Chapter 11 – Motions to Dismiss or Convert

(a) Applicability. This Rule applies to motions to dismiss or convert a case pursuant to 11 U.S.C. § 1112. (b) Selecting a Hearing Date. Each division of the Court maintains a chapter 11 dismissal motion calendar.

The Court provides hearing date information on its website. All dismissal motions must be set for hearing on the calendar of the division to which the case is assigned. 18 (1) Notice Period. Pursuant to Fed. R. Bankr. P. 9006(c), the Court finds cause exists to shorten the time to object to 14 days.

(2) Hearing Date. A party filing a dismissal motion in a pending chapter 11 case must select from the calendar of available hearing dates a proposed hearing date, which must be the latest hearing date available on the assigned judge’s calendar that is not more than 30 days from the date the dismissal motion is filed with the Court. In the event the movant sets a hearing date beyond 30 days, the movant is deemed to have waived its right under 11 U.S.C. § 1112(b)(3) to a hearing within 30 days and a decision within 15 days of the commencement of the hearing. (3) Notice of Hearing.

Subject to the time limitations set forth in L.B.R. 2081-3(b)(1) and (2), the movant must comply with the provisions of L.B.R. 9013-1. The notice of hearing must specify the following: (A) the hearing date, time and location; (B) that an objection and request for hearing must be filed by a date certain that is at least 14 days after notice of the motion; and (C) that, if no objection is timely filed, the requested relief in the motion may enter without a hearing, upon the filing of a Certificate of Non-contested Matter. (4) Notice. The movant must serve the notice and motion on the debtor, the debtor's attorney, the United States Trustee, trustee, and parties requesting notice.

The movant must also serve the notice on all creditors and parties in interest. (c) Procedures for Preliminary Hearings. The following procedures apply at preliminary hearings on motions to dismiss: (1) No testimony will be taken. The Court will only accept evidence by way of an oral offer of proof and exhibits.

Such offers must provide sufficient detail to enable the Court to make specific findings based thereon and must include the identity of the witnesses available to testify at an evidentiary hearing and an explanation of their expected testimony. Written summaries of witnesses’ testimony are not required but may be submitted. (2) Parties must exchange all exhibits they intend to use, or may reasonably anticipate using, 24 hours prior to the preliminary hearing. The exhibits must be tendered to the Court at the hearing, together with a statement identifying the witness or witnesses who would be called to identify and lay the foundation for the introduction of such exhibits.

(3) Objections to tendered evidence should be made at the conclusion of each party’s declaration. Any objection must identify the evidence objected to and specify the grounds for the objection. 19 (4) The Court will treat the hearing as a preliminary hearing and, based on the proffers of evidence, if the movant establishes sufficient cause, may set the matter over for a final hearing. In the alternative, the Court may consider the offers of proof and, absent the need for an evidentiary hearing, grant or deny the request for dismissal.

(5) Expert Witnesses. Any party anticipating the use of an expert witness for a final hearing will, at the preliminary hearing, comply with Fed. R. Civ. P. 26(a)(2) as incorporated by Fed. R. Bankr. P. 7026. (d) Telephonic Hearings. Parties, through their attorneys, are required to attend the hearing in person except on prior request and approval of a telephonic appearance by the judge to whom the case is assigned.

Parties must request telephonic appearance by filing a motion. If the Court permits a telephonic appearance, the parties must exchange witness lists and exhibits and file them with the Court no later than 24 hours prior to the hearing. (e) Waiver of 30 Day Hearing. In the event that the movant does not select a hearing date pursuant to L.B.R. 2081-3(b), movant must follow the motion practice procedures set forth in L.B.R. 9013-1, and comply with the notice period as directed by Fed. R. Bankr. P. 2002(a)(4).

Using the L.B.R. 9013-1 procedures constitutes a waiver by the movant of the hearing and ruling time requirements of 11 U.S.C. § 1112(b)(3). Commentary The L.B.F. 9013-1.3, Certificate of Non-contested Matter and Request for Entry of Order should be used when no objection is timely filed as referenced in L.B.R. 2081- 3(b)(3)(C). Selecting a hearing date is intended to make it possible for the parties and the Court to comply with the notice requirements of Fed. R. Bankr. P. 2002(a)(4) and the hearing requirements of 11 U.S.C. § 1112(b)(3). In order to best comply with the Bankruptcy Code, the Court has found cause to shorten the notice period for self-calendared motions pursuant to Fed. R. Bankr. P. 9006(c).

20 L.B.R. 2082-1. Chapter 12 – General (a) Motion to Confirm and Order Confirming Chapter 12 Plan. (1) Motion to Confirm. The debtor must file with the plan a motion to confirm in substantial conformity with L.B.F. 2082-1.1.

This debtor must verify the motion and serve it on the chapter 12 trustee, all creditors, and parties in interest. The motion must contain facts sufficient to enable the Court to make appropriate findings in accordance with the requirements of chapter 12. (2) Order of Confirmation. The debtor must file with the plan a proposed order of confirmation in substantial conformity with L.B.F. 2082-1.2.

The Clerk, or other entity as the Court may direct, must send notice thereof to the debtor, chapter 12 trustee, all creditors, equity security holders, and other parties in interest. (b) Notice and Hearing on Motion to Confirm Chapter 12 Plan. (1) Contested Matter. Hearings on motions to confirm Chapter 12 plans are contested matters subject to Fed. R. Bankr. P. 9014 and the service requirements of Fed. R. Bankr. P. 7004.

(2) Notice. (A) Form and Service. The debtor must prepare a notice in substantial conformity with L.B.F. 2082-1.3, and must serve a copy of the notice, the motion to confirm, and the plan on the chapter 12 trustee and all creditors and parties in interest. (B) Contents.

The notice must contain the date for the confirmation hearing and the date for filing objections to the plan. At the time the plan is filed the debtor must obtain from the Court the date for the hearing on confirmation of the plan. Unless the Court fixes a shorter period, notice of the hearing must be given not less than 21 days prior to the hearing. (C) Certificate of Service.

The debtor must file a copy of the notice with the Court within three days after service thereof, and must file with it a certificate of service showing compliance with this Rule. (3) Objections. Objections to confirmation of the plan must be filed with the Court and served on the debtor, the chapter 12 trustee, and on any other entity designated by the Court, at least seven days prior to the hearing or within such other time as may be fixed by the Court. Objections must clearly specify the grounds upon which they are based, including the citation of supporting legal authority, if any.

The Court will not consider general objections. 21 (4) Hearing. (A) If no objection to confirmation is timely filed, the Court, at the hearing on confirmation, may determine that the plan has been proposed in good faith and not by any means forbidden by law without receiving evidence on those issues. The Court may enter an order confirming the plan, if it otherwise meets the requirements of 11 U.S.C. §§ 1222 and 1225, based on such evidence and/or representations as are sufficient to the Court.

(B) If objections to confirmation are filed, the Court will use the hearing on confirmation as a preliminary hearing and status conference for the purposes of (i) framing the issues to be heard at the final hearing on confirmation; (ii) the entry of orders pertaining to discovery; (iii) the setting of the final hearing on the confirmation of the plan; and (iv) the entry of such other orders pertaining to the debtor’s motion to confirm as are appropriate. (C) No evidence will be taken and no witnesses need appear at the first hearing on confirmation. (D) In accordance with 11 U.S.C. § 1224, except for cause, the hearing must be concluded not later than 45 days after the filing of the plan. (c) Amending a Chapter 12 Plan Prior to Confirmation.

In the event the debtor amends the original chapter 12 plan prior to confirmation, the amended plan, and such notice as the Court may order, must be served upon the chapter 12 trustee and all creditors and parties in interest, or as otherwise ordered by the Court. If the plan is amended after the filing of a motion to confirm, a new motion to confirm verified by the debtor and conforming to the amended plan, must be filed. A motion to confirm an amended plan acts as a notice of withdrawal of, or a motion to withdraw, any previously filed motion to confirm and must be subject to Fed. R. Bankr. P. 7041. (d) Modification of Chapter 12 Plan after Confirmation.

In the event the debtor, the trustee, or the holder of an allowed unsecured claim desires to modify a confirmed chapter 12 plan, the movant must file the proposed modified plan together with a motion requesting modification which must state with particularity the date the plan was originally confirmed, the reason for the modification and the effect upon distribution to each creditor class should the modification be approved. If the modification is proposed after the expiration of the period for the filing of claims, service may be limited to the trustee, any party expressly affected by the modification and upon those creditors who have filed proofs of claim. 22 L.B.R. 2083-1. Chapter 13 – General (a) Pre-confirmation Payments Pursuant to 11 U.S.C. § 1326(a)(1).

Unless otherwise ordered by the Court, all pre-confirmation adequate protection payments made by the debtor pursuant to 11 U.S.C. § 1326(a)(1) must be paid to the chapter 13 trustee, not the secured claimant. The pre-confirmation plan payments to the trustee must include the amount required under 11 U.S.C. § 1326(a)(1), plus the necessary trustee’s fee. (b) Calculation of Adequate Protection. For the purpose of this Rule, calculation of adequate protection is calculated as 1% of the outstanding principal balance due as of the date of the filing of the petition, unless otherwise ordered by the Court.

(c) Creditor’s Rights. Payment of pre-confirmation adequate protection is without prejudice to the secured creditor’s right to object to confirmation of the debtor's plan or to seek determination as to the value of the claim or the amount needed to provide adequate protection. (d) Pre-confirmation Disbursements. Pre-confirmation disbursements by the chapter 13 trustee under 11 U.S.C. § 1326(a)(1) are hereby authorized without further order, but such disbursements must not be made unless such creditor has filed a proof of claim with the Court.

Pre-confirmation disbursements under 11 U.S.C. § 1326(a)(1) must commence within 30 days of filing the proof of claim, unless the trustee has not received sufficient or good funds to make such payment. The trustee is authorized to deduct all 11 U.S.C. § 1326(a)(1) pre-confirmation disbursements from an allowed claim and to retain the amount necessary to pay the trustee’s statutory fee based upon the pre-confirmation payments distributed by the trustee.