(2): "principal residence" definition. See §1123(b)(5) above. HH. Chapter 15: cross-border matters. See In re Golden Sphinx Ltd. (2:22-bk-14320-NB) and In re Sabadash (2:23-bk-15574-NB) for various issues regarding recognition of foreign proceedings and discovery. II. Chapter "20" (ch.7 case followed by ch.13). The judge has held that a creditor holding a stripped down or stripped off claim is not entitled to share in distributions to unsecured creditors when the in personam liability has been discharged in a prior chapter 7 case. See In re Rosa, 521 B.R. 337 (Bankr. N.D. Cal. 2014). JJ. Rule 7017: real party in interest/standing. The judge has ruled that a creditor may seek relief from the automatic stay or object to its treatment under a proposed chapter 13 plan based on its status as either (1) assignee Procedures of Judge Bason (Rev. 10/10/25) p. 29 of 30 of a promissory note or (2) assignee of the associated deed of trust. See In re Gallagher, 2012 WL 2900477 (Bankr. C.D. Cal. July 12, 2012) (following In re Veal, 450 B.R. 897 (9th Cir. BAP 2011 ; In re Dahl (Case No. 2:11-bk-11028-NB), Memorandum Decision (dkt. 75) at 2 n. 1. The judge has also ruled that California Civil Code § 2932.5, which requires that certain interests in real property be recorded prior to exercising a “power of sale,” does not require recordation prior to objecting to confirmation of a chapter 13 plan. Gallagher, 2012 WL 2900477 at *4. The judge also rejected arguments that (1) a substitute trustee under a deed of trust had to wait until finalization of the assignments to its principal before it could send foreclosure notices (id. at *6 - *7 & n. 6), or (2) that a person acting as a lender’s agent could not simultaneously act as an agent for the Mortgage Electronic Registration Systems, Inc. (“MERS”) (id. at *7). The judge ruled that the debtors/borrowers did not have standing to object to alleged violations of a trust agreement and/or pooling and servicing agreement to which they are not a party. Id. at *8 and see Supplemental Memorandum Decision, In re Gallagher (Case No. 2:12-bk- 10213-NB) docket #48. See also Turner v. Wells Fargo Bank NA, 859 F.3d 1145 (9th Cir. 2017). The judge has ruled that MERS has authority to assign the standard form of deed of trust. In re Dahl (Case No. 2:11-bk- 11028-NB), Memorandum Decision (dkt. 75). KK. Rule 7055: Default Judgments. A plaintiff seeking a default judgment must file and serve an affidavit establishing the dollar amount due or other specifics of the judgment. If the plaintiff is seeking a default judgment by the Court (as opposed to one by the Clerk under Rules 55(b)(1) and 7055) then the plaintiff must self-calendar a hearing on at least 14 days' notice (plus 3 days for service by mail), and any response is due 7 days prior to the hearing. In many instances the judge will post a tentative ruling to grant the judgment without the need for appearances, but sometimes a "prove up" hearing will be required. If the judge requires live testimony by witnesses for the plaintiff then the defaulting defendant will be entitled to cross-examine the witness but not present its own evidence or witnesses. LL. Rule 9011, and other Sanctions. See the Sanctions Table posted on the judge’s portion of the Court’s website (www.cacb.uscourts.gov). MM. Rule 9019: Settlements. 1. Analysis. A settlement must be in the best interests of the bankruptcy estate, and the Court must determine whether the settlement was negotiated in good faith and is reasonable, fair and equitable, considering the four factors in In re A & C Properties, 784 F.2d 1377, 1381 (9th Cir. 1986). While courts generally give significant deference to the business judgment of the bankruptcy trustee or DIP proposing the settlement, the degree of that Procedures of Judge Bason (Rev. 10/10/25) p. 30 of 30 deference generally depends on the trustee/DIP’s demonstrated diligence, good faith, and persuasiveness; and greater scrutiny is required when insiders have negotiated, or benefit from, the proposed settlement. See In re Law Offices of Brian D. Witzer (Case No. 2:21-bk-12517-NB), dkt. 450 & 505 (more extensive analysis). 2. Procedures. Declaration(s) should support each of the four factors in In re A & C Properties, 784 F.2d 1377, 1381 (9th Cir. 1986). In routine settlements, the factors can be addressed briefly. Motions to approve settlements generally must be filed in the bankruptcy case (not in any adversary proceeding that is being settled), and after a settlement is approved please follow up promptly with a separate dismissal motion/application in the adversary proceeding. NN. 28 U.S.C. § 1334/Authority/Jurisdiction: Stern v. Marshall etc. See generally In re AWTR Liquidation Inc., 547 B.R. 831 (Bankr. C.D. Cal. 2016). OO. Director and Officer Liability. See In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
=== Sanctions Table ===
Sanctions Table Prepared by U.S. Bankruptcy Judge Neil W. Bason, Central District of California1 NOTES: (1) Limited authorization to use this table. Judge Bason and his law clerks have prepared this table for their own use and they occasionally revise it, but without necessarily engaging in exhaustive research on any given topic. Readers are authorized to use this table as an aid, not a substitute, for their own research (e.g., Shepardize all cites). This table may not be reproduced without written permission from Judge Bason. (2) Attorney discipline: Consider ABA standards.2 (3) Sanctions generally: Address jurisdiction and authority,3 provide detailed notice and generally a hearing,4 protect attorney-client privilege,5 consider whether alleged wrongdoer requires protections akin to criminal proceedings,6 and for multiple wrongdoers consider joint and several liability or allocation of sanctions among them.7 Authority8 Prerequisites 9011(c)(1)(A) Motion11 9011(c)(1)(B) on court’s initiative20 Inherent power25 (1) 21 day chance to withdraw/correct12, (2) objectively unreason- able conduct,13 (3) motion not combined with other requests14 OSC describing specific conduct issued prior to withdrawal or settlement of issue; “akin to contempt”?21 (1) Notice (& opp. for hrg?)26 (2) explicit (or implied?27) finding of bad faith or willful misconduct;28 (3) clear & convincing evid?29 Sanctions $ (a) Pay to party (b) Pay to court (a) Yes (b) Yes Atty Fees Yes Compen- satory $9 Yes as warranted for effective deterrence15 Other/Notes (for serious sanctions, consider referral to disciplinary panel)10 “Directives of a non-monetary nature”16 Which includes (1) vexatious litigant order,17 (2) suspension/disbarment,18 (3) bench warrant?? (4) evidentiary sanctions??19 No22 Yes (a) No23 (b) Yes No24 (same?) Yes33 (a) Yes,30 (b) Yes,31 but no “serious” sanctions (>$5k, 1989 dollars?)32 Same?? (1) Vexatious litigant?? (2) Suspension/disbarment34 (3) Bench warrant (body detention)?? Note: “technical” or “inadvertent” violations will not support sanctions under inherent power35 Sanctions Table; NWB Rev. 12/20 Authority8 Prerequisites Contempt-Civil § 105(a) (compensatory, or coercive i.e. sanctions must cease upon compliance)36 (1) Specific & definite order (incl. automatic orders e.g. stay); 37 (2) notice & opp. for hearing; (3) clear & convincing evid;38 (4) enforce via contested matter not AP39 Compen- satory $9 Yes, limited to “actual damages” (including atty fees seeking compliance with order)40 Atty Fees Yes43 Sanctions $ (a) Pay to party (b) Pay to court (a) Yes??41 (b) Yes, but no serious sanctions …42 Other/Notes (for serious sanctions, consider referral to disciplinary panel)10 Same?? (1) Vexatious litigant, (2) suspension/disbarment, (3) bench warrant (body detention), (4) fines or incarceration until compliance.44 Notes: (a) “failure to take all reasonable steps within the party’s power to comply” is sanctionable;45 (b) intent is irrelevant and good faith is not a defense, unless coupled with reasonable interpretation of order;46 (c) inability to comply with the order is a defense, but “self-induced inability is not a defense,”47 (d) “technical” or “inadvertent” violations will not support contempt finding48 Contempt-Crim. (punitive) 28 U.S.C. § 1927 Removal 28 U.S.C. §1447(c) 362(k) [formerly 362(h)] N/A N/A49 Must be tied to specific removal, by virtue of the language “incurred as a result of the removal.”50 Individual53 injured by willful54 violation Yes51 (a) No (b) No Yes52 Yes (a) Yes (b) No?? Yes55 Emotional distress damages ok56; punitive damages ok.57 Sanctions Table; NWB Rev. 12/20 Authority8 Prerequisites 7037, Discovery Sanctions Compen- satory $9 Sanctions $ (a) Pay to party (b) Pay to court Atty Fees Other/Notes (for serious sanctions, consider referral to disciplinary panel)10 Evidentiary presumptions58; exclusion of witness59; terminating sanctions60 7041 (FRCP 41(b , Dismissal for lack of prosecution61 Limited to extreme circumstances; requires showing of unreasonable delay Trial court must weigh 5 factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits[;] and (5) the availability of less drastic sanctions.”62 Sanctions Table; NWB Rev. 12/20 Compen- satory $9 Sanctions $ (a) Pay to party (b) Pay to court Atty Fees Other/Notes (for serious sanctions, consider referral to disciplinary panel)10 Vexatious Litigant (filing injunctions) LBR authorizes “imposition of sanctions” (1) civil or criminal contempt (2) “other appropriate sanctions” (3) referral to disciplinary authority for state or jurisdiction in which counsel is licensed to practice (4) refer matter per Local Civil Rule 83-3 or General Order 96-05 Civil contempt and sanctions Authority8 Prerequisites All Writs Act63 28 U.S.C. §1651 LBR64 1001- 1(f) LBR65 2090-2 LBR66 9020-1 Contempt (1) Notice & opp for hrg; (2) adequate record for review; (3) for vexatious litigant order: substantive findings as to the frivolous or harassing nature of the actions; (4) narrowly tailored to fit the specific vice at issue Non-compliance with LBR, FRCP, FRBP or any court order Cause to believe counsel engaged in unprofessional conduct Filed motion per 9013-1 with proposed OSC, showing cause via (1) written explanation and (2) appearance at hearing Enforcement/Referrals/Reporting/Settlement Sanctions Table; NWB Rev. 12/20 Agency/Court The State Bar of California Method of Referral/Report Complete and submit Discipline Referral Form to: The State Bar of California Office of the Chief Trial Counsel Intake Department 845 South Figueroa Street Los Angeles, CA 90017-2515 U.S. District Court, Standing Committee on Discipline, for criminal/punitive contempt68 Submit complaint in writing to the USDC Standing Committee on Discipline, c/o Clerk of Court Possible agency actions If State Bar determines probable misconduct is present, action is referred to State Bar Court, which may (1) issue public or private reprovals, (2) recommend the California Supreme Court disbar or suspend attorneys, or (3) temporarily remove attorneys from practice of law where they present a substantial threat of harm to clients/public. Costs may be imposed per Cal. Bus. & Prof. Code 6086.10.67 Per Local Civil Rule 83-3.1.3, possible penalties include: (1) disbarment; (2) suspension not to exceed three years; (3) public or private reproval; (4) monetary penalties (may incl. order to pay costs of proceedings); (5) and/or acceptance of resignation. U.S. Attorney’s Office American Bar Association, Center for Professional Responsibility Court may submit Criminal Referral Notification Statement to: Administrative Office of the United States Courts, Bankruptcy Judges Division One Columbus Circle, N.E. Washington, DC 20544 With a copy to: Patti Brundige Supervisory Paralegal Specialist United States Trustee 915 Wilshire Blvd., Suite 1850 Los Angeles, CA 90017 Submit disciplinary orders to the National Lawyer Regulatory Data Bank: National Lawyer Regulatory Data Bank Center For Professional Responsibility American Bar Association 321 North Clark Street Chicago, IL 60610 N/A – database, “central repository of information to facilitate reciprocal discipline and to help prevent the admission of lawyers who have been disbarred or suspended elsewhere.” 69 Sanctions Table; NWB Rev. 12/20 Agency/Court Settlement (by private parties, as distinguished from settlements as part of disciplinary proceedings) N/A Method of Referral/Report Possible agency actions California law and rules limit the ability of a settlement between private parties to restrict a professional’s practice.70 1 Judge Bason gratefully acknowledges the assistance of his present and former law clerks and externs in preparing this table, including especially his former law clerk Angella Yates, Esq. 2 Attorney discipline - ABA standards recommended but not mandatory. The BAP has held that the ABA standards are persuasive but it is no longer reversible error not to follow them provided that (1) the disciplinary proceeding is fair, (2) the evidence supports the findings, and (3) the penalty imposed was reasonable. In re Nguyen, 447 B.R. 268 (9th Cir. BAP 2011) (en banc reconsideration of In re Crayton, 192 B.R. 970 (9th Cir. BAP 1996 . See In re Brooks-Hamilton, 400 B.R. 238, 252-53 (9th Cir. BAP 2009) (under ABA standards, “the bankruptcy court should consider: (1) whether the duty violated was to a client, the public, the legal system or the profession; (2) whether the lawyer acted intentionally, knowingly or negligently; (3) whether the lawyer's misconduct caused a serious or potentially serious injury; and (4) whether aggravating factors or mitigating circumstances exist.”). See also In re Lehtinen, 564 F.3d 1052, 1062 (9th Cir. 2009) (“In the federal system there is no uniform procedure for disciplinary proceedings. The individual judicial districts are free to define the rules to be followed and the grounds for punishment.”) (citation and internal quotation marks omitted), abrogated on other grounds, as stated in In re Gugliuzza, 852 F.3d 887, 898 (9th Cir. 2017); In re Larry’s Apt., LLC, 249 F.3d 832, 838-39 (9th Cir. 2001) (federal, not State, sanctions rules apply in bankruptcy cases). Note that, although State sanctions rules are not binding (id.), they can be persuasive authority; and California has revised its ethics rules (effective 11/1/18) to be closer to the ABA Model Rules. 3 Jurisdiction, and Stern v. Marshall, 131 S.Ct. 2594 (2011). In general, if a bankruptcy case is dismissed without reserving jurisdiction on a given issue, the bankruptcy court might not have post-dismissal jurisdiction. See generally In re Lawson, 156 B.R. 43 (9th Cir. BAP 1993). But reserving jurisdiction probably works. See id. and In re Eighty South Lake, Inc., 81 B.R. 580 (9th Cir. BAP 1987). See also L.B.R. 1017-2 (Cent. Dist. Cal.) (“Notwithstanding any dismissal, the court retains jurisdiction regarding all issues involving sanctions ….”). As for Stern v. Marshall issues, Judge Bason has held that sanctions proceedings are constitutionally “core” for purposes of the bankruptcy court’s authority to enter a final judgment or order in such proceedings. See Rubye Taylor, et al. v. James B. Nutter & Company, et al., 2:15-ap-01183-NB, dkt. 131, pp. 11:14-14:2, rev’d on other grounds (9th Cir. BAP CC-16-1376-KuLTa, 8/9/17, unpublished). See also In re David, 487 B.R. 843, 867 (Bankr. S.D.Tex. 2013) (holding sanctions proceedings were constitutionally “core” without analysis); and see generally In re AWTR Liquidation, Inc., 547 B.R. 831 (Bankr. C.D.Cal. 2016) (examination of Stern policies applied in various contexts). 4 Notice and a hearing. "When an attorney is subject to discipline, he or she has a right to notice and an opportunity to be heard." In re Nguyen, 447 B.R. 268, 278 (9th Cir. BAP 2011) (citations omitted). But see In re Icenhower, 755 F.3d 1130, 1139 (9th Cir. 2014) (“If the alleged contemnor does not raise a question of fact through affidavits, and does not seek the opportunity to present its defense through live testimony, a court does not violate that party's due process rights by holding it in contempt solely based on affidavits.”) (citations omitted). 5 Attorney-client privilege: For the “crime-fraud exception” see United States v. Chen, 99 F.3d 1495, 1500 (9th Cir. 1996); In re Grand Jury Subpoena, 31 F.3d 826, 830 (9th Cir. 1994) (in camera review authorized based on “reasonable belief” that such review may lead to evidence that the exception applies”). See also In re Icenhower, 755 F.3d 1130, 1141 (9th Cir. 2014) (invoking “advice of counsel” defense waived attorney-client privilege in context of crime-fraud exception). 6 Criminal due process if sanctions might be punitive? At least one court has required special procedures. See In re Winslow, 131 B.R. 171, 173, later proceedings, 132 B.R. 1020 (D. Colo. 1991) (even without criminal contempt, if civil contempt could result in incarceration, the subject should be informed of right to counsel and right to have counsel appointed if indigent). 7 Allocation of sanctions/joint and several liability. As between wrongdoing counsel and client, allocate according to their relative culpability. In re Rainbow Magazine, Inc., 136 B.R. 545, 554 (9th Cir. BAP 1992) (allocation between client and counsel in context of bad faith bankruptcy filing), sanctions aff’d after remand, 77 F.3d 278 (9th Cir. 1996); BAP decision superseded on other grounds as noted by In re Lapin, 226 B.R. 637, 641 (9th Cir. BAP 1998) (sanctions against non- party can be awarded under court’s inherent powers). 8 Authority - court should notify the person charged of the precise authority for sanctions. See In re DeVille, 361 F.3d 539, 548-50 & n.4 (9th Cir. 2004) (bankruptcy court’s notice was sufficient, despite not specifically identifying its inherent authority as one ground for sanctions, in the particular circumstances, but Sanctions Table; NWB Rev. 12/20 Page 6 “[w]e do not expect … that the result reached here will be often justified in future cases where the sanctioned party was not explicitly informed beforehand of the precise ground for the imposition of sanctions”). See also In re Pham, 2017 WL 5148452, *9 (9th Cir. BAP Nov. 6, 2017) (reversing sanctions award because party “had no notice that this conduct was a basis for the sanctions being sought”). 9 Compensatory not punitive = “but for” causation. See GoodyearTire & Rubber Co. v. Hager, 137 S.Ct. 1178 (2017) (rejecting award of all attorney fees, including prior to when sanctionable conduct occurred); and see also discussion of Civil Contempt v. Criminal Contempt below. But see Crossfit, Inc. v. Nat’l Strength & Conditioning Ass’n, 2017 WL 4700070 at *3-4 (S.D. Cal. Oct. 19, 2017) (declining to extend Goodyear “but-for” test to all sanctions and limited the causal link to sanctions involving attorney’s fees). 10 Referral to disciplinary panel discretionary, but strongly urged by BAP. “Although the Panel’s prior decisions do not require that the bankruptcy court refer the matter to the [disciplinary panel], we strongly urge the bankruptcy court to do so, … [so that] the bankruptcy court will avoid the awkward responsibility for serving as ‘prosecutor and arbiter in the investigation, prosecution and discipline’ of [the attorney].” In re Brooks-Hamilton, 400 B.R. 238, 253 (9th Cir. BAP 2009); see also In re Crayton, 192 B.R. 970, 978 (9th Cir. BAP 1996). The Ninth Circuit has rejected an argument that a lack of referral to a standing committee was reversible error (when the local rules made such referrals discretionary). In re Lehtinen, 564 F.3d 1052, 1062 (9th Cir. 2009), abrogated on other grounds, as stated in In re Gugliuzza, 852 F.3d 887, 898 (9th Cir. 2017). For Bankr. C.D. Cal. disciplinary panel procedures, see (FifthAmended) General Order 96-05. 11 9011 – same standards as Rule 11 (FRCP). Because the “pertinent language of these rules [Rule 9011 FRBP and Rule 11 FRCP] is virtually identical, authorities analyzing Rule 11 are applicable to the Rule 9011 analysis.” In re Rainbow Magazine, Inc., 136 B.R. 545 (9th Cir. BAP 1992), aff’d after remand, 77 F.3d 278 (9th Cir. 1996); BAP decision superseded on other grounds as noted by In re Lapin, 226 B.R. 637, 641 (9th Cir. BAP 1998). See also In re Silberkraus, 336 F.3d 864, 870 (9th Cir. 2003) (describing nature of certifications, and examining sliding scale of frivolousness and improper purpose: “where the more compelling the showing as to one element, the less decisive need be the showing as to the other”) (quoting In re Marsch, 36 F.3d at 830). A filing is frivolous if it is “both baseless and made without a reasonable and competent inquiry.” Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990) (en banc). 12 9011 (motion) – 21-day “safe harbor” and exception for petition. No “safe harbor” (21-day opportunity to withdraw/correct) if the conduct at issue is the filing of a bankruptcy petition in violation of F.R.B.P. 9011(b). F.R.B.P. 9011(c)(1)(A) (2014). Rule 11 (Fed. R. Civ. P.) contemplates service of a "filing-ready motion" 21 days prior to filing the actual motion with the court in order to trigger the safe harbor period. Truesdell v. S. Cal. Permanente Med. Grp., 293 F.3d 1146, 1151 (9th Cir. 2002). 13 9011 (motion) – objectively unreasonable conduct. “‘The imposition of Rule 11 sanctions…requires only a showing of objectively unreasonable conduct.’” In re DeVille, 361 F.3d 539, 548 (9th Cir. 2004) (quoting Fellheimer, Eichen & Braverman v. Charter Technologies, 57 F.3d 1215, 1225 (3d Cir.1995 14 9011 (motion) – cannot be combined with other requests. Correspondence does not substitute for a formal motion. Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998). See also Radcliffe v. Rainbow Construction Co., 254 F.3d 772 (9th Cir. 2001); Roth v. Green, 466 F.3d 1179, 1192 (10th Cir. 2006) ("[T]he Advisory Committee's Notes clearly suggest that warning letters . . . are supplemental to, and cannot be deemed an adequate substitute for, the service of the motion itself."). 15 9011 (motion) - no monetary sanctions against parties represented by counsel for 9011(b)(2) violation. Monetary sanctions may be ordered against the represented party’s counsel, but not against the party him/her/itself. See F.R.B.P. 9011(c)(2)(A) (2014) (“Monetary sanctions may not be awarded against a represented party for violation of [F.R.B.P. 9011](b)(2).”) 16 9011 (motion or OSC) - nonmonetary directives authorized. See F.R.B.P. 9011(c)(2) (2014) (“[T]he sanction [under F.R.B.P. 9011] may consist of, or include, directives of a nonmonetary nature….”). 17 9011 (motion or OSC) -vexatious litigants. In a discussion of “available sanctions” under F.R.B.P. 9011, “[c]ourts have ordered non-monetary sanctions including enjoining litigants…from bringing similar suits without leave of the court.” In re Upland Partners, 2006 WL 980583 at *9 (Bankr. D. Hawai’i, Mar. 15, 2006) (imposing filing injunction on litigant). See also Fariello v. Campbell, 860 F.Supp. 54, 71 (E.D.N.Y. 1994) (imposing pre-filing review sanction on vexatious pro se litigant pursuant to F.R.C.P. 11). VEXATIOUS LITIGANTS GENERALLY See generally In re Stanwyck, 450 B.R. 181, 200-08 (Bankr. C.D. Cal. 2011) (Carroll, C.J.). In re Fillbach, 223 F.3d 1089, 1090 (9th Cir. 2000) (discretion to dismiss action for failure to comply with vexatious litigant pre-filing order). See also In re Rainbow Magazine, Inc., 77 F.3d 278, 284 (9th Cir. 1996) (“[B]ankruptcy courts have the inherent power to sanction vexatious conduct presented before the court.”). (A) Extreme remedy. See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citing De Long v. Hennessey, et al., 912 F.2d 1144, 1147 (9th Cir. 1990) (“[P]re-filing orders are an extreme remedy that should rarely be used.” . Before imposing sanctions, court must: (1) give litigants notice and “an opportunity to oppose the order before it [is] entered”; (2) compile an adequate record for appellate review, including “a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed”; (3) make Sanctions Table; NWB Rev. 12/20 Page 7 substantive findings of frivolousness or harassment; and (4) tailor the order narrowly so as “to closely fit the specific vice encountered.” [Ringgold- Lockhart v. Cty. of L.A., 761 F.3d 1057, 1062 (9th Cir. 2014) (citation and internal quotation marks omitted).] (B) Factors. In De Long, the Ninth Circuit set out the four factors in the above table (see All Writs Act) for district courts to examine before entering pre-filing orders. See De Long v. Hennessey, et al., 912 F.2d 1144 (9th Cir. 1990). The Ninth Circuit has also held that the factors set forth by the Second Circuit in Safir v. U.S. Lines, Inc., 792 F.2d 19 (2d Cir. 1986) “provide[] a helpful framework for applying the [third and fourth] factors” set forth in De Long. Molski v. Evergreen Dynasty Corp., 400 F.3d 1047, 1058 (9th Cir. 2007). The five Safir factors are as follows: (1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties. Safir,792 F.2d at 24. An “inordinate” number of frivolous filings is required, but those filings can arise in a single bankruptcy case, and can be “frivolous” even if some parts of them have merit; and although the bankruptcy court must use pre-filing order only as a “last resort,” dismissal of the bankruptcy case sometimes is not effective because it is exactly what the debtor wants; denial of discharge is ineffective if the discharge has already been denied on other grounds; and wasting estate’s limited resources can establish the necessity of a pre-filing order. In re Koshkalda, __ B.R. __ (9th Cir. BAP 12/7/2020). “An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed.” Ringgold-Lockhart, 761 F.3d at 1063 (citing De Long, 912 F.2d at 1147). (C) Only pro se parties? The U.S. District Court for the Central District of California has held that “a represented party ordinarily is incapable of being declared a vexatious litigant,” finding the rationale of CCP § 391(b) (vexatious litigant statute limited to unrepresented parties) instructive in interpreting the All Writs Act (28 U.S.C. § 1651(a . Doran v. Vicorp Restaurants, Inc., 407 F.Supp.2d 1115, 1118 (C.D. Cal. 2005) (“Attorneys…are bound by rules of ethics and…rely on their reputation in the community to sustain their careers. Attorneys therefore are much less likely to file frivolous claims, even[] absent the threat of their clients being declared vexatious litigants.”). But see, Matter of Hartford Textile Corp., 681 F.2d 895, 896 (2d Cir. 1982) (enjoining individual and her attorney from filing certain papers in the U.S. Bankruptcy Court, SDNY; SDNY; and the U.S. Court of Appeals for the Second Circuit where the case had “an almost unparalleled history of frivolous and repetitious claims, motions, petitions, demands, and appeals….”). 18 9011 (motion or OSC) – suspension or disbarment. The BAP has held that “[b]ankruptcy courts…have express authority under the Code and the Rules to sanction attorneys, including disbarment or suspension from practice.” In re Nguyen, 447 B.R. 268, 281 (9th Cir. BAP 2011) (citing F.R.B.P. 9011, 11 U.S.C. § 105(a), and Bankr. N.D. Cal.’s LBR 1001-2). 19 9011 (motion or OSC) evientiary sanctions. See discovery sanctions below. 20 9011 – same standards as Rule 11 (FRCP). See first “9011” endnote above. 21 9011 (OSC) mens rea. When the court initiates sanctions under Rule 9011, the conduct must be “akin to contempt” which requires “more than ignorance or negligence on the part of [the attorney].” In re Nakhuda, 544 B.R. 886, 902 (9th Cir. BAP 2016). 22 9011 (OSC) - compensatory damages not available. See F.R.B.P. 9011(c)(1)(B) & (c)(2); Barber v. Miller, 146 F.3d 707, 711 (9th Cir. 1998) (quoting Fed. R. Civ. P. 11, Adv. Comm. Notes, 1993 Amend. (“[A] monetary sanction imposed after a court-initiated show cause order [is] limited to a penalty payable to the court.” . 23 9011 (OSC) – sanctions only payable to court, not party. Id. 24 9011 (OSC) – attorney fees not available. Id.; see also In re Loyd, 304 B.R 372, 374 (9th Cir. BAP 2003). 25 INHERENT POWER V. CIVIL CONTEMPT (§ 105(a (A) Differences. “Civil contempt authority allows a court to remedy a violation of a specific order (including ‘automatic’ orders, such as the automatic stay or discharge injunction). The inherent sanction authority allows a bankruptcy court to deter and provide compensation for a broad range of improper litigation tactics.” In addition, “[b]efore imposing sanctions under its inherent sanctioning authority, a court must make an explicit finding of bad faith or willful misconduct” which “consists of something more egregious than mere negligence or recklessness.” In re Dyer, 322 F.3d 1178, 1196 (9th Cir. 2003) (emphasis added, citations and internal quotation marks omitted). This has been stated more broadly as requiring either bad faith, conduct tantamount to bad faith, or recklessness with an “additional factor such as frivolousness, harassment, or an improper purpose.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001) (emphasis added). See also In re DeVille, 280 B.R. 483, 495 (9th Cir. BAP 2002) ("a court may sanction pursuant to its inherent authority even when the same conduct may also be punished under another sanctioning statute or rule.") (string citation omitted), aff’d, 361 F.3d 539 (9th Cir. 2004). Sanctions Table; NWB Rev. 12/20 (B) Congress vested bankruptcy courts with inherent powers. See In re Dyer, 322 F.3d 1178, 1196 (9th Cir. 2003) (“bankruptcy courts, like district courts, also possess [the] inherent power” to sanction “bad faith” or “willful misconduct” because “the very creation of the court” establishes such inherent power “unless Congress intentionally restricts those powers,” and Congress’ intent is confirmed by § 105(a . In re Dyer, 322 F.3d 1178, 1196 (9th Cir. 2003) (citations omitted). See generally Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (extensive discussion of federal courts’ inherent powers, with extensive dissents). (C) Constitutional limits? In view of Stern v. Marshall, it is not entirely settled whether the bankruptcy court has any “inherent” sanctioning powers, nor whether §105(a) includes sanctioning powers, nor whether any such powers apply in parallel with statutory provisions that provide for other remedies. 26 Inherent power – adequate notice. “[W]hen using the inherent sanction power, due process is accorded as long as the sanctionee is ‘provided with sufficient, advance notice of exactly which conduct was alleged to be sanctionable, and [was] furthermore aware that [he] stood accused of having acted in bad faith.’” In re Lehtinen, 564 F.3d 1052, 1060 (9th Cir. 2009) (quoting In re DeVille, 361 F.3d 539, 549 (9th Cir. 2004 , abrogated on other grounds, as stated in In re Gugliuzza, 852 F.3d 887, 898 (9th Cir. 2017). 27 Inherent power – implied finding of bad faith might be sufficient. In re Lehtinen, 564 F.3d 1052, 1061 (9th Cir. 2009) (implied finding was sufficient), abrogated on other grounds, as stated in In re Gugliuzza, 852 F.3d 887, 898 (9th Cir. 2017). 28 Inherent power – bad faith /willful misconduct. See In re De Jesus Gomez, 592 B.R. 698, 708 (B.A.P. 9th Cir. 2018) (affirming sanctions where “this recklessness [of the conduct] appears coupled with frivouslous arguments and actions.”). See In re Lehtinen, 564 F.3d 1052, 1058 (9th Cir. 2009) (quoting In re Dyer, 322 F.3d 1178, 1196 (9th Cir. 2003) (“Before imposing sanctions under its inherent sanctioning authority, a court must make an explicit finding of bad faith or willful misconduct.”), abrogated on other grounds, as stated in In re Gugliuzza, 852 F.3d 887, 898 (9th Cir. 2017); In re DeVille, 280 B.R. 483, 495 (9th Cir. BAP 2002) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45-6 (1991 (“To impose inherent power sanctions, a court must find that a party acted ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’”), aff'd, 361 F.3d 539 (9th Cir. 2004). 29 Inherent power – clear and convincing evidence. Appellate courts review the calculation of attorneys fees (as award of sanctions) for an abuse of discretion. Goodyear Tire & Rubber Co. v. Haegar, 137 S. Ct. 1178, 1184 (2017). 30 Inherent power – sanctions payable to party or to court. Mark Industries, Ltd. v. Sea Captain’s Choice, Inc., 50 F.3d 730, 733 (9th Cir. 1995) (upholding, though limiting, order of monetary sanctions payable to court under court’s inherent authority) 31 Inherent power – sanctions payable to court, and punitive sanctions. “This Court has made clear that [fee-shifting], when imposed pursuant to civil procedures, must be compensatory rather than punitive in nature.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017) (citing Mineworkers v. Bagwell, 512 U.S. 821, 826–30 (1994) (extensive discussion of when a sanction is punitive and what procedural protections may be required, such as proof beyond a reasonable doubt, at least when not addressing “petty, direct contempts” in the presence of the court. . “[T]he inherent sanction authority ‘does not authorize significant punitive damages.’” In re Lehtinen, 564 F.3d 1052, 1059 (9th Cir. 2009) (emphasis added) (quoting In re Dyer, 322 F.3d 1178, 1197 (9th Cir. 2003 , abrogated on other grounds, as stated in In re Gugliuzza, 852 F.3d 887, 898 (9th Cir. 2017). Dyer uses the terms “serious” and “significant” punitive sanctions interchangeably, and distinguishes them from “relatively mild” punitive sanctions. 32 CIVIL CONTEMPT (compensatory or coercive) v. CRIMINAL CONTEMPT (punitive). (A) Distinction: “When the petitioners carry the keys of their prison in their own pockets, the action is essentially a civil remedy.” Shillitani v. United States, 384 U.S. 364, 368 (1966). The Ninth Circuit has “explained the difference between civil sanctions and criminal sanctions: Civil penalties must either be compensatory or designed to coerce compliance. In contrast, a flat unconditional fine totaling even as little as $50 could be criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance, and the fine is not compensatory. This is so regardless of whether the noncompensatory fine is payable to the court or to the complainant [although] [w]hether the fine is payable to the complainant may … be one relevant factor in determining whether the fine is compensatory or punitive.” In re Dyer, 322 F.3d 1178, 1192 (9th Cir. 2003) (citations and internal quotation marks omitted). “Where the fine is not compensatory, it is civil only if the contemnor is able to avoid paying the amount imposed by performing the act required by the court’s order.” In re Count Liberty, LLC, 370 B.R. 259, 274-5 (Bankr. C.D. Cal. 2007). “A sanctioning court must determine which fees were incurred because of, and solely because of, the misconduct at issue (however serious, or concurrent with a lawyer’s work, it might have been).” Goodyear Tire & Rubber Co. v. Haegar, 137 S. Ct. 1178, 1189 (2017). (B) “Serious” v. “relatively mild” sanctions. Bankruptcy court may not impose “serious” punitive sanctions, although “relatively mild non- compensatory fines may be necessary under some circumstances.” In re Dyer, 322 F.3d 1178, 1193 & n.16 (9th Cir. 2003) (citations omitted) (“As we did in Hanshaw, [244 F.3d 1128, 1140 n. 10 (9th Cir. 2001)] we leave for another day the development of a precise definition of the term ‘serious’ punitive Sanctions Table; NWB Rev. 12/20 (criminal) sanctions”) (but note that Dyer summarizes one case as “implying that any fine above $5,000 would be serious, but declining to reach the question,” and Dyer cites another case as affirming a “non-compensatory fine of $250 on an attorney in order to vindicate local rules.” . See also Hanshaw, 244 F.3d 1128, 1139 n.10 (referring to $5,000 in “1989 dollars” as implicit cutoff for “serious” sanctions, but implying that contemnor’s ability to pay sanction may bear on whether the sanction is “serious”) (citations omitted). 33 Inherent power – attorney fees. “The court, when using its inherent sanctioning authority (and civil procedures), to establish a causal link—between the litigant’s misbehavior and legal fees paid by the opposing party. That kind of causal connection . . . is appropriately framed as a but-for-test; The complaining party . . . may recover ‘only the portion of his fees that he would not have paid but for’ the misconduct.” Goodyear Tire & Rubber Co. v. Haegar, 137 S. Ct. 1178, 1186-87 (2017). See In re DeVille, 361 F.3d 539 (9th Cir. 2004) (upholding bankruptcy court’s use of inherent power to support sanction of attorney’s fees and costs). See discussion of FEES ON FEES below. 34 Inherent power – suspension/disbarment. See In re Lehtinen, 564 F.3d 1052 (9th Cir. 2009), abrogated on other grounds, as stated in In re Gugliuzza, 852 F.3d 887, 898 (9th Cir. 2017); In re Crayton, 192 B.R. 970, 976 (9th Cir. BAP 1996). 35 Inherent power – “technical” or “inadvertent” violations are “not enough to support a sanction award under the inherent authority.” In re Dyer, 322 F.3d 1178, 1197-98 (9th Cir. 2003) (citation omitted) (creditor and his counsel “announced in [their] letter, in advance, their intent to record the deed [of trust]” and it is “hard to believe” that they would have done so “had they realized that doing so would violate a court order” so their violation of the automatic stay (which is the equivalent of a court order) was inadvertent, although their subsequent failure and refusal to cure that violation was willful). 36 Civil contempt § 105(a) – generally. See endnote Inherent Powers v. Civil Contempt (§105(a , supra. See also In re Zilog, 450 F.3d 996, 1008 n.12 (9th Cir. 2006) (noting that contempt orders for violations of either the discharge injunction or the automatic stay are governed by the same standards). The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. [11 U.S.C. § 105(a)] 37 Civil contempt (§ 105(a – “specific and definite order” required. In re Dyer, 322 F.3d 1178, 1190 (9th Cir. 2003) (citation omitted); In re Lehtinen, 564 F.3d 1052, 1058 (9th Cir. 2009), abrogated on other grounds, as stated in In re Gugliuzza, 852 F.3d 887, 898 (9th Cir. 2017). 38 Civil contempt (§ 105(a – clear and convincing evidence required. FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999). 39 Civil contempt (§ 105(a – enforce via Contested Matter not Adversary Proceeding: Civil contempt must be sought by contested matter rather than an adversary proceeding. See Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1190-91 (9th Cir. 2011). For example, a bankruptcy court may dismiss a complaint seeking contempt sanctions for violation of the discharge injunction. Id. at 1188. If an adversary proceeding has already occurred then the error may be harmless (no need to redo as contested matter). Nash v. Clark Cnty. Dist. Atty's. Office (In re Nash), 464 B.R. 874, 879 (9th Cir. BAP 2012). 40 Civil contempt (§ 105(a – limits on compensatory damages. “A compensatory fine must be limited to actual damages incurred as a result of the violation. Actual loss includes attorneys fees and costs incurred in securing compliance with the order.” In re Count Liberty, LLC, , 274 (Bankr. C.D. Cal. 2007) (internal citations omitted). Consequential damages: can be awarded. In re Costa, 172 B.R. 954, 964-65 (Bankr. E.D. Cal. 1994). Causation: According to one 4th Circuit decision, damages are recoverable to extent that the court finds that the contumacious behavior “significantly contributed to the [harm] and that such a result was forseeable.” In re General Motors Corp., 110 F.3d 1003, 1018 (4th Cir. 1997). 41 Civil contempt (§ 105(a – sanctions payable to party. “[A] fine may be payable to the complainant as compensation for damages caused by the contemnor’s noncompliance.” In re Count Liberty, LLC, , 274 (Bankr. C.D. Cal. 2007). But sanctions are within the bankruptcy court’s “discretion.” In re Bennett, 298 F.3d 1059, 1069-70 (9th Cir. 2002). 42 Civil contempt (§ 105(a – sanctions payable to court. “[A] fine that would be payable to the court is…remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order.” In re Count Liberty, LLC, , 273 n.37 (Bankr. C.D. Cal. 2007) (citation and internal quotation marks omitted). 43 Civil contempt (§ 105(a – attorney fees. “We emphasize that attorneys’ fees are an appropriate component of a civil contempt award.” In re Dyer, 322 F.3d 1178, 1195 (9th Cir. 2003); see also In re Count Liberty, LLC, , 274 (Bankr. C.D. Cal. 2007) (“Actual loss includes attorneys fees and costs incurred in securing compliance with the order.”). See discussion of FEES ON FEES below. 44 Civil contempt (§ 105(a – remedies. (A) Disbarment / Suspension. See In re Computer Dynamics, Inc., 253 B.R. 693, 699 (E.D. Va. 2000) (“Pursuant to the civil contempt power, bankruptcy courts can suspend an attorney from the practice of law and condition reinstatement on compliance with a court order.”). Sanctions Table; NWB Rev. 12/20 (B) Vexatious litigant. In re Stanwyck, 450 B.R. 181, 200 (Bankr. C.D. Cal. 2011) (Carroll, C.J.). (C) Bench warrant / incarceration. “Incarceration is an appropriate coercive sanction for civil contempt so long as the contemnor can avoid the sentence imposed on him, or purge himself of it, by complying with the terms of the original order. When the petitioners carry ‘the keys of their prison in their own pockets,’ the action is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.” In re Count Liberty, LLC, , 274 (Bankr. C.D. Cal. 2007) (internal citations and some internal quotation marks omitted). See also AOUSC memo (6/01) re Bankruptcy Court’s authority to issue bench warrants (body detention requests) to U.S. Marshal. 45 Civil contempt (§ 105(a – “failure to take all reasonable steps within the party’s power to comply” is sanctionable. Reno Air Racing Assn. Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). 46 Civil contempt (§ 105(a – subjective intent is irrelevant, and good faith is not a defense (unless coupled with reasonable interpretation of order). “Because civil contempt serves a remedial purpose, it matters not with what intent the defendant did the prohibited act.” In re Dyer, 322 F.3d 1178, 1191 (9th Cir. 2003) (citation and internal quotation marks omitted); In re Count Liberty, LLC, , 275 (Bankr. C.D. Cal. 2007) (citing cases). Cf. In re Dyer, 322 F.3d 1178, 1191 (9th Cir. 2003) (for violation of the automatic stay, “willfulness” is required but it has a particularized meaning “in this context,” namely it “does not require a specific intent to violate the automatic stay [but] [r]ather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional”) (citations and internal quotations omitted). Compare In re Taggart, 139 S.Ct. 1795_ (2019) (discharge injunction warrants contempt sanctions if there is “no fair ground of doubt” as to whether the inunction barred the creditor’s conduct – i.e., “no objectively reasonable basis for concluding that the creditor’s conduct might be lawful” – so “subjective good faith” is not a defense) (expressly declining to address whether similar principles apply to violations of the automatic stay under § 362(h), which serves different purposes and has different statutory language). 47 Civil contempt (§ 105(a – inability to comply. Inability to comply with the courts order is a defense, but the burden is on the contemnor to show “categorically and in detail” how compliance is “impossible.” FTC v. Affordable Media, 179 F.3d 1228, 1241 (9th Cir. 1999). A “self-induced inability [to comply with the court’s order] is not a defense.” United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980). It is not enough to show “substantial,” “diligent,” or “good faith” efforts to comply (as opposed to making all reasonable efforts to comply). Commodity Futures Trading Comm’n v. Wellington Precious Metals, Inc., 950 F.2d 1525, 1529-30 (11th Cir. 1992) (citations omitted). Caveat: If a coercive sanction “has lost all coercive effect” then it “becomes criminal [contempt].” SEC v. Elmas Trading Corp., 824 F.2d 732, 733 (9th Cir. 1987). 48 Civil contempt (§ 105(a – “technical” or “inadvertent” violations will not support a finding of contempt. In re Count Liberty, LLC, , 275 (Bankr. C.D. Cal. 2007) (citing cases). 49 28 U.S.C. § 1927 – N/A because bankruptcy court is not a “court of the United States.” In re DeVille, 361 F.3d 539, 546 (9th Cir. 2004) (quoting with approval the BAP’s summary that “28 U.S.C. § 1927 does not suffice because the Ninth Circuit does not regard a bankruptcy court as a ‘court of the United States.’”) (citations omitted). 50 Removal – generally. In re DeVille, 361 F.3d 539, 546 (9th Cir. 2004). 51 Removal - costs and expenses of remand. “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c) (2011). 52 Removal- attorney fees. In re DeVille, 361 F.3d 539, 546 (9th Cir. 2004) (“28 U.S.C. § 1447(c) allows a court discretion to grant attorneys’ fees and costs for an improper removal.”). Wide discretion to grant attorneys’ fees and costs for an improper removal: generally they may be awarded only when the removing party lacked an objectively reasonable basis for seeking removal, but bad faith need not be shown. Billington v. Winograde (In re Hotel Mt. Lassen, Inc.), 207 B.R. 935, 943 (Bankr. E.D. Cal. 1997) (citing Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 447 (9th Cir. 1992 ; Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). See discussion of FEES ON FEES below. 53 Stay violations – only “individual” can recover sanctions under § 362(k). A bankruptcy trustee is not an “individual” entitled to an award of sanctions under 11 U.S.C. § 362(k) (formerly § 362(h , nor is a corporation. In re Pace, 67 F.3d 187, 192 (9th Cir.1995); In re Goodman, 991 F.2d 613, 618-20 (9th Cir. 1993). But non-individuals can seek contempt sanctions for violation of the automatic stay. See In re Goodman, 991 F.2d 613, 620-21 (9th Cir. 1993). But see In re Heaton, 697 F. App’x 524, 525 (9th Cir. 2017) ( “creditors and lienholders lack independent standing to appeal an adverse decision regarding a violation of the automatic stay”). 54 Stay violations – willfulness. Unclear state law (about when title to property passed) was insufficient to establish lack of willfulness, because creditor knew of bankruptcy case and did not seek relief from automatic stay. In re Ozenne, 337 B.R. 214, 220-21 (9th Cir. BAP 2006) (“Knowledge of the bankruptcy filing is the legal equivalent of knowledge of the automatic stay. … Likewise, whether [the alleged contemnor] believed in good faith that it had a right to the Property is irrelevant: No specific intent is required; a good faith belief that the stay is not being violated is not relevant to whether the act was ‘willful’ or whether compensation Sanctions Table; NWB Rev. 12/20 Page 11 must be awarded, nor is good faith reliance on the advice of counsel a defense; nor is reliance on a state court's determination.”) (citations and most internal quotation marks omitted). A collection company that knew of the automatic stay, but whose computer mistakenly sends a collection notice, has engaged in “willfull” violation of the automatic stay. In re Campion, 294 B.R. 313 (9th Cir. BAP 2003). But see In re McHenry, 179 B.R. 165, 168-69 (9th Cir. BAP 1995) (“technical” violation of stay did not warrant actual or punitive damages). There is an affirmative duty to “take corrective action” to remedy stay violations, even when the violation was a State Court’s order contravening the automatic stay. Sternberg v. Johnston, 595 F.3d 937, 944-45 (9th Cir. 2010), as amended, overruled on other grounds, In re Schwartz-Tallard, 803 F.3d 1095, 1100 (9th Cir. 2015) (en banc). 55 Stay violations – attorney fees and FEES ON FEES. Debtors have a duty to mitigate attorney fees incurred in response to stay violations. In re Roman, 283 B.R. 1, 11-13 (9th Cir. BAP 1992). As for fees on fees, previously the 9th Circuit had held that such awards are not authorized under § 362(k) [formerly § 362(h)]. See Sternberg v. Johnston, 595 F.3d 937, 1122 n. 3 (9th Cir. 2010) (as amended on denial of petition for rehearing) (fees can be awarded for bringing about an end to stay violation, but not for pursuing a damages award, but leaving open whether such fees could be awarded under the bankruptcy court’s “inherent civil contempt authority”). That has now been overruled en banc: fees on fees can be awarded as part of damages under § 362(k) (In re Schwartz-Tallard, 803 F.3d 1095 (9th Cir. 2015) (en banc even if the debtor is the prevailing appellant rather than the appellee. In re Easley, 910 F.3d 1286 (9th Cir. 2018). Note: As for fees on fees other than under § 362(k), they have been held to be permissible under § 303(i)(1) but generally not permissible under the court's inherent power, pursuant to the "American Rule" (In re S. Cal. Sunbelt Developers, Inc., 608 F.3d 456, 464 (9th Cir. 2010 , but "a common-law exception to the rule permits fee awards in litigation brought to remedy willful violations of court orders." In re Schwartz-Tallard, 803 F.3d 1095, 1098 (9th Cir. 2015) (en banc) (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-18 (1967 . Beyond willful violations of “court orders,” an award of fees on fees might be permissible under the court’s inherent powers if the fee litigation itself involves a party acting "in bad faith, vexatiously, wantonly, or for oppressive reasons.” In re DeVille, 361 F.3d 539, 544 (9th Cir. 2004) (citations and internal quotation marks omitted). See also In re Wallace, 490 B.R. 898, 907-08 (9th Cir. BAP 2013) (unlike ordinary money judgment, which cannot be enforced by contempt, a contempt order may be enforced by second contempt order awarding attorney fees plus $500/day for every day first contempt sanctions were not paid). That said, the court’s inherent powers are subject to various constraints, and obtaining an award of fees on fees is very difficult. See Rubye Taylor, et al. v. James B. Nutter & Company, et al., 2:15-ap-01183-NB, dkt. 133, pp. 2:18-3:16 (awarding fees on fees for conduct found to be in bad faith), reversed (9th Cir. BAP CC-16-1376-KuLTa, 8/9/17, unpublished) (holding that delay in dismissing adversary proceeding, although found to be solely to increase adversary’s litigation costs and to hinder post-foreclosure remedies, was insufficient basis for fees on fees under court’s inherent powers); see also In re Cohen, 2:13-bk-26483-NB, dkt. 1373, PDF pp. 9-10. More generally, “absent specific language or indication to the contrary, a statute permitting an award of ‘damages’ is not a fee-shifting statute, and does not permit an award of fees for obtaining the ‘damages,’” and under that standard the courts cannot award fees on fees under Appellate Rule 38 but may under 28 U.S.C. § 1927 and Rule 11. Blixseth v. Yellowstone Mt. Club, LLC, 854 F.3d 626, 630-32 (9th Cir. 2017). The following pre-Schwartz-Tallard case law also may be informative as to the interaction between § 362(k) and other sanctions/fee shifting authority. See In re H. Granados Comm., Inc., 503 B.R. 726, 734-35 (9th Cir. BAP 2013) (fees incurred in pursuing damages can be awarded under § 105(a), distinguishing Sternberg); compare In re Roman, 283 B.R. 1 (9th Cir. BAP 2002) (relief is not permissible under § 105(a) to the extent that 362(k) provides a remedy). It remains to be determined whether the Supreme Court’s decision in Baker Botts L.L.P. et al., v. Asarco LLC, 135 S.Ct. 2158, 192 L.Ed.2d 208 (2015), will alter the legal analysis of fee shifting, including fees on fees But see generally Warren v. Dill (In re Warren), 532 B.R. 655, 658 (Bankr. D.S.C. 2015) (attorney fees and costs are explicitly authorized by § 362(k), and therefore not limited by Asarco); Mantiply v. Horne (In re Horne), 2016 U.S. Dist. LEXIS 134031, at *5 n.5 (S.D. Ala. Sep. 28, 2016) (same). 56 Stay violations – emotional distress damages. See In re Dawson, 390 F.3d 1139, 1148-49 (9th Cir. 2004) (to support emotional distress damages debtor must show "clear evidence" of "significant harm" caused by stay violation, as distinct, for instance, from the anxiety and pressures inherent in the bankruptcy process; but stay violation need not be "egregious" and corroborating evidence is not necessarily required, and non-experts may testify to manifestations of mental anguish). See also In re Hunsaker, 902 F.3d 963 (9th Cir. 2018) (sovereign immunity did not bar award of emotional distress damages against IRS). 57 Stay violations – punitive damages. Movant must show "reckless or callous disregard of the law or rights of others." In re Bloom, 875 F.2d 224, 228 (9th Cir. 1989). But a "monetary penalty" may not be imposed under § 362(k) unless the stay-violator has received "effective notice," which may include for example receipt of such notice by a specified person, pursuant to § 342(g)(2). 58 Discovery Sanctions – evidentiary presumptions. See Hoffman v. Construction Protective Services, Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (court should explore alternatives to evidentiary sanctions that would preclude the entire cause of action, but in proper circumstances that is permissible); In re Singh (9th Cir. Sanctions Table; NWB Rev. 12/20 BAP 2/26/16, unreported) (reversing terminating sanctions – dismissal for lack of prosecution due to failure to file status report). In Hoffman the Ninth Circuit also held, "we reject the notion that the [trial] court was required to make a finding of willfulness or bad faith" to exclude the evidence. Id. Subsequent decisions make the parameters of this holding somewhat unclear. Compare R&R Sails v. Ins. Co. of Pa., 673 F.3d 1240, 1247-48 (9th Cir. 2012) ("because the sanction amounted to dismissal of a claim, the district court was required to consider whether the claimed noncompliance involved willfulness, fault, or bad faith, … and also to consider the availability of lesser sanctions") (citations omitted), with Toyrrific, LLC v. Karapetian, 606 F. App'x 365, 366 n.1 (9th Cir. 2015) ("We note that there is some tension in our law over the requirement that, before a sanction amounting to dismissal of a claim can be issued, the district court must consider whether the claimed 'noncompliance involved willfulness, fault, or bad faith' and must also consider 'the availability of lesser sanctions.'") (citations omitted). 59 Discovery sanctions – exclusion of witness. See Ortega v. O’Connor, 50 F.3d 778, 779 (9th Cir. 1995). 60 Discovery sanctions – terminating sanctions. See “Failure to Prosecute; Dismissal” below. 61 Failure to Prosecute; Dismissal – extreme circumstances, unreasonable delay. “Dismissal is a harsh penalty and is to be imposed only in extreme circumstances. . . . A dismissal for lack of prosecution must be supported by a showing of unreasonable delay.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (citations omitted). 62 Failure to Prosecute; Dismissal – 5-factor balancing test; Dreith v. Nu Image, Inc., 648 F.3d 779 (9th Cir. 2011). In re Roessler-Lobert, 567 B.R. 560, 568 (9th Cir. BAP 2017) (footnote and citations omitted). No showing of bad faith is required but in most cases the failure to prosecute was “willful.” Roessler-Lobert, 567 B.R. at 568 & n. 8. “Ideally, the bankruptcy court should make explicit findings concerning these factors, but such findings are not required.” Id.; see also Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). Relief from default judgment requires application of the “Falk factors.” See Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984) (per curiam). United States v. Aguilar, 782 F.3d 1101, 1105 (9th Cir. 2015). The Falk factors are: “(1) whether [the party seeking to set aside the default] engaged in culpable conduct that led to the default; (2) whether [it] had [no] meritorious defense; or (3) whether reopening the default judgment would prejudice the other party.” Falk, 739 F.2d 461, 463 (citation and internal quotation marks omitted; alternations in original). 63 All Writs Act – applicability to bankruptcy courts. The All Writs Act applies to “[t]he Supreme Court and all courts established by Act of Congress.” 28 U.S.C. § 1651(a). “Bankruptcy courts, being courts established by Act of Congress, ‘have the power to regulate vexatious litigation pursuant to 11 U.S.C. § 105 and 28 U.S.C. § 1651.’” Goodman v. Cal. Portland Cement Co. (In re GTI Capital Holdings, LLC), 420 B.R. 1, 11 (Bankr. D. Ariz. 2009) (quoting Lakusta v. Evans (In re Lakusta), 2007 WL 2255230, at *3 (N.D. Cal. 2007 ; see also In re Yan, 2013 WL 6801085, at *5 (Bankr. N.D. Cal. Dec. 23, 2013). 64 Local Rules. “Local bankruptcy rules may not ‘enlarge, abridge, or modify a substantive right.’” In re Pham, 536 B.R. 424, 432 (9th Cir. BAP 2015) (citations omitted) (reversing sanctions assessed under local rules). See also In re Jaeger, 213 B.R. 578 (Bankr. C.D. Cal. 1997) (noting that LR 102(5), now LBR 2090-2, provides that the applicable standards of professional conduct are as set forth in District Court Local Civil Rule 83-3, which in turn refers to the applicable standards in the State Bar Act and the Rules of Professional Conduct). 65 Local Rules. See immediately preceding endnote re limits of local rules. 66 Local Rules. See immediately preceding endnote re limits of local rules. 67 Reporting of sanctions to State Bar. Although judicial sanctions must be reported to the State Bar (except sanctions for failure to make discovery or monetary sanctions of less than $1,000), it is the attorney’s responsibility to report that to the State Bar, not the court’s. 68 Refer to District Court for criminal contempt: “We do not preclude the possibility that a bankruptcy court could initiate criminal contempt proceedings by referring alleged contempt to the district court. Nor do we address whether the district court could refer those proceedings back to the bankruptcy court if the parties so consented. See 28 U.S.C. § 157(3) (authorizing the bankruptcy court to hold a jury trial only ‘if specifically designated to exercise such jurisdiction by the district court and with the express consent of all the parties’).” In re Dyer, 322 F.3d 1178, 1194 n.17 (9th Cir. 2003) (additional citations to articles discussing constitutional issues omitted). 69 ABA – Nationwide database. See http://www.americanbar.org/groups/professional_responsibility/services/databank.html. (Possible overlap in reporting where matter also referred to California State Bar – State Bar rep was unable to confirm whether disciplinary reports go to databank, awaiting call back from ABA.) 70 Settlements disbarring/restricting attorneys. California law and rules limit the ability of a settlement between private parties to restrict a professional’s practice. See Cal. B&P Code 16600 and Rule 1-500 (parties cannot limit professional’s practice). Compare, e.g., B&P Code 6075, 6092.5(i), 6093, 6100 (disciplinary proceedings, and settlement thereof, can limit attorneys’ practice). See also In re J.T. Thorpe Inc., 870 F.3d 1121 (9th Cir. 2017) (vacating and remanding for consideration whether federal public policy regarding asbestos trusts supersedes California law, thereby permitting enforcement of private parties’ agreement that attorney would discontinue asbestos practice). Sanctions Table; NWB Rev. 12/20 Page 13
=== Sample Order ===
Case 2:18-bk-24302-NB Doc 183 Filed 08/13/20 Entered 08/13/20 09:29:59 Desc Main Document Page 1 of 7 FILED & ENTERED AUG 13 2020 CLERK U.S. BANKRUPTCY COURT Central District of California BY DEPUTY CLERK ghaltchi -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES DIVISION In re: GL Master Inc., Debtor(s) Case No.: 2:18-bk-24302-NB Chapter: 7 ORDER REGARDING EVIDENTIARY HEARING ON ORDER TO SHOW CAUSE Hearing Date: Date: August 19, 2020 Time: 9:00 a.m. Place: Courtroom 1545 255 E. Temple Street Los Angeles, CA 90012 [But see below re appearances via Zoomgov] On July 24, 2020 this Bankruptcy Court issued an order directing Debtor, Freda Wang, Thomas Polis, Lynn Chao, and The Law Offices of Lynn Chao APC (collectively, “Responding Parties”) to appear and show cause why they should not be held in contempt and why compensatory and coercive sanctions should not be imposed on them for failing to abide by this Bankruptcy Court’s orders for discovery under Rule 2004 (Fed. R. Bankr. P.) (the “OSC,” dkt. 173). The OSC set the above-captioned hearing date and time, directed the parties to meet and confer regarding possible Case 2:18-bk-24302-NB Doc 183 Filed 08/13/20 Entered 08/13/20 09:29:59 Desc Main Document Page 2 of 7 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidentiary hearing procedures and lodge a proposed order establishing such procedures. The OSC concluded: The deadline for the Responding Parties’ briefs to be filed and served is August 4, 2020. The deadline for the Alleged Employees’ responsive brief is August 11, 2020, which is also the deadline for the parties to lodge proposed order(s) for the evidentiary hearing procedures. The failure of any party to meet and confer and/or agree to terms of a proposed form of order will be deemed as that party’s consent to the procedures adopted by this Court and any arguments of prejudice will be deemed waived and forfeited. [OSC (dkt. 173), p.9:5-10.] As of the preparation of this order, no briefs appear on the docket, nor has any party lodged any proposed order setting evidentiary hearing procedures different from or in addition to those established in the OSC. Accordingly, the parties are deemed to have waived and forfeited (i) any further briefing on the subjects of the OSC, beyond what was in the motion for an OSC and supporting and opposing papers, and (ii) any objections to this Bankruptcy Court’s procedures for conducting the evidentiary hearing on the OSC (the “Trial”). (1) No party has established that the notice of appeal has any current effect on this Bankruptcy Court’s jurisdiction This Bankruptcy Court is aware of the Notice of Appeal (dkt. 177) of the OSC. But this Bankruptcy Court ruled during the 2004 examinations conducted on August 3, 2020 that the OSC is an interlocutory order and therefore, unless and until the Bankruptcy Appellate Panel for the Ninth Circuit (the “BAP”) grants leave to appeal, the appeal has no effect on this Bankruptcy Court’s jurisdiction. See 28 U.S.C. 158(a)(3); Cato v. Fresno City, 220 F.3d 1073 (9th Cir. 2000) (discovery sanction order not appealable); Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007) (“When a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply.”) (citation omitted). See also, e.g., In re Sherman, 491 F.3d 948, 967 (9th Cir. 2007) (even with respect to the order or judgment on appeal, bankruptcy court retains Case 2:18-bk-24302-NB Doc 183 Filed 08/13/20 Entered 08/13/20 09:29:59 Desc Main Document Page 3 of 7 -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 jurisdiction “to implement or enforce the judgment or order, although it may not alter or expand upon the judgment"; and ‘[i]f a party wants to stay all of the proceedings in bankruptcy court while an appeal is pending, it must file a motion for a stay”) (citations and internal quotation marks omitted). (2) Procedures for evidentiary hearing on the OSC In light of the current COVID-19 pandemic and closure of this Bankruptcy Court’s facilities (see General Order No. 20-06), and pursuant to Rule 43(a) (Fed. R. Civ. P., incorporated by Rule 9017, Fed. R. Bankr. P.), there is “good cause in compelling circumstances” to conduct the Trial remotely, through videoconferencing technology. Further, this Bankruptcy Court finds that the procedures adopted herein will provide "adequate safeguards" for purposes of Federal Rule 43(a) and ensure due process of law. These procedures will (a) enable this Bankruptcy Court to identify, communicate with, and judge the demeanor of all witnesses in real time, (b) enable counsel for the parties to see and hear the witness testimony, interpose objections, and communicate with this Bankruptcy Court in real time, (c) enable the parties, the witnesses and this Bankruptcy Court to have simultaneous access to an identical set of pre-marked exhibits, (d) provide safeguards to avoid any undue influence or interference with the witnesses in connection with their testimony, and (e) preserve the ability of any witness to be represented by counsel during the proceeding, and to communicate with such counsel as this Bankruptcy Court deems appropriate. Accordingly, IT IS HEREBY ORDERED: (a) Video hearing. The evidentiary hearing will be conducted via Zoomgov. Participants in the Trial will be connected with the courtroom using that technology but will not be physically present in the courtroom. (b) Zoomgov link, exhibits, and other procedures. As was previously done in connection with the Rule 2004 examinations and resolution of discovery disputes conducted on August 3, 2020, (i) this Bankruptcy Court will send an email to counsel for the Alleged Employees with a link and password to use Zoomgov at Case 2:18-bk-24302-NB Doc 183 Filed 08/13/20 Entered 08/13/20 09:29:59 Desc Main Document Page 4 of 7 -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the time of the Trial, (ii) that email will direct such counsel to forward those instructions to all other parties and their counsel, (iii) exhibits must be received by this Bankruptcy Court either in paper format or via facsimile (to the facsimile number provided in the email) no later than Monday, August 17, 2020 at 10:00 a.m. (the “Key Deadline”), except that impeachment documents may be introduced via the “share screen” function in Zoomgov, (iv) exhibits must be served on opposing counsel via email in “.pdf” format (Adobe Acrobat), or as otherwise agreed in writing, by the Key Deadline, and (v) except as modified herein, the “Posted Procedures of Judge Bason” (available at www.cacb.uscourts.gov) regarding evidentiary hearings/trials apply (e.g., direct testimony by declaration). (c) Required Equipment. For purposes of participation in the Trial, each participating attorney and each witness must have simultaneous access to (i) a computer, equipped with a camera, that is capable of receiving and transmitting video using Zoomgov, (ii) internet browsing software that is adequate to facilitate Zoomgov, (iii) an Internet connection with bandwidth adequate to support the individual's use of Zoomgov, and (iv) Adobe Acrobat Reader for purposes of reviewing exhibits, as directed by counsel or this Bankruptcy Court. Counsel are responsible for verifying compliance with the foregoing not only for themselves but also for each witness with whom they are affiliated (e.g., Mr. Polis is responsible for verifying compliance for each of the Responding Parties). (d) Limitation on witnesses. This Bankruptcy Court’s tentative ruling is that, because all parties failed to file any briefs or lodge any proposed pretrial order by the deadlines in the OSC, no witnesses are permitted other than persons who filed declarations in connection with the motion for an OSC and Responding Parties. But if any party seeks to introduce other witnesses then this Bankruptcy Court will address at the commencement of the Trial if that is permissible. Case 2:18-bk-24302-NB Doc 183 Filed 08/13/20 Entered 08/13/20 09:29:59 Desc Main Document Page 5 of 7 -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (e) Prior Notice of Trial Participants. No later than the Key Deadline, the parties shall (i) file a declaration of counsel disclosing the identity of the witnesses they intend to present at the Trial, the subject matter about which each witness is expected to testify, and all attorneys who will participate in the Trial, (ii) file and serve via email any direct testimony via declaration of witnesses with whom they are affiliated, and (ii) provide to the courtroom deputy [[email protected]], and to each other, an email address and telephone number for each witness and each attorney (that information should not be filed on the public docket, for reasons of privacy). The telephone number provided should be a number at which the attorney or witness can be reached during the Trial in the event of an interruption in the audio or video feed. (f) Trial exhibit format. The .pdf files shall be named sequentially. The Alleged Employees’ exhibits (aka Creditors’ exhibits) shall be numbered as follows: C_Ex_1, C_Ex_2, C_Ex_3, etc. Responding Parties’ exhibits (aka Debtor’s exhibits) shall be lettered as follows: D_Ex_A, D_Ex_B, D_Ex_C, etc. Upon receipt of the .pdf documents, each attorney and witness shall take the steps necessary to ensure that all electronic documents can be successfully opened and are readily available during the Trial. (g) Motions in limine. The parties must file and serve any motions in limine no later than Tuesday, August 18 at 10:00 a.m. (h) Remote Witness Testimony. Having found "good cause in compelling circumstances" and "adequate safeguards," any witness called to testify at the Trial shall testify by contemporaneous transmission from a different location into the courtroom (each a "Remote Witness"). All Remote Witnesses shall be placed under oath and their testimony shall have the same effect and be binding upon the Remote Witness in the same manner as if such Remote Witness was sworn and testified in open court. Each Remote Witness shall provide their Case 2:18-bk-24302-NB Doc 183 Filed 08/13/20 Entered 08/13/20 09:29:59 Desc Main Document Page 6 of 7 -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 testimony from a quiet room and must situate themselves in such a manner as to be able to both view the video feed and be seen by the Court. (i) Safeguards for Remote Witness testimony. While the Remote Witness is sworn and testifying, and except as otherwise ordered on the record by this Bankruptcy Court: (i) no person may be present in the room from which the Remote Witness is testifying, (ii) the Remote Witness may not have in the room any documents except the exhibit about which the Remote Witness is being questioned and any declaration the Remote Witness has submitted in lieu of direct testimony, and (iii) the Remote Witness may not communicate with any other person regarding the subject of their testimony, by electronic means or otherwise. Each Remote Witness must be prepared at any time (i) to move their camera, (ii) to share their computer screen, and (iii) to verify by any other means compliance with the provisions of this order. If the witness or their counsel seek to communicate with one another, either shall openly request a recess for such purpose. If such request is granted by the Court, the witness and their counsel may privately confer "offline," i.e., by telephonic means that are not transmitted to the other parties. Counsel are responsible for providing a copy of this order to each witness with whom they are affiliated and reviewing this order with each such witness. (j) Courtroom Formalities. Although conducted using telephonic and videoconferencing technologies, the Trial constitutes a court proceeding. No person shall record— from any location or by any means—the audio or video of the Trial. The audio recording created and maintained by this Bankruptcy Court shall constitute the official record of the Trial. Further, the formalities of a courtroom shall be observed. Counsel and witnesses shall dress appropriately, exercise civility, and otherwise conduct themselves in a manner consistent with the dignity of this Bankruptcy Court and its proceedings. Case 2:18-bk-24302-NB Doc 183 Filed 08/13/20 Entered 08/13/20 09:29:59 Desc Main Document Page 7 of 7 Date: August 13, 2020 -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (k) Technical Pre-Trial Conference. On Monday, August 17, 2020 at 11:00 a.m., this Bankruptcy Court will hold a technical pre-trial conference for the purpose of testing both the telephonic and video conference technologies. All parties and all witnesses must participate in the technical pre-trial conference. All participants are admonished not to discuss the substance of the Trial at the technical pre-trial conference, but instead limit their comments to the functionality of the technology and any procedural matters that relate to the technology. (l) Retention of Jurisdiction. This Bankruptcy Court retains jurisdiction with respect to all matters arising from or related to this Order. ###
=== Printable version of Judge Bason’s Telephonic Appearances Procedures ===
Judge Bason's Procedures for In-Person, Video & Telephonic Appearances **Hearings in Judge Bason’s courtroom (1545) are now simultaneously (1) IN PERSON in the courtroom, unless the Court has been closed (check the Court’s website for public notices), (2) via ZOOMGOV video, and (3) via ZOOMGOV telephone. You are free to choose any of these options, except that evidentiary hearings/trials must be in person in the courtroom (unless otherwise ordered). • For chapter 13 matters, such as the procedures for showing the Chapter 13 Trustee proof of last-minute payments, check the Trustee’s procedures. • For trials, see the two forms of sample trial procedure orders posted on Judge Bason’s portion of the Court’s website (www.cacb.uscourts.gov under Judges > Bason > Instructions/Procedures). Meet and confer with other parties about the precise procedures you would like for your evidentiary hearing, and when appropriate lodge a proposed pretrial order. For instructions to appear via ZoomGov (either telephonically or by video), please see the tentative ruling for the first matter on calendar for the date of your hearing (i.e., page 1 of the posted tentative rulings). You do not need to call Chambers for advance approval. ZoomGov appearances are free for all participants. The audio (but not video) will be recorded as the official record. See also https://www.cacb.uscourts.gov/news/zoom-video-hearing-guide- participants. Appearances via CourtCall are no longer permitted (for technical reasons, it is not possible to have both Zoomgov and CourtCall running simultaneously). Please continue to monitor this website for updates. Thank you. To appear by telephone or video, follow these procedures: 1. Mute your microphone to avoid interfering with other hearings in progress. If you are appearing by phone you can un-mute by pressing *6 on Zoomgov. 2. Noise, poor sound quality, or lack of standard telephone/video etiquette must be immediately corrected or it will result in terminating your privilege to appear by telephone/video, and possibly other sanctions or remedies such as being disconnected from the hearing – you are permitted to use mobile phones etc., but you do so at your own risk. 3. Identify yourself for the record every time you speak. Note: The judge permits parties to listen in without identifying themselves, subject to the usual rules about sealing the courtroom etc. 4. Recording or retransmission is strictly prohibited and may result in sanctions. Printable version of Judge Bason’s Telephonic Appearances Procedures Effective January 6, 2022
=== Appointed October 24, 2011 by the United States Court of Appeals for the Ninth Circuit ===
N E W S R E L E A S E October 20, 2011 Contact: David Madden, (415) 355-8800 New Judge Appointed to U.S. Bankruptcy Court in Los Angeles SAN FRANCISCO — Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit announced today the appointment of Los Angeles attorney Neil William Bason to serve as a judge of the U.S. Bankruptcy Court for the Central District of California. Mr. Bason, 49, who will maintain chambers in Los Angeles, is scheduled to take his oath of office on October 24, 2011. He will fill a new judgeship authorized in March 2011 by the Judicial Conference of the United States. Mr. Bason has been special counsel at Duane Morris LLP in Los Angeles since 2009. He represents bankruptcy trustees in recovery and disposition of property and claim objections, and loan servicers and receivers in receivership matters, and handles other general bankruptcy and commercial law matters. He was special counsel from 2008 to 2009 at Howard Rice Nemerovski Canady Falk & Rabkin, P.C., where he represented debtors, creditors, equity holders and purchasers in complex Chapter 11 proceedings. Mr. Bason also served as a law clerk to Bankruptcy Judge Dennis Montali of the Northern District of California from 2000 to 2008. He had been an associate for the former law firm of Hovis, Smith, Stewart, Lipscomb & Cross, LLP, 1996 to 1999, and a contract attorney for various law firms from 1993 to 1996. A native of Washington, D.C., Mr. Bason received his B.A. from Johns Hopkins University in 1984. His undergraduate studies includes attending the University of London from 1982 to 1983. He received his J.D. in 1988 from Boston University, School of Law, where he graduated magna cum laude and was a note editor for the Boston University Law Review. He received the American Jurisprudence Award in land development law and professional responsibility. – more – Mr. Bason has served as a panelist and speaker on a variety of bankruptcy topics. He was a guest lecturer at the University of California, Hastings College of the Law, in 2008, and was a member and co-vice chair of the Insolvency Law Committee of the Business Law Section of the State Bar of California. Mr. Bason has also volunteered with Project Open Hand and was a past participant in the AIDS Legal Referral Panel, providing pro bono assistance to individuals. The U.S. Bankruptcy Court for the Central District of California is authorized 24 bankruptcy judges. The court is one of the nation’s busiest, reporting 138,585 filings in fiscal year 2010, up 42.2 percent from the prior year. Judges of the U.S. Court of Appeals for the Ninth Circuit have statutory responsibility for selecting and appointing bankruptcy judges in the nine western states that comprise the Ninth Circuit. The court uses a comprehensive merit selection process for the initial appointment and for reappointments. Bankruptcy judges serve a 14-year, renewable term, at a salary of $160,080, and handle all bankruptcy-related matters under the Bankruptcy Code. # # #
=== Reappointed October 24, 2025 by the United States Court of Appeals for the Ninth Circuit (Current term expires October 24, 2039) ===
N E W S R E L E A S E October 14, 2025 Contact: Katherine Rodriguez [email protected] Ninth Circuit Reappoints Bankruptcy Judges in Central District of California SAN FRANCISCO — Judges of the U.S. Court of Appeals for the 9th Circuit have reappointed Chief U.S. Bankruptcy Judge Julia W. Brand and U.S. Bankruptcy Judge Neil W. Bason, both from the U.S. Bankruptcy Court for the Central District of California, to their second 14-year terms, both effective October 24. Judge Brand was appointed a bankruptcy judge to the Central District bankruptcy bench on Oct. 24, 2011. The Ninth Circuit later appointed her to the Ninth Circuit Bankruptcy Appellate Panel for a seven-year term commencing on Dec. 1, 2016, and for an additional three-year term in 2023. Judge Brand became chief judge of the Ninth Circuit Bankruptcy Appellate Panel in May 2025 and chief judge of her court in June 2025. Prior to her appointment, Judge Brand was in private practice for more than 20 years in Los Angeles, where she was a shareholder in the law firm of Brownstein Hyatt Farber Shreck LLP from 2010 to 2011. Before that, she was of counsel for 11 months at Danning Gill Diamond & Kollitz LLP; a partner at Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP from 2007 to 2009; an associate and then a partner at Katten Muchin Rosenman LLP from 1991 to 2007; and an associate at Gendel Raskoff Shapiro & Quittner, and at Bolton Dunn & Moore. Judge Brand received her B.A. from the University of California at Los Angeles in 1981 and her J.D. in 1985 from the University of Southern California, Gould School of Law, where she served as editor of the Computer Law Journal and received the American Jurisprudence Award for Labor Law. Judge Brand maintains chambers in Los Angeles. Judge Bason was also appointed a bankruptcy judge to the Central District bankruptcy bench on Oct. 24, 2011. Before his appointment to the bench, Judge Bason was special counsel at Duane Morris LLP in Los Angeles from 2009 to 2011 and was special counsel at Howard Rice Nemerovski Canady Falk & Rabkin, P.C., from 2008 to 2009. Judge Bason clerked for U.S. Bankruptcy Judge Dennis Montali of the Northern District of California from 2000 to 2008. Judge Bason was an associate for the former law firm of Hovis, Smith, Stewart, Lipscomb & Cross, LLP, 1996 to 1999, and a contract attorney for various law firms from 1993 to 1996. −more− Page 2 of 2 Judge Bason graduated with a B.A. from Johns Hopkins University in 1984. His undergraduate studies included attending the University of London from 1982 to 1983. He received his J.D. in 1988 from Boston University, School of Law, where he graduated magna cum laude and was a note editor for the Boston University Law Review. The U.S. Bankruptcy Court for the Central District of California, the largest bankruptcy court in the nation, reported 25,911 bankruptcy filings in calendar year 2024. The court is authorized 21 judgeships. Bankruptcy judges serve a 14-year renewable term and handle all bankruptcy-related matters under the U.S. Bankruptcy Code. Judges of the U.S. Court of Appeals for the Ninth Circuit have statutory responsibility for selecting and appointing bankruptcy judges in the nine western states that comprise the Ninth Circuit. The court uses a comprehensive merit selection process for the initial appointment. For reappointments, the court conducts a performance review and considers public comment evaluations. # # #
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