UNITED STATES BANKRUPTCY COURT

DISTRICT OF HAWAII

 

LOCAL BANKRUPTCY RULES

Rule

 

Page

1001-1

Scope of Rules …………………………………………………………………………………

  1

1005-1

Petition – Caption ……………………………………………………………………………

  2

1007-1

Lists, Schedules, and Statements …………………………………………………….

  2

1007-2

1007-3

List of Creditors .……………………………………………………………………………..

List of 20 Largest Creditors in Chapter11 Case ………………………………..

  4

  5

1009-1

Amendments to Lists and Schedules ……………………………………………….

  5

1009-2

Correction of Social Security Number ……………………………………………..

  5

1015-1

Joint Administration ………………………………………………………………………..

  6

1017-1

Conversion of Chapter 7 Cases ………………………………………………………..

  7

1072-1

Places of Holding Court ……………………………………………………………………

  7

1074-1

Corporations and Other Artificial Entities ………………………………………..

  7

2002-1

Notice of Preferred Addresses …………………………………………………………

  8

2003-1

Meeting of Creditors ……………………………………………………………………….

  8

2004-1

Rule 2004 Examinations …………………………………………………………………..

  9

2014-1

Employment of Professionals .……………….………………………………………..

10

2015-6

Mail Redirection ………………………………………………………………………………

10

2015-7

Monthly Operating Reports ……………………………………………………………..

10

2015-8

Debtor’s Books and Records …………………………………………………………….

11

2015-9

Trustees – Interim Reports ……………………………………………………………….

12

2016-1

Compensation of Professionals ………………………………………………………..

12

2070-1

Estate Administration ……………………………………………………………………….

18

2072-1

Notice to Other Courts ……………………………………………………………………..

18

2083-1

Chapter 13 – General ……………………………………………………………………….

19

2090-1

Attorneys – Admission to Practice ……………………………………………………

21

2091-1

Attorneys – Withdrawal and Substitution …………………………………………

22

3001-2

Requests to Pay Administrative Expenses …………………………………………

24

3002-1

Electronic Filing of Proof of Claim …………………………………………………….

25

3003-1

Chapter 11 Claims Bar Date ………………………………………………………………

25

3004-1

Claims Filed on Behalf of Creditor …………………………………………………….

26

3007-1

Claims – Objections ………………………………………………………………………….

26

3010-1

Dividends – Small ……………………………………………………………………………..

26

3011-1

Unclaimed Funds ………………………………………………………………………………

27

3015-1

Chapter 13 – Plan ……………………………………………………………………………..

28

3015-2

Chapter 13 – Plan Amendment and Modification …………………………….

30

3015-3

Chapter 13 – Confirmation ……………………………………………………………….

31

3017-1

Disclosure Statement – Approval………………………………………………………

32

3017-2

Disclosure Statement – Small Business Cases …………………………………..

33

3018-1

Ballots – Voting on Plans ………………………………………………………………….

34

3020-1

Chapter 11 – Confirmation ……………………………………………………………….

34

3022-1

Chapter 11 – Final Decree …………………………………………………………………

35

3070-1

Chapter 13 – Payments …………………………………………………………………….

35

3070-2

Chapter 13 – Distributions ………………………………………………………………..

36

4001-1

Automatic Stay – Relief From ……………………………………………………………

39

4001-2

Cash Collateral and Postpetition Financing ……………………………………….

42

4001-5

Automatic Stay – Extending or Imposing Stay; Confirming No Stay in Effect ………………………………………………………………………………………………..

 

43

4003-1

Exemptions ………………………………………………………………………………………

44

4004-3

Discharge of Individual Debtor …………………………………………………………

45

4008-1

Reaffirmation …………………………………………………………………………………..

46

5001-2

Clerk – Location ………………………………………………………………………………..

47

5005-1

Filing Papers – Requirements ……………………………………………………………

47

5005-2

Filing Papers – Number of Copies ……………………………………………………..

48

5005-4

Electronic Filing ………………………………………………………………………………..

48

5011-1

Withdrawal of Reference …………………………………………………………………

52

5073-1

Photography, Recording Devices, & Broadcasting …………………………….

53

5077-1

Transcripts and Recordings ………………………………………………………………

53

5081-1

Fees – Form of Payment …………………………………………………………………..

55

6004-1

Sale of Estate Property ……………………………………………………………………..

55

6006-1

Executory Contracts and Unexpired Leases ………………………………………

57

6070-1

Tax Information Filed with Court ………………………………………………………

57

6071-1

Property of the Estate……………………………………………………………….………

58

7001-2

Effect of Dismissal of Bankruptcy Case on Pending Adversary Proceedings ……………………………………………………………………………………..

 

58

7001-3

Civil RICO Claims ………………………………………………………………………………

59

7003-1

Cover Sheet ………………………………………………………………………………………

59

7007-2

Statement of Non-Opposition …………………………………………………………..

59

7016-1

Pretrial Procedures …………………………………………………………………………..

59

7026-1

Discovery ………………………………………………………………………………………….

61

7030-1

Depositions; Original Transcripts ………………………………………………………

63

7054-1

Adversary Proceedings - Taxation of Costs ………………………………………

63

7054-2

Adversary Proceedings - Attorney Fees and Non-Taxable Expenses …

64

7055-1

Default ……………………………………………………………………………………………..

64

7056-1

Summary Judgment ………………………………………………………………………….

65

7067-1

Registry Fund ……………………………………………………………………………………

66

7067-2   

Bonds ……………………………………………………………………………………………….

67

8001-1 

Notice of Appeal ……………………..……………………………………………………….

67

9003-2

Confidentiality ………………………………………………………………………………….

68

9003-5

Gratuities ………………………………………………………………………………………….

68

9004-1

Papers – Requirements of Form ……………………………………………………….

68

9006-1

Time Periods …………………………………………………………………………………….

69

9009-1

Forms ……………………………………………………………………………………………….

70

9011-1

Attorneys – Duties ……………………………………………………………………………

70

9011-2

Pro Se Parties ……………………………………………………………………………………

70

9013-1

Motion Practice ………………………………………………………………………………..

70

9013-2

Briefs and Memoranda of Law ………………………………………………………….

73

9013-3

Certificate of Service …………………………………………………………………………

74

9013-5

Amended Pleadings ………………………………………………………………………….

74

9014-1

Contested Matters – Applicability of Rules ……………………………………….

74

9014-2

Contested Matters – Attendance of Witnesses …………………………………

75

9016-2

Witnesses - Alternate Direct Testimony ……………………………………………

75

9018-1

Sealing and Redaction of Documents ……………………………………………….

76

9019-1

Settlements ………………………………………………………………………………………

76

9019-2

Alternative Dispute Resolution …………………………………………………………

77

9021-1

Judgments and Orders – Entry ………………………………………………………….

82

9022-1

9024-1

9037-1

Judgments and Orders – Notice ……………………………………………………….

Motions for Reconsideration ……………………………………………………………

Privacy Protection of Personally Identifiable Information ………………..

82

82

83

9072-1

Orders – Proposed ……………………………………………………………………………

83

9073-1

Hearings – Notice ……………………………………………………………………………..

86

9074-1

Telephonic and Video Conference Appearances ……………………………….

86

 


 


UNITED STATES BANKRUPTCY COURT

DISTRICT OF HAWAII

 

LOCAL BANKRUPTCY RULES

 

LBR 1001-1.     Scope of Rules.

 

(a)        Scope of Rules.  These local rules govern practice and procedure in all bankruptcy cases and proceedings in the United States Bankruptcy Court for the District of Hawaii.  They may be cited as LBR _____.

 

(b)       Effective Date.   Unless the court orders otherwise, these rules apply to all bankruptcy cases and proceedings pending on the date of adoption.  These rules supersede all previous local bankruptcy rules for the District of Hawaii.

 

(c)        Definitions.   As used in these rules:

(1)        “all creditors” – when used with respect to service of documents - includes parties in interest, parties who have requested notice in a case, any trustee and committee appointed in a case, and the Office of the United States Trustee;

(2)        “clerk” means the Clerk of Court, or the Clerk of Court’s designee, of the United States Bankruptcy Court for the District of Hawaii;

(3)        “CM/ECF” means the Case Management/Electronic Case Files system used in the United States Bankruptcy Court for the District of Hawaii;

(4)        “court” means the United States Bankruptcy Court for the District of Hawaii, and does not refer to any particular judge of the court;

(5)        “debtor” includes the joint debtor, if any;

(6)        “district court” means the United States District Court for the District of Hawaii;

(7)        “judge” means any United States Bankruptcy Judge;

(8)        “LR” or “local rule" refers to a local rule in Chapter I – General and Civil Rules, Local Rules of Practice for the United States District Court for the District of Hawaii;

(9)        “Bankruptcy Rule” refers to a rule of the Federal Rules of Bankruptcy Procedure; and

(10)      “§” refers to a section under title 11 of the United States Code, unless another title is cited.

 

(d)       Modification and Applicability of Rules.  In any case or proceeding, the court may direct that provisions of these rules be modified or suspended, or that certain local general or civil rules of the district court be made applicable. 

 


 

LBR 1005-1.     Petition – Caption.

 

Other Names Used by Debtor.  If the petition lists other names used by the debtor that are modified by a term indicative of an artificial entity, such as “Inc.” or “LLC”, the debtor must file with the petition a declaration substantially conforming to the local form [Declaration Regarding Trade Name(s) Used by Debtor [hib_1005-1]), stating that the name was used as a trade name but does not identify a separate legal entity.  Absent such a declaration, the clerk will not include such a name as an alias or “dba” in the case information and notices sent by the court.

 

LBR 1005-1 Related Local Form:

Declaration Regarding Trade Name(s) Used by Debtor [hib_1005-1]

 

LBR 1007-1.     Lists, Schedules, and Statements.

 

(a)        Case Opening Documents. 

(1)        Definition.  The case opening documents that are subject to this subdivision include the schedules and statements required to be filed with the court under § 521(a), other than copies of payment advices; the certificate from an approved nonprofit budget and credit counseling agency required to be filed under § 521(b); and any other document required to be filed with the petition or within a specified amount of days thereafter, under a statute, rule, or order.

(2)        Dismissal Upon Failure to File Case Opening Documents.  In a voluntary case where case opening documents are not filed with the petition, the clerk is authorized to issue an order to satisfy the deficiency and to give notice that failure to file the subject documents within a specified number of days after the date the petition was filed, or some later date as the court directs, may result in dismissal of the case without further notice, unless on or before the filing deadline the court enters an order extending the time to file the documents.  An order dismissing the case under this provision may include a 180-day bar to refiling a subsequent petition under § 109(g)(1).

(3)        Extension of Time to File Case Opening Documents.  A debtor may request an extension of time to file case opening documents by filing with the court a motion substantially conforming to the local form (Debtor’s Motion to Extend Time to File Case Opening Documents [hib_1007-1a3]) that states the date the petition was filed, the date set for the first meeting of creditors, the new deadline being requested, and the reason for the extension.  Consideration of the motion may be expedited if it contains the signature of an authorized representative of the Office of the United States Trustee in a chapter 11 case and the Chapter 13 trustee in a chapter 13 case indicating that there is no objection to an extension.

 


 

(b)       Payment Advices.

(1)        Non-Filing of Payment Advices.  Unless the court orders otherwise, the copies of payment advices or other evidence of payment received by the debtor from any employer described in § 521(a)(1)(B)(iv) may not be filed with the court.  If the court permits the filing, the filing party is responsible for redacting any confidential information, such as all but the last 4 digits of the debtor’s Social Security number and any financial account numbers.

(2)        Submission to Trustee.  The copies of payment advices or other evidence of payment described in § 521(a)(1)(B)(iv) must be submitted to the trustee in a case under chapter 7, 12, or 13, or the Office of the United States Trustee in a case under chapter 11, not later than 7 days before the date first set for the first meeting of creditors under § 341, or 45 days after the date of the filing of the petition, whichever is earlier.  The debtor may offer an explanation why payment advices are not being submitted by providing to the trustee or the Office of the United States Trustee a statement substantially conforming to the local form (Debtor’s Statement Regarding Payment Advices, Tax Returns, and Domestic Support Obligations [hib_1007-1b2]).

(3)        Failure to Submit.  If the debtor fails to submit to the trustee the copies of payment advices or other evidence of payment within the time specified in paragraph (2) of this subdivision, the trustee may request an order dismissing the case by filing a motion substantially conforming to the local form (Trustee’s Ex Parte Motion to Dismiss Case Under 11 U.S.C. § 521(i)(2) [hib_1007-1b3]) or, in the alternative, a motion for an order declining to dismiss the case for the reasons stated in § 521(i)(4).  In the absence of such motions, the court will presume that the debtor has submitted these documents timely to the trustee and that the debtor’s case is not subject to dismissal under § 521(i)(1) or (2).  A party in interest other than a trustee requesting dismissal under § 521(i)(2) for failure to file payment advices must file and serve on the debtor and all creditors a motion to dismiss with the trustee’s declaration that the trustee did not receive any payment advices or any statement by the debtor regarding the failure to submit such information. 

 

(c)        Motion to Reconsider Dismissal.  A debtor whose case has been dismissed for failure to file required documents may request the court to reconsider the order dismissing the case by filing the required documents and then filing a motion substantially conforming to the local form (Debtor’s Motion to Reconsider Order Dismissing Case [hib_9024]).

 

LBR 1007-1 Related Local Forms:

Debtor’s Motion to Extend Time to File Case Opening Documents [hib_1007-1a3]

Debtor’s Statement Regarding Payment Advices, Tax Returns, and Domestic Support Obligations [hib_1007-1b2]

Trustee’s Ex Parte Motion to Dismiss Case Under 11 U.S.C. § 521(i)(2) [hib_1007-1b3]

Debtor’s Motion to Reconsider Order Dismissing Case [hib_9024]

 

LBR 1007-2.     List of Creditors.

 

(a)        Requirement to File.  The clerk may reject for filing a voluntary petition submitted without a creditor list, i.e. the list of names and addresses of entities included or to be included on Schedules D, E, F, G, and H.

 

(b)       Format of Names and Addresses.  The format of names and addresses in the creditor list must conform to guidelines issued by the clerk.

 

(c)        Digital File Format.

(1)        Electronic Filing.  A person electronically filing a voluntary petition must upload the creditor list immediately after filing the petition.  An image of the list must also be included with the petition.  When electronically filing an amended list to include additional creditors, only the names and addresses of the additional creditors should be included in the upload and the image of the list.

(2)        List Submitted on Paper.  A person submitting a paper copy of a voluntary petition for filing must submit both a paper copy of the creditor list and an electronic version on media (diskette, CD, USB drive, etc.) capable of being uploaded in the court’s electronic filing system.

 

(d)       Verification.  The creditor list must be accompanied by the debtor’s verification that all entities included on Schedules D, E, F, G, and H have been listed in the creditor list, using a form that substantially conforms to the local form (Debtor’s Verification of Creditor List [hib_1007-2d]).

 

(e)        Amended Creditor List.  The debtor must file an amended creditor list to reflect any changes or additions to the names and addresses of entities included on Schedules D, E, F, G, or H, including a change of address of the entity or the entity’s attorney, or the addition of an entity or an entity’s attorney.  An amended list is subject to the requirements of subdivisions (b) and (c) of this rule.  The debtor is responsible for serving the notice of bankruptcy case, meeting of creditors, and deadlines, as well as any other notices sent by the clerk, on the parties listed in the amended list.  The amended list should attach a cover sheet and certificate of service substantially conforming to the local form (Cover Sheet for Amendments [hib_1009-1]).

 

LBR 1007-2 Related Local Forms:

Verification of Creditor List [hib_1007-2d]

Cover Sheet for Amendments [hib_1009-1]

 


 

LBR 1007-3.     List of 20 Largest Creditors in Chapter 11 Case

 

In a voluntary chapter 11 case, the list containing the name, address, and claim of the creditors holding the 20 largest unsecured claims (Official Form 4) must include the email address of the creditor or agent of the creditor, if known to the debtor.

LBR 1009-1.     Amendments to Lists and Schedules.

 

(a)        In General.  Unless the originally filed document exceeds 15 pages, an amendment to a list, schedule, or statement must replace in its entirety, rather than supplement, the originally filed document.  If the originally filed document exceeds 15 pages, the amendment must clearly indicate that it is supplemental in nature.

 

(b)       Cover Sheet with Declaration.  A party filing an amended list, schedule, or statement pursuant to Bankruptcy Rule 1009(a) must attach a cover sheet substantially conforming to the local form (Cover Sheet for Amendments [hib_1009-1]), containing the debtor’s declaration that the information in the amendments is true and correct.  If the amendments are filed electronically, the debtor must submit to the court, not later than 7 days after the date of electronic filing, an originally signed declaration substantially conforming to the local form (Declaration re: Electronic Filing [hib_5005-4f2]). 

 

(c)        Notice.  Whenever Schedule D, E, F, G, or H is amended to add a creditor or party in interest, the debtor must serve a copy of the notice of commencement of the bankruptcy case, the meeting of creditors, and any deadlines set by the court upon all added entities.  The debtor must file a certificate of service to show compliance with this provision.  The requirement to file a certificate of service may be satisfied by using the cover sheet substantially conforming to the local form (Cover Sheet for Amendments [hib_1009-1]), containing a section for certifying service.

 

LBR 1009-1 Related Local Forms:

Cover Sheet for Amendments [hib_1009-1]

Declaration re: Electronic Filing [hib_5005-4f2]

LBR 1009-2.     Correction of Social Security Number.

(a)        Amended Statement of Social Security Number.  The debtor must promptly submit an amended Statement of Social Security Number [Official Form B21] upon becoming aware that an incorrect number was provided at the time of filing the petition, whether the petition was filed electronically or on paper.  The amended statement must be submitted on paper with the debtor’s original signature and must indicate conspicuously that it is an amended statement intended to correct the number previously provided to the court.  It is not necessary for the debtor to file an amended petition to correct the last 4 digits of the number showing on the petition.

(b)       Notice to Creditors.   Upon submitting an amended Statement of Social Security Number, the debtor must give notice of the correct number to all creditors and parties in interest by sending a notice substantially conforming to the local form (Notice of Corrected Social Security Number [hib_1009-2b]).  The debtor must also send the notice to the major credit reporting agencies whose names and addresses are included on the form.  This notice must include the debtor’s full (9-digit) Social Security Number and must not be filed in order to protect the debtor’s privacy.  

(c)        Certificate of Service.  The debtor must file a certificate of service substantially conforming to the local form (Certificate of Service: Notice of Corrected Social Security Number [hib_1009-2c]) to show compliance with the notice requirement of this rule.  The certificate of service must not include the debtor’s full Social Security Number or attach a copy of the notice that was served, in order to protect the debtor’s privacy.   

 

LBR 1009-2 Related Local Forms:

Statement of Social Security Number [Official Form B21]

Notice of Corrected Social Security Number [hib_1009-2b]

Certificate of Service: Notice of Corrected Social Security Number [hib_1009-2c]

LBR 1015-1.     Joint Administration.

(a)        Motion.  A motion by one or more debtors requesting joint administration, but not substantive consolidation, of related cases may be presented to the court ex parte, provided that the court may set the matter for hearing after notice to parties in interest.

 

(b)       Case Dockets.  Unless the court orders otherwise, all documents must be entered on the docket of the case designated as the lead case.

 

(c)        Mailing Matrix and Notice List.  The clerk will maintain a single, consolidated mailing matrix of names and addresses of creditors and parties requesting notice in the lead case.

 

(d)       Claims Register.  Unless the court orders otherwise, the clerk will maintain a single claims register in the lead case.  All proofs of claim and interest must be filed in the lead case but must indicate the particular debtor against whom the claim or interest is asserted.  

 

(e)        Separate Accounts and Reports.  Unless the jointly administered cases are also substantively consolidated, the debtor in possession or trustee must maintain separate accounts of property and distributions of each estate, and must report on each estate separately.  All monthly operating reports and interim and final reports by a trustee or debtor in possession must be filed in the lead case but must clearly identify the separate estate involved.

 

LBR 1017-1.     Conversion of Chapter 7 Cases.

 

Motion and Notice.  A chapter 7 debtor seeking to convert a case to one under another chapter pursuant to § 706(a) must file a motion and give notice.  Notice is sufficient if given to the Office of the United States Trustee, the case trustee, and all parties receiving notice electronically through the court’s transmission facilities.  The notice must advise that the court may enter an order granting the motion without further notice or hearing if no objection to the motion is filed within 14 days after the date that the motion was filed.  The debtor may include the notice with the motion by filing a motion substantially conforming to the local form (Debtor’s Motion to Convert Chapter 7 Case to Another Chapter [hib_1017-1]).

 

LBR 1017-1 Related Local Form:

Debtor’s Motion to Convert Chapter 7 Case to Another Chapter [hib_1017-1]

 

LBR 1072-1.  Places of Holding Court.

 

The court shall be in continuous session in Honolulu, Hawaii.

 

LBR 1074-1.     Corporations and Other Artificial Entities.

 

(a)        Authority to File Petition.  When a voluntary petition is filed by an entity other than a natural person, a copy of the document authorizing the filing of the petition, such as a resolution of the board of directors of a corporation, must be attached to the petition as an exhibit.

 

(b)       Designation of Responsible Individual.  Every debtor that is an artificial entity must designate a natural person to be responsible for performing the debtor’s duties in bankruptcy.  The responsible individual must reside in the District of Hawaii, unless the court orders otherwise.  The designation must be filed within 14 days after the date the petition is filed and must include the individual’s name, position, address, telephone number, and email address, and must include the individual’s consent.  If more than one individual is designated, the designation must specify each individual’s responsibilities.

 

(c)        Representation by Counsel.

(1)        Chapter 11 Debtor in Possession.  Every chapter 11 debtor in possession that is an artificial entity must be represented by an attorney whose employment is subject to court approval under § 327(a).

(2)        Contested Matters and Adversary Proceedings.   Except for requesting an award of compensation as a professional, an artificial entity must appear through counsel when acting as a party in a contested matter or adversary proceeding.

 


 

LBR 2002-1.     Notice of Preferred Addresses.

 

(a)        Notice of Preferred Address.  The notice of address that may be filed under § 342(f)(1) must be submitted through the National Creditor Registration Service (“NCRS”).  Forms and registration information are available at www.ncrsuscourts.com.  Registering a preferred address with the NCRS constitutes filing such notice with the court.

 

(b)       Override of Preferred Address.  A creditor requesting an override of the nationally registered preferred address in a particular case must file a notice substantially conforming to the local form (Notice of Override of Preferred Address [hib_2002-1b]), in order to comply with § 342(e)(1).

 

LBR 2002-1 Related Local Form:

Notice of Override of Preferred Address [hib_2002-1b]

LBR 2003-1.     Meeting of Creditors.

(a)        Attendance Required.  The following are required to attend the meeting of creditors held pursuant to § 341(a):

(1)        the debtor and the joint debtor, if any, or if the debtor is an artificial entity, the responsible individual designated under LBR 1074-1; and

(2)        an attorney representing the debtor and the joint debtor if the petition was filed through counsel.

 

(b)       Failure to Attend Meeting.

(1)        Debtor, Joint Debtor, or Designated Responsible Individual.  The trustee or United States Trustee may request dismissal of the case for failure of the debtor, joint debtor, or designated responsible individual to attend the meeting of creditors by filing and serving on the debtor and all creditors a motion and notice of hearing substantially conforming to the local form (Motion to Dismiss Case for Non-Appearance at Meeting of Creditors; Notice of Hearing [hib_2003-1]).  If the case is dismissed, the order may bar the debtor(s) from filing a subsequent voluntary petition for 180 days, pursuant to § 109(g)(1).

(2)        Attorney.  The trustee or United States Trustee may move for the imposition of monetary or other sanctions against the debtor’s attorney of record if an attorney fails to appear at the meeting of creditors.

 

(c)        Meeting Held Open.  In a chapter 13 case, a meeting held open by the trustee does not extend the time for the debtor to file any unfiled tax returns in compliance with § 1308, unless the trustee explicitly directs that the meeting be held open for that purpose.

 

LBR 2003-1 Related Local Form:

Motion to Dismiss Case for Non-Appearance at Meeting of Creditors; Notice of Hearing [hib_2003-1]

 

LBR 2004-1.     Rule 2004 Examinations.

 

(a)        Examination Order Issued by Clerk.  A party in interest seeking to examine the debtor or other entity pursuant to Bankruptcy Rule 2004 may request an examination order by filing a motion substantially conforming to the local form (Motion for Rule 2004 Examination [hib_2004-1]).  The clerk is authorized to issue an examination order requested by a party in interest who has complied with the requirements of this local rule.  Such examination order will compel the attendance or production of documents by the debtor, or, if the examinee is not the debtor, will authorize the issuance of a subpoena substantially conforming to the Subpoena for Rule 2004 Examination [B254] in accordance with Bankruptcy Rule 9016 and Fed. R. Civ. P. 45.  If the requirements of this rule are not satisfied, the clerk may issue an order denying the request for an examination order.

 

(b)       Date, Time, and Place of Examination.  Prior to filing a motion for an examination order, the party seeking the order shall make all reasonable efforts to arrange a mutually convenient date, time, and place of examination.  The motion for an examination order must be supported by a declaration stating either:

(1)        that the proposed date, time, and place of examination have been agreed upon by all concerned; or

(2)        that the parties could not agree to a date, time, and place of examination after all reasonable efforts were made, in which case the examination will take place with the moving party’s proposed date, time and place of examination, but no earlier than 14 days after the filing of the motion for an examination order, and no earlier than 30 days after the date of issuance of the examination order or subpoena, whichever is later, if the motion requests production of documents or electronically stored information.

 

(c)        Request Limited to Delivery of Documents.  Subdivision (b) of this rule does not apply to requests for production of documents or electronically stored information to be delivered to the requesting party so long as the deadline for delivery is not less than 30 days after the date of issuance of the examination order or a subpoena, whichever is later.  The motion requesting an order for production of documents or electronically stored information by mail or similar delivery method may include a request for authority to issue a subpoena for a personal examination following review of the materials produced so long as the examination date is not less than 14 days after the date of issuance of the subpoena.

 

(d)       Other Discovery Procedures Not Available.  The declaration supporting issuance of an order under Bankruptcy Rule 2004 must state that the requested examination does not involve pending litigation in which discovery is available under Bankruptcy Rules 7026, 9014, or other authority.

 

(e)        Objections.  An examinee or party in interest objecting to an examination must file and serve on the examining party a motion for a protective order or, if a subpoena has been served, a motion to quash the subpoena.

 

LBR 2004-1 Related Local Forms:

Subpoena for Rule 2004 Examination [B254]

Motion for Rule 2004 Examination [hib_2004-1]

 

LBR 2014-1.  Employment of Professional Persons.

 

A request for an order of employment may be made by filing an application substantially conforming to the local form (Application to Employ Professional [hib_2014-1]).  The applicant shall either (a) submit a proposed order bearing the approval of the Office of the United States Trustee, (b) arrange for the Office of the United States Trustee to notify chambers that the Office of the United States Trustee does not object to the application, in which case the court may enter a text order granting the application, or (c) if there is an objection to the application, obtain a hearing date from the courtroom deputy and give notice of the hearing.

 

LBR 2014-1 Related Local Form:

! Application to Employ Professional [hib_2014-1]

 

 
 

 

 

 


LBR 2015-6.     Mail Redirection.

 

(a)        Consent of Debtor.  The filing of a petition under title 11 by a debtor engaged in business is deemed to be the debtor's consent to mail redirection by the interim trustee and the trustee.

 

(b)       Objection by Debtor.  If the debtor does not consent to mail redirection, the debtor must file a written objection with the clerk.  If the debtor files an objection, the court will promptly set a hearing on notice to the debtor, the trustee, and the United States Trustee.  After the filing of the objection, and pending order of court, the redirection shall continue, but the trustee shall hold, and not open, the debtor's mail.

 

LBR 2015-7.  Monthly Operating Reports.

 

(a)        Cases in Which Reports Are Required.  Monthly operating reports shall be filed by the trustee or debtor in possession in the following cases:

(1)  All cases under chapter 11 and chapter 12;

(2)  chapter 7 cases, where the trustee is operating a business; and

(3)  chapter 13 cases, if the court so orders.

 

(b)       Filing Deadline.  Each required monthly operating report shall be filed not later than the 20th day of the month following the month to which the report pertains.  A separate report must be filed for each calendar month, or portion thereof, during which the case is pending, up to and including the month in which an order of confirmation or dismissal is entered.

 

(c)        Service of Reports.  A copy of each monthly report must be served, not later than the day upon which it is filed with the court, upon the Office of the United States Trustee, the chair and counsel of record of each committee of creditors and each committee of equity security holders appointed in the case, and such other persons or entities as may be ordered by the court.  Reports in a chapter 12 or chapter 13 case must be served on the trustee.

 

(d)       Form and Content of Reports.

(1)        Unless the court orders otherwise, monthly operating reports must include an accrual basis profit and loss statement, a balance sheet, and a statement of receipts and disbursements.

(2)        Any motion to modify this requirement must be served on all parties upon whom the monthly operating report is required to be served.

 

(e)        Certificate of Counsel.  Each required monthly operating report must be accompanied by a certificate of the debtor’s or trustee’s attorney that the attorney has reviewed the report and that it has been prepared in compliance with this rule.  Counsel's certificate shall not be deemed a representation by counsel that the entries in the report are accurate or that the report has been prepared in compliance with applicable accounting standards and principles.

 

LBR 2015-8.     Debtor’s Books and Records.

 

(a)        Voluntary Cases.  In a case filed pursuant to § 301 or 302, the books and records of the debtor shall be closed on the day immediately preceding the day on which the petition is filed, whether or not a separate estate is created for tax purposes.  Prepetition liabilities must be segregated and reported separately from postpetition liabilities.

 

(b)       Involuntary Cases.  In a case filed under § 303, the books and records of the debtor shall be closed on the day on which relief is ordered or an interim trustee is appointed, whichever occurs first.  Notwithstanding the foregoing, liabilities incurred before the commencement of the case shall be segregated and, in the event relief is granted, reported separately from liabilities incurred after the commencement of the case.

 


 

LBR 2015-9.     Trustees – Interim Reports.

 

(a)        Requirement to File.  Unless the trustee has filed a report of no distribution, a trustee appointed in a case under chapter 7 or chapter 11 must file an interim report in each case that has been pending under the same chapter for more than 2 years, and for which a final report has not been filed.  The initial report is due not later than the second anniversary of the trustee’s appointment, but not earlier than February 1, 2011.  Additional interim reports must be filed at least every 6 months thereafter.  This requirement is in addition to any reporting requirements set by the United States Trustee. 

 

(b)       Content of Report.  The trustee may satisfy the reporting requirement of this rule by filing a report substantially conforming to the local form (Trustee’s Interim Report [hib_2015-9]), including:

            (1)        a brief description of the status of the case;

(2)        the trustee’s records of time spent administering the case during the reporting period;

            (3)        Form 1 – Individual Estate Property Record and Report; and

            (4)        Form 2 – Cash Receipts and Disbursements Record.

 

LBR 2015-9 Related Local Form:

Trustee’s Interim Report [hib_2015-9]

 

LBR 2016-1.     Compensation of Professionals.

 

(a)        Application Requirements.  Unless these rules provide otherwise, an application for compensation for services or reimbursement of expenses under § 330, 331, or 503(b)(4) must include the following:

(1)        the information about the applicant and the application, case status, project billing, and actual, necessary expenses as set forth in the Guidelines for Reviewing Applications for Compensation and Reimbursement of Expenses Filed Under 11 U.S.C. § 330, contained in:

(A)       Appendix A – Guidelines for Reviewing Applications for Compensation filed under 11 U.S.C. § 330 in (1) larger chapter 11 cases by those seeking compensation who are not attorneys, (2) all chapter 11 cases below the larger case thresholds, and (3) cases under other chapters of the Bankruptcy Code (except that the project billing format is required only if the professional’s compensation is anticipated to exceed $10,000); and

(B)       Appendix B – Guidelines for Reviewing Applications for Compensation and Reimbursement of Expenses Filed under 11 U.S.C. § 330 for Attorneys in Larger Chapter 11 Cases (including Exhibits A – E).

(2)        a summary sheet substantially conforming to the local form (Compensation Summary Sheet [hib_2016-1a]);

(3)        detailed time records unless the professional is an auctioneer, real estate agent, or other professional whose compensation is based on a commission percentage; and

(4)        a certification by the applicant that:

            (A)       the applicant has reviewed the application;

(B)       the amounts being requested are billed at rates no less favorable than those customarily employed by the applicant and generally accepted by the applicant’s nonbankruptcy clients; and

(C)       to the best of the applicant’s knowledge, information, and belief, the application conforms to the U.S. Trustee’s Guidelines – Appendix A and Appendix B, this rule, and any order of the court, except as specifically noted in the certification

(b)       Client Review of Application.  A debtor in possession, trustee, or official committee must exercise reasonable business judgment in monitoring the fees and expenses of the estate’s professionals.   If a professional’s total fees are anticipated to exceed $10,000 in a case, billing statements must be sent monthly to the client and include a cover letter with the following statement:  “The court requires that a debtor in possession, trustee, or an official committee exercise reasonable business judgment in monitoring the fees and expenses of the estate’s professionals.  Any objections, concerns, or questions about the services or amounts in this billing statement should be communicated promptly to the professional and may be shared with the Office of the United States Trustee.”

 

(c)        Foreign Currency Amounts.  Amounts requested in an application for compensation must be stated in United States currency.  The application may request approval of compensation and expenses in a foreign currency amount as converted to United States dollars in an approximate amount in effect at the time the application is filed, e.g.  ¥1,500,000 (approx. US$13,800).  Unless the court orders otherwise, the actual payment amount may be calculated using the conversion rate in effect at the time of payment.

 

(d)       Standards for Reasonableness.

(1)        Compensation for Services.  In addition to the factors identified in the U.S. Trustee’s Guidelines, the court generally will apply the following in determining the reasonableness of an application for compensation.

(A)       Multiple Professionals.  Professionals must explain time spent in meetings and conferences or at hearings or depositions with other professionals or paraprofessionals in the same firm.  Failure to justify this time may result in the allowance of fees limited to those requested at the lowest billing rate.           

(B)       Multiple Cases.  Time claimed for periods of attendance at hearings, meetings of creditors, or other services involving more than one case must be prorated.

(C)       Administrative and Clerical Tasks.  Administrative and clerical services, such as photocopying, scanning, or faxing documents, filing papers with the court, or supervising such tasks performed by another, are not compensable.

(D)       Travel Time.  “Travel time” means time spent while traveling and not actually performing professional services for a client.  A reasonable amount of travel time, not to exceed 8 hours per day, may be allowed for actual, necessary travel.  If the travel also involves another case or client, the travel time must be prorated.

(E)        Privilege or Excise Taxes on Compensation.  Amounts attributable to privilege or excise taxes, but not income taxes, such as the State of Hawaii General Excise Tax, payable on receipts for compensation may be included in requests for compensation if customarily charged to nonbankruptcy clients and to the extent that such taxes will actually be paid to a taxing authority.

(2)        Reimbursement for Expenses.  In addition to the factors identified in the U.S. Trustee’s Guidelines, the court generally will apply the following in determining the reasonableness of an application for reimbursement for expenses.

(A)       Professional or Paraprofessional Services.  A professional employed under § 327 may not charge as an expense any fee payable to another professional or paraprofessional (e.g., an expert witness) unless the employment of the other professional or paraprofessional has been approved by the court prior to performance of the services.

(B)       Meals.

(i)         While Traveling.  Reimbursement may be sought for the reasonable cost of meals while away from the island (inside Hawaii) or state (outside Hawaii) of the professional’s office or principal place of business.

(ii)        While Working.  Working meals at a restaurant or private club are not reimbursable.  Reimbursement may be sought for working meals only where food is catered to the professional's office in the course of a meeting with clients, such as a creditors committee, for the purpose of allowing the meeting to continue through a normal meal period. 

(C)       Transportation.  Air travel may be reimbursable using the actual cost or the amount of the economy class fare, whichever is lower.  Automotive travel expense is limited to the actual cost of rental of an appropriate vehicle, together with insurance and fuel costs associated with the rental.

(D)       Parking.  The actual cost of parking expenses may be reimbursable except for parking at the applicant’s principal place of business and, for applicants whose principal place of business is on the island of Oahu, parking while attending a court hearing or a meeting of creditors.

(E)        Amenities.  Amenities, including, but not limited to, charges for entertainment, alcoholic beverages, newspapers, dry cleaning and laundry, are not reimbursable.

(F)        Privilege or Excise Taxes on Expenses.  Amounts attributable to privilege or excise taxes, but not income taxes, such as the State of Hawaii General Excise Tax, payable on expenses may be included in requests for expenses if customarily charged to nonbankruptcy clients and to the extent that such taxes will actually be paid to a taxing authority.

(G)       Objection Ceilings for In-House Expenses.  The U.S. Trustee’s Guidelines provide for the establishment of objection ceilings for in-house expenses that are routinely incurred and for which the actual cost cannot easily be determined.  The court generally will apply the following objection ceilings.

(i)         Photocopies:   $.20 per page.

(ii)        Faxes:  $.20 per paper page for outgoing and incoming transmissions, except that $1.00 may be charged for the first paper page of an outgoing transmission.

 

(e)        Chapter 7 Trustees.

(1)        Compensation Request in Final Report.  A chapter 7 trustee may seek court approval of a final application for compensation by including the request in the trustee’s final report. 

(2)        Calculation under § 326(a). 

(A)       Cases Filed Before October 17, 2005. In cases filed before October 17, 2005, the chapter 7 trustee’s request for approval of compensation must include a calculation of the limitation under § 326(a), the total amount of compensation being sought, and the effective hourly rate of the trustee’s compensation, i.e. the amount requested for compensation divided by the actual hours for services performed.   The request for compensation must be supported with detailed time records.

(B)       Cases Filed on or After October 17, 2005.  In cases filed on or after October 17, 2005, the chapter 7 trustee may seek approval of compensation in the amount calculated under § 326(a) with no requirement to file with the court detailed time records.  This provision does not excuse a trustee from the responsibility to maintain contemporaneous time records or compliance with requirements that may be imposed by the Office of the United States Trustee. 

(C)       Privilege or Excise Taxes.  The trustee may include in a compensation request an amount attributable to liability for privilege or excise taxes, such as the State of Hawaii General Excise Tax, to the extent that the total compensation request does not exceed the statutory limitation of § 326(a).

 

(f)        Chapter 7 Trustee’s Professionals.  A professional employed by a chapter 7 trustee may file an application for final compensation substantially conforming to the local form (Final Application for Compensation by Professional Employed by Chapter 7 Trustee [hib_2016-1f]) in lieu of an application conforming to the requirements of subdivision (a) of this rule.

 

(g)        Chapter 13 Debtor’s Attorney Fees.  Except as provided for in paragraphs (2) and (3), an attorney for a debtor in a chapter 13 case must seek the allowance of compensation under § 330(a)(4)(B) by filing an application in accordance with subdivision (a) of this rule.

(1)        Chapter 13 Attorney Fee Guidelines.  The court may issue guidelines determining presumptively reasonable fees for normal and customary services to be performed by attorneys for chapter 13 debtors.  Use of the guidelines may require the filing of an agreement substantially conforming to the local form (Rights and Responsibilities of Chapter 13 Debtors and Attorneys [hib_2016-1g1]).  An attorney electing to follow the guidelines may seek the allowance of compensation and reimbursement of expenses through expedited procedures provided by this rule.

(2)        Allowance of Compensation as Part of Plan Confirmation.  An attorney electing to follow the Chapter 13 Attorney Fee Guidelines may seek the allowance of initial fees as part of the plan confirmation process without filing a separate application.  The order allowing the compensation may be included in the order confirming the plan unless the debtor’s attorney has failed to file the agreement describing the rights and responsibilities of Chapter 13 debtors and attorneys or if the agreement provides for compensation inconsistent with the compensation disclosed by the attorney under Bankruptcy Rule 2016(b).

(3)        Allowance of Compensation for Post-Confirmation Services.  An attorney who elected to follow the Chapter 13 Attorney Fee Guidelines for the initial allowance of fees may seek the allowance of additional fees for certain post-confirmation services as follows.

(A)       Fees Not Exceeding Amounts in Guidelines.  No application for additional compensation under LBR 2016-1(a) is required if the fee amounts do not exceed the amounts specified in the Chapter 13 Attorney Fee Guidelines and:

(i)         no later than 14 days after payment or an agreement to pay the fees directly to the attorney by the debtor or a third party, the attorney files a supplemental disclosure statement substantially conforming to the local form (Supplemental Disclosure of Compensation by Attorney for Chapter 13 Debtor [hib_2016-1g3A]), disclosing the amount of additional compensation paid or to be paid and certifying that the fees requested do not exceed the maximum amounts in the guidelines; or

(ii)        the attorney requests payment through plan distributions by filing a request for payment of an administrative expense substantially conforming to the local form (Request for Payment of Administrative Expense:  Compensation for Debtor’s Attorney in Chapter 13 Case [hib_3070-2a2]), including a certification that the fees requested do not exceed the maximum amounts in the guidelines.

(B)       Fees Exceeding Amounts in Guidelines.  If the fees being requested exceed the amounts in the guidelines, or if the particular services are not addressed by the guidelines, an attorney whose initial fees were allowed by the plan confirmation order may request the allowance of additional compensation by filing and serving on the Trustee, the Office of the United States Trustee, and all creditors, an application substantially conforming to the local form (Application for Additional Fees in Chapter 13 Case; Notice of Hearing [hib_2016-1g3B]), attaching detailed billing records for the subject services, and arranging for a hearing in accordance with LBR 9013-1(c).

(4)        Payment of Compensation.  Unless the court orders otherwise, a debtor’s attorney in a chapter 13 case may accept postpetition payments for compensation only:

                        (A)       through plan distributions;

                        (B)       as provided in item (g)(3)(A)(i) of this rule; or

(C)       from funds deposited in a client trust account as authorized by a court order.   

 

LBR 2016-1 Related Local Forms:

USTP Guidelines Appendix A: Guidelines for Reviewing Applications for Compensation filed under 11 U.S.C. § 330 in (1) larger chapter 11 cases by those seeking compensation who are not attorneys, (2) all chapter 11 cases below the larger case thresholds, and (3) cases under other chapters of the Bankruptcy Code

USTP Guidelines Appendix B: Guidelines for Reviewing Applications for Compensation and Reimbursement of Expenses Filed under 11 U.S.C. § 330 for Attorneys in Larger Chapter 11 Cases

Instructions for Appendix B Guidelines Forms

● Exhibit A – Customary and Comparable Compensation Disclosure With Fee Applications

● Exhibit B – Summary of Timekeepers Included in this Fee Application

● Exhibit C – Budget and Staffing Plan

● Exhibit D – Summary of Compensation Requested by Project Category

● Exhibit E – Summary Cover Sheet of Fee Application

Compensation Summary Sheet [hib_2016-1a]

Final Application for Compensation by Professional Employed by Chapter 7 Trustee [hib_2016-1f]

Chapter 13 Attorney Fee Guidelines

Rights and Responsibilities of Chapter 13 Debtors and Attorneys [hib_2016-1g1]

Supplemental Disclosure of Compensation by Attorney for Chapter 13 Debtor [hib_2016-1g3A]

Request for Payment of Administrative Expense:  Compensation for Debtor’s Attorney in Chapter 13 Case [hib_3070-2a2]

Application for Additional Fees in Chapter 13 Case; Notice of Hearing [hib_2016-1g3B]

 

LBR 2070-1.     Estate Administration.

 

Funds of the Estate – Account Identification.  The signature card (or if there is none, the depository agreement) for any account containing funds which are the property of a bankruptcy estate must clearly indicate that the depositor or investor is a “debtor in possession” or a trustee in bankruptcy.

 

LBR 2072-1.  Notice to Other Courts.

 

(a)        Notice of Bankruptcy Petition.  Notice of the filing of a bankruptcy petition in this district must be given to any federal or state court or administrative tribunal in which the debtor is a party to pending litigation or other proceeding.  Notice must be given, at the earliest possible date, to the judge to whom the matter is assigned, the clerk of the court where the matter is pending, all counsel of record in the matter, and all parties to the action not represented by counsel.  A debtor filing a petition without bankruptcy counsel shall give notice immediately to any attorney representing the debtor in pending litigation or other proceeding.  Notice of a bankruptcy petition will not bar any conference in another court held to advise the court and the parties of the status of the bankruptcy case.

 

(b)       Party to Give Notice.  In a voluntary case, the notice must be given by the debtor or the debtor’s counsel.  In an involuntary case, notice must be given by the petitioning creditors or their counsel.

 

(c)        Effect of Not Giving Notice.  Failure to give the notice required by subdivision (a) of this rule may constitute cause for annulment of the stay imposed by § 362, 922, 1201, or 1301 and may also result in the imposition of sanctions.

 

(d)       Notice of Order for Relief from Stay.  If an order terminating, annulling, modifying, or conditioning the stay imposed by § 362, 922, 1201, or 1301, will permit resumption of litigation or other proceeding, the party obtaining the order for relief from stay must give notice thereof to the parties noted in subdivision (a) of this rule.

 

(e)        Notice of Other Order Affecting Litigation.  Notice of an order dismissing or closing a case, granting or denying a discharge, or otherwise affecting the resumption of litigation or any other proceeding, must be given by the debtor or the debtor’s counsel to the parties noted in subdivision (a) of this rule.  If the debtor or the debtor’s counsel fails to give such notice promptly, the notice may be given by any party in interest with knowledge of the order affecting pending litigation or other proceeding.

 

LBR 2083-1.     Chapter 13 – General.

 

(a)        Debtor’s Notice of Conversion to Chapter 7.  A debtor may request an order converting a chapter 13 case, not previously converted from another chapter, to one under chapter 7 by filing and serving on the trustee and United States Trustee a notice substantially conforming to the local form (Debtor’s Notice of Conversion of Case to Chapter 7 [hib_2083-1a]).  Unless the court directs otherwise, a hearing is not required.

 

(b)       Debtor’s Motion to Dismiss Case.  A debtor may request an order dismissing a chapter 13 case, not previously converted from another chapter, by filing and serving on the trustee and United States Trustee a motion substantially conforming to the local form (Debtor’s Motion to Dismiss Chapter 13 Case [hib_2083-1b]).  Unless the court directs otherwise, a hearing is not required.

 

(c)        Debtor’s Motion to Approve Sale of Property.  A chapter 13 debtor may request an order approving a sale of property by filing and serving on the trustee, the United States Trustee, and all parties claiming an interest in the subject property, a motion and notice substantially conforming to the local form (Debtor’s Motion to Approve Sale in Chapter 13 Case [hib_2083-1c]), in accordance with LBR 9013-1(c).  The motion must include a report as to the status of title and liens for the subject property.  The motion may include a request for approval of any compensation to be paid to the debtor’s attorney for services related to the motion and payment of a commission or other fees to a sales agent, auctioneer, or other professional for services performed in connection with the sale, if (i) the amount requested does not exceed the applicable amount under the Chapter 13 Attorney Fee Guidelines, and (ii) the compensation will be paid directly from the proceeds of the sale and will not diminish the amount distributable to unsecured creditors.

 

(d)       Debtor’s Motion to Obtain Credit or Incur Debt. 

(1)        Form of Motion.  A chapter 13 debtor may request an order authorizing the debtor to obtain credit or incur debt by filing a motion substantially conforming to the local form (Debtor’s Motion to Incur Debt [hib_2083-1d]).  The motion may include a request for approval of any compensation to be paid to the debtor’s attorney for services related to the motion if (i) the amount requested does not exceed the applicable amount under the Chapter 13 Attorney Fee Guidelines, and (ii) the compensation will be paid directly from the proceeds of the loan and will not diminish the amount distributable to unsecured creditors.

(2)        Notice.  The court may consider the request without notice to creditors if:

(A)       the collateral for the new debt is property that vested in the debtor upon plan confirmation or otherwise is not property of the estate;

(B)       the loan proceeds will be used to satisfy all remaining payments to the trustee due under the plan;

(C)       where a separate application for compensation will be made, any compensation for services of the debtor’s attorney related to the motion will be paid into a client trust account, pending further court approval; and

(D)       the trustee’s approval is evidenced by the trustee’s signature on the motion or proposed order.

(3)        Plan Modification.  A debtor is not required to file a separate motion to modify confirmed plan if:

(A)       the sale or loan proceeds will be used to complete all remaining payments due under the confirmed plan; and

(B)       plan modification is limited to the acceleration of such payments.

 

(e)        Trustee’s Motions to Dismiss.

(1)        Motion to Dismiss for Lack of Feasibility.  If the trustee determines from the proofs of claims actually filed that the confirmed plan is not feasible, i.e. there will be insufficient funds to pay in full all administrative expenses, secured claims, priority claims, and any claims placed in a special class for full payment, the trustee may file and serve on the debtor a motion to dismiss for lack of feasibility substantially conforming to the local form (Trustee’s Motion to Dismiss for Lack of Feasibility; Notice of Deadline [hib_2083-1e1]).  Failure of the debtor to file, within 28 days after the date of filing of the motion, an objection to a claim, which, if sustained, would ensure feasibility, or a motion to modify the confirmed plan, may result in the court dismissing the case without further notice or hearing. 

(2)        Motion to Dismiss for Failure to Make Plan Payment or Other Cause.  Unless these rules provide for a specific alternate procedure, the trustee may request an order dismissing a chapter 13 case by filing and serving on the debtor a motion and notice substantially conforming to the local form (Trustee’s Motion to Dismiss Case; Notice of Hearing; Certificate of Service [hib_2083-1e2]).  The motion must be filed and served no later than 21 days before the hearing date.

 

(f)        Operation of Business.

(1)        Requirement for Reports.  Not later than 7 days before the meeting of creditors, the debtor must submit business reports to the trustee if requested by the trustee or if at least 2 of the following conditions exist:

(A)       the business employs 3 or more individuals;

(B)       the business earns monthly gross receipts exceeding $10,000;

(C)       the business produces net receipts comprising 50% or more of the debtor’s income reported in schedule I.

(2)        Content of Reports.  The business reports required under this rule must include:

            (A)       a projection of average monthly income and expenses;

            (B)       evidence of appropriate business insurance;

(C)       inventory of goods as well as a list of furniture and equipment as of the date of filing of the petition;

(D)       monthly income and expense statements for at least 6 months preceding the date of filing of the petition, including a statement regarding incurred and unpaid expenses, signed by the debtor under penalty of perjury; and

(E)        any additional financial information specified by the trustee.

(3)        Trustee’s Duties.  If business reports are not required under this rule, the trustee is not required to perform any additional duties under § 1302(c) with respect to the debtor’s operation of a business.

 

LBR 2083-1 Related Local Forms:

Debtor’s Notice of Conversion of Case to Chapter 7 [hib_2083-1a]

Debtor’s Motion to Dismiss Chapter 13 Case [hib_2083-1b]). 

Debtor’s Motion to Approve Sale in Chapter 13 Case [hib_2083-1c]

Debtor’s Motion to Incur Debt [hib_2083-1d]

Trustee’s Motion to Dismiss for Lack of Feasibility; Notice of Deadline [hib_2083-1e1]

Trustee’s Motion to Dismiss Case; Notice of Hearing; Certificate of Service [hib_2083-1e2]

 

LBR 2090-1.     Attorneys – Admission to Practice.

 

(a)        In General.  The local rules of practice of the District Court regarding attorney admission and practice apply in all bankruptcy cases and proceedings, except as provided in LBR 2091-1.  These include but are not limited to:

(1)        LR83.1  Attorneys; Admission to the Bar of this Court; Mandatory Notices for All Parties Concerning Changes of Address;

            (2)        LR83.2  Attorneys; Practice in this Court;

            (3)        LR83.3  Attorneys; Standard of Professional Conduct;

            (4)        LR83.4  Attorneys; Discipline;

            (5)        LR83.5  Attorneys; Sanctions for Unauthorized Practice;

            (6)        LR83.7  Attorneys; Supervised Student Practice of Law.

 

(b)       Pro Hac Vice.  Attorneys may request permission to appear pro hac vice in a bankruptcy case or proceeding in this court by filing an application substantially conforming to the local form (Application to Appear Pro Hac Vice [hib_2090-1b]) and submitting the assessment required by the district court.  The assessment should be payable to “Clerk, U.S. Bankruptcy Court.”  An attorney admitted to appear pro hac vice in a bankruptcy case will also be admitted to appear pro hac vice in a case that has been consolidated or is being jointly administered with, or in any adversary proceeding related to, the case in which the application has been granted.

 

LBR 2090-1 Related Local Forms:

Petition for Admission to Practice in the United States District Court for the District of Hawaii [HID 002]

Application to Appear Pro Hac Vice [hib_2090-1b]

 

LBR 2091-1.     Attorneys – Withdrawal and Substitution.

 

(a)        Withdrawal of Counsel.  Withdrawal of counsel is the termination of an attorney’s or law firm’s representation of a party in a bankruptcy case or adversary proceeding.  These rule provisions do not apply when a partner, member, or associate leaves a law firm that will continue to represent the client.

            (1)        Bankruptcy Cases.

(A)       When Motion Required.  An attorney seeking to withdraw as counsel in a bankruptcy case must file a motion for court approval if:

            (i)         the attorney represents a debtor;

(ii)        the court approved the attorney’s employment by a trustee or committee under § 327; or

(iii)       the attorney represents a party in a pending contested matter.

(B)       Form of Motion.  Rule 9013-1(c) governs a motion to withdraw as counsel.  The motion must include a statement explaining the reason for withdrawal, unless that would violate the rules of professional conduct, and must indicate whether the client agrees with the withdrawal.  If the client is not an individual, the motion must advise the client that an artificial entity may only appear through counsel and that adverse consequences may result if legal representation is not retained promptly.      

(C)       Service of Motion.  The withdrawing attorney must serve the motion and a notice of hearing on the client, the debtor, the trustee, the Office of the United States Trustee, any committee appointed in the case, and the parties to any pending contested matter in which the attorney has appeared.

(D)       Notice of Withdrawal.  If a motion for court approval is not required, the withdrawing attorney may give notice of the withdrawal by filing a notice substantially conforming to the local form (Notice of Withdrawal of Counsel and Request for Removal from Notice List [hib_2091-1a1D]).  An ECF user may also file a text-only docket entry without attaching the form but during the electronic filing must add the client’s name and address to the creditor list if the client wishes to receive general notices about the bankruptcy case.

(2)        Adversary Proceedings.

(A)       Court Approval Required.  An attorney seeking to withdraw as counsel for any party in an adversary proceeding must obtain court approval by filing a motion, as described in subparagraph (a)(1)(B) of this rule.

(B)       Service of Motion.   The withdrawing attorney must serve the motion and notice of hearing on the client, all other counsel of record, and all other unrepresented parties in the adversary proceeding.

(C)       Statement of Non-Representation.  An attorney representing a debtor in the bankruptcy case whose services in related adversary proceedings are not included in the attorney-client agreement, and who has not made an appearance in the adversary proceeding, is not required to seek court approval but must promptly file a statement of non-representation in the adversary proceeding and serve it on all counsel of record.

 

(b)       Substitution of Counsel.  A substitution of counsel is the contemporaneous replacement of one attorney by another attorney authorized to practice before the court.

            (1)        In General. 

(A)       The substituting attorney must be admitted to practice in the United States District Court for the District of Hawaii. 

(B)       This subdivision (b) does not apply if the party will be left without counsel after the “substitution.”

(C)       If employment of the attorney terminating representation required court approval under § 327, the substitution of counsel will become effective only upon the entry of an order granting an application to employ the substituting attorney.

(2)        Bankruptcy Cases.  Except as provided in subdivision (b)(1)(C), court approval of the substitution is not required.  Substitution of counsel may be accomplished by filing a notice substantially conforming to the local form (Notice of Substitution of Counsel in Bankruptcy Case [hib_2091-1b2]) containing the signatures of the client and the attorneys involved.  The notice must be served on the debtor, trustee, the Office of the United States Trustee, any committee appointed in the case, and parties to any pending contested matter in which the client is involved. 

(3)        Adversary Proceedings.  Notice of substitution in an adversary proceeding may be accomplished with a notice substantially conforming to the local form (Substitution of Counsel in Adversary Proceeding; Order Approving [hib_2091-1b3]) containing the signatures of the client and the attorneys involved.  The notice must be served on other counsel of record and unrepresented parties in the adversary proceeding, and submitted to the judge for approval.

 

(c)        Change of Business Address or Firm Affiliation.  Subdivision (h) of LR83.1 applies in adversary and miscellaneous proceedings.  In bankruptcy cases, an attorney who changes the attorney’s business address or firm affiliation must give notice of the change in each pending case in which the attorney has appeared and has not withdrawn.  This notice must be filed within 14 days of the effective date of the change.

(1)        Form and Service of Notice.  The notice requirement may be satisfied by filing a notice substantially conforming to the local form (Attorney’s Notice of Change of Address / Attorney’s Notice of Change of Firm Affiliation [hib_2091-1c]) or electronically filing a text entry on the case docket, in accordance with procedures established by the clerk.  The attorney must serve the notice on all parties not receiving notices of electronic filing under CM/ECF.

(2)        Change of Firm Affiliation.  An attorney who changes firms but will continue to represent the party in a pending case, contested matter, or adversary proceeding must explicitly indicate that information in the notice.  An attorney who will no longer be representing the party must include a notice that the attorney is withdrawing representation of that party and must (i) indicate the name of another member of the former firm upon whom service may be made, or (ii) comply with the provisions under LBR 2091-1 regarding withdrawal and substitution of counsel.

(3)        Effect of Noncompliance.  An attorney who fails to give or serve notice as required by this subdivision (c) may not use deficient service as a defense if pleadings were sent timely to the attorney’s former address or law firm.

(4)        CM/ECF User Account.  An attorney who is a registered ECF user is responsible for changing, promptly after the effective date of the change, the office, address, and email information in the attorney’s user account.

 

LBR 2091-1 Related Local Forms:

Notice of Withdrawal and Request for Removal from Notice List [hib_2091-1a1D]

Notice of Substitution of Counsel in Bankruptcy Case [hib_2091-1b2]

Substitution of Counsel in Adversary Proceeding; Order Approving [hib_2091-1b3]

● Attorney’s Notice of Change of Address / Attorney’s Notice of Change of Firm Affiliation [hib_2091-1c]

 

LBR 3001-2.     Requests to Pay Administrative Expenses.

 

(a)        Applicability.  Unless the court orders otherwise, this rule governs all requests for payment of administrative expenses under § 503(a), except for:

            (1)        Compensation and expenses awarded under § 330(a), and

(2)        Administrative expenses incurred in the ordinary course of business to the extent authorized under § 364(a).

 

(b)       Form of Request. 

(1)        Requests for Interim Payment.  An entity seeking payment for an administrative expense prior to confirmation of a plan or the filing of a trustee’s final report must file a motion for allowance and payment of an administrative expense in accordance with LBR 9013-1(c).  Payment may be made only upon order of the court allowing the expense and approving an interim payment.

(2)        Requests for Payment in the Ordinary Course of Distributions.  An entity seeking payment for an administrative expense through distributions under a confirmed plan or by the trustee after the filing of a final report may file a request substantially conforming to the local form (Request for Payment of Administrative Expense [hib_3001-2]).  Absent a timely objection to plan confirmation or a final report, payment may be made through a distribution under a confirmed plan or as part of the trustee’s distribution of estate assets, without entry of a separate order allowing the expense.

 

(c)        Timing of Request.  Unless the court otherwise sets a deadline, a request for payment of an administrative expense is timely if filed:

            (1)        In a case under chapter 11, 12, or 13, by the later of:

                        (A)       28 days prior to the date of the plan confirmation hearing; or

                        (B)       28 days after the occurrence of the last event giving rise to the expense;

            (2)        In a case under chapter 7, by the later of:

                        (A)       the deadline for filing a proof of claim;

(B)       28 days after the occurrence of the last event giving rise to the expense; or

(C)       For expenses arising from the use of premises by a trustee or debtor in possession, 28 days after surrender of the premises by the trustee or debtor in possession.

 

(d)       Notice.  An entity requesting payment of an administrative expense under this rule must give notice of the request to the trustee or debtor in possession, the Office of the United States Trustee, and, in a chapter 11 case, any committee appointed in the case, or if no committee has been appointed, the holders of the 20 largest unsecured claims.

 

LBR 3001-2 Related Local Form:

Request for Payment of Administrative Expense [hib_3001-2]

 

LBR 30021. Electronic Filing of Proof of Claim.

 

A proof of claim submitted under Bankruptcy Rule 3002 and documents submitted in compliance with Bankruptcy Rule 3002.1 may be filed electronically using the electronic proof of claim application at the court's website. Documents submitted using this system and in compliance with all instructions and procedural requirements issued by the clerk shall have the same force and effect as if the submitting individual had signed a paper copy of the document.

 

LBR 3003-1.     Chapter 11 Claims Bar Date.

 

Unless the court orders otherwise, proofs of claim or interest required to be filed under Bankruptcy Rule 3003 must be filed within 90 days after the first date set for the meeting of creditors called under § 341.

 


 

LBR 3004-1.     Claims Filed on Behalf of Creditor.

 

(a)        Notice.  A party filing a proof of claim on behalf of a creditor under Bankruptcy Rules 3004 or 3005 must serve the creditor with a copy of the filed proof of claim, and a notice of the filing substantially conforming to the local form (Notice of Claim Filed on Behalf of Creditor [hib_3004-1]).   The filing party must promptly file a certificate of service showing when, how, and on whom service was made.

 

(b)       Amended Claim Filed by Creditor.  When a proof of claim has been filed on behalf of a creditor under Bankruptcy Rule 3004 or 3005, the creditor may file an amended proof of claim within 30 days after service of the notice required under subdivision (a) of this rule.  Unless the court orders otherwise, the amended proof of claim filed by the creditor will supersede the proof of claim filed by another entity.

 

LBR 3004-1 Related Local Form:

Notice of Claim Filed on Behalf of Creditor [hib_3004-1]

 

LBR 3007-1.     Claims – Objections.

 

(a)        Matter Set for Hearing.  A party filing an objection to a claim must obtain a hearing date and time from the courtroom deputy in accordance with Bankruptcy Rule 3007(a).

 

(b)       Form of Objection.  Parties may, but are not required to, employ the applicable local form (Objection to Claim; Notice of Hearing [hib_3007-1]).

 

(c)        Deadline to Respond.  If the claimant fails to respond to the objection by 7 days before the scheduled hearing date, the court may cancel the hearing and sustain the objection by default.

 

(d)       Objection Requiring Adversary Proceeding.  An objection to claim that includes a demand for relief of a kind specified in Bankruptcy Rule 7001 may not proceed under the procedures described in this rule.  Such an objection requires the filing of a complaint to commence an adversary proceeding.

 

LBR 3007-1 Related Local Form:

Objection to Claim; Notice of Hearing [hib_3007-1]

 

LBR 3010-1.     Dividends – Small.

 

(a)        Chapter 7 Cases.  The trustee in a chapter 7 case may pay dividends in amounts less than $5.

 

(b)       Chapter 12 and Chapter 13 Cases.  The trustee in a chapter 12 or chapter 13 case may distribute payments in amounts less than $15.

 

LBR 3011-1.     Unclaimed Funds

 

(a)        Form of Application.  A party seeking a disbursement of unclaimed funds that have been deposited with the clerk must file an application substantially conforming to the local form (Application for Unclaimed Funds [hib_3011-1]).

 

(b)       Proof of Entitlement.

            (1)        Application by Claimant.

(A)       Individual Claimant.  An application by a claimant who is an individual must be accompanied by a copy of a valid photo identification issued by a government agency, such as a driver’s license or a passport. 

(B)       Artificial Entity.  An application by a claimant that is a corporation, partnership, limited liability company, or other artificial entity must be accompanied by documentation showing authority to make the application, such as articles of incorporation, board meeting minutes, or other documentation.  

(2)        Application by Legal Representative.  An application by a claimant’s legal representative, including a funds locator, must be accompanied by an original, notarized power of attorney that clearly authorizes the representative to act on behalf of the claimant.  If the claimant is deceased, an application must be accompanied by a certified copy of a letter of administration, probated will, or other document that clearly authorizes the representative to file the application on behalf of the claimant’s estate.

(3)        Application by Successor in Interest.  An application by a party asserted to be the successor in interest to the original claimant must be accompanied by documentation that clearly establishes a right to payment of the unclaimed funds.

(4)        Address.  The application must state the claimant’s address at the time the claim was made and provide either documentation identifying the claimant as having resided or conducted business at that address at the time, or a declaration to that effect.

 

(c)        Competing Applications.  If there are competing applications for the same unclaimed funds, payment will be made to the original claimant over a representative asserting to be the claimant’s legal representative.  If there is more than one party claiming to be the claimant’s legal representative, the earliest application will be given priority, unless the court orders otherwise.

 

(d)       Service on United States Attorney.  An additional copy of the application for unclaimed funds must be sent to the Office of the United States Attorney, District of Hawaii.  Unless the court orders otherwise, disbursement of any unclaimed funds requires a statement of no objection by the United States Attorney. 

 

(e)        Payment.  If the application is made by the claimant’s legal representative, the clerk will make the check payable to the claimant but will send the payment to the applicant’s address.

 

LBR 3011-1 Related Local Form:

Application for Unclaimed Funds [hib_3011-1]

 

LBR 3015-1.     Chapter 13 – Plan.

 

(a)        Form Plan.  Unless the court orders otherwise, a plan filed in a chapter 13 case must substantially conform to the local form plan (Chapter 13 Plan [hib_3015-1]).  The language of the form plan may not be altered.  The debtor may propose additional or different plan provisions only by setting them out in the “Additional Provisions” section of the plan.

 

(b)       Dismissal Upon Failure to File Plan.  If a plan is not filed with a chapter 13 petition or prior to an order converting the case to chapter 13, the clerk is authorized to issue an order to satisfy the deficiency.  The order may include a notice that failure to file the plan within  14 days may result in dismissal of the case without further notice, unless on or before the deadline the court enters an order extending the time to file the plan.  An order dismissing the case under this provision may include a 180-day bar to refiling a subsequent petition as authorized by § 109(g)(1).

 

(c)        Extension of Time to File Plan.  A debtor may request an extension of time to file a plan by filing and serving on the trustee and United States Trustee a motion substantially conforming to the local form (Debtor’s Motion to Extend Time to File Case Opening Documents [hib_1007-1a3]).  Consideration of the motion may be expedited if the motion includes the trustee’s signature indicating that there is no objection to the request. 

 

(d)       Motion to Reconsider Dismissal.  A debtor whose case has been dismissed for failure to file a plan may request the court to reconsider the order dismissing the case by filing a proposed plan and a motion substantially conforming to the local form (Debtor’s Motion to Reconsider Order Dismissing Case [hib_9024]).

 

(e)        Plan Motions. 

(1)        Definition.   “Plan motions” are the following types of motions directly related to a plan:

(A)       motions to avoid judicial and nonpossessory, nonpurchase-money liens under § 522(f), and

(B)       motions to value collateral under § 506(a) for the purpose of modifying the rights of holders of secured claims as authorized by § 1322(b).          

(2)        Form and Content of Motion.  A plan motion must substantially conform to the corresponding local form (Chapter 13 Plan Motion to Avoid Lien; Notice of Deadline to Object [hib_3015-1avd], or Chapter 13 Plan Motion to Value Collateral; Notice of Deadline to Object [hib_3015-1val]).  The provisions of a plan motion must be consistent with the treatment of the subject claim proposed in the plan.  Supporting documents, including appraisals, declarations, exhibits, and legal memoranda, may be attached to the motion.  A plan motion must be filed separately and as soon as practicable after the plan is filed.

(3)        Notice of Treatment Arguably Contrary to Bankruptcy Code.  If a plan motion provides for treatment of a claim arguably contrary to the Bankruptcy Code such that the plan arguably cannot be confirmed unless the secured creditor accepts it, the debtor must complete the section entitled “Additional Notice of Provision Arguably Contrary to Bankruptcy Code” of the form motion and notice.

(4)        Service.  The debtor must serve the plan motion on the trustee, each lienholder, and any other party holding an interest in the subject property.

(5)        Objections.  An objection to a plan motion is deemed an objection to plan confirmation and must be filed no later than the deadline set for filing an objection to confirmation.

(6)        Amendment of Plan Motions.  An amended plan motion must be consistent with the proposed plan.  The filing of an amended proposed plan does not require the filing of an amended plan motion, so long as the treatment of the affected claim in the amended plan remains consistent with the original motion.

(7)        Disposition of Plan Motions.  The court will decide a plan motion in conjunction with plan confirmation.  Absent a timely objection, the court may cancel the confirmation hearing, confirm the plan, and determine any plan motions.  However, separate orders will be entered for plan confirmation and each plan motion.  An order disposing of a plan motion acts as a final determination of the extent to which the affected claim is a secured claim, notwithstanding the amount indicated as secured in a creditor’s proof of claim.  Unless the court orders otherwise, a post-confirmation plan modification will not affect the order on a plan motion pertaining to the original plan.

 

(f)        Timeliness of Service.  The court may deny, without a hearing, plan confirmation and any plan motion if a certificate of service of the plan or motion is not filed within 7 days after the date of filing of the plan or plan motion.

 

(g)        Interest Rate Paid on Certain Claims.

(1)        Standard Interest Rate.  Except for interest on tax claims and on administrative tax expenses governed by § 511, the clerk will set and publish a standard interest rate applicable to secured and other claims under a confirmed chapter 13 plan.  The setting of a standard interest rate does not bar a debtor or creditor from proposing a different interest rate.  The standard interest rate in effect at the later of the filing of the petition or the conversion of the case to one under chapter 13 will remain in effect for the duration of the plan.

(2)        Interest Rate Calculation. 

(A)       For plans in cases commenced under or converted to chapter 13 between December 1 in one year and May 31 of the following year, the standard interest rate is the national prime rate of interest, as published in the Wall Street Journal on the first business day of that period, plus 1.5%. 

(B)       For plans in cases commenced under or converted to chapter 13 between June 1 and November 30 of the same year, the standard interest rate is the national prime rate of interest, as published in the Wall Street Journal on the first business day of that period, plus 1.5%.

 

LBR 3015-1 Related Local Forms:

Chapter 13 Plan [hib_3015-1]

Motion to Extend Time to File Case Opening Documents [hib_1007-1a3]

Debtor’s Motion to Reconsider Order Dismissing Case [hib_9024]

Chapter 13 Plan Motion to Avoid Lien; Notice of Deadline to Object [hib_3015-1avd]

Chapter 13 Plan Motion to Value Collateral; Notice of Deadline to Object [hib_3015-1val] 

 

 

LBR 3015-2.     Chapter 13 - Plan Amendment and Modification.

 

(a)        Amendment of Plan Before Confirmation.

(1)        Amended Plan.  The debtor may file an amended chapter 13 plan anytime before confirmation by filing and serving on all creditors a plan substantially conforming to the local form plan (Chapter 13 Plan [hib_3015-1]).  The debtor must check the box labeled “Amended” and indicate the date of the plan on the first page.

(2)        Plan Motions.  If the terms of an amended plan are inconsistent with any plan motions filed with the original plan, the debtor must file an amended plan motion.

(3)        Objections.

(A)       Prior Objection Deemed Moot.  An objection to a chapter 13 plan becomes moot upon the filing of an amended plan.  If a party remains opposed to confirmation of an amended plan, the party must file a new objection. 

(B)       Deadline to Object.  An objection to an amended plan must be filed not later than the time specified in LBR 3015-3(a). 

(4)        Amendments Stated Orally at Confirmation Hearing.  The trustee may request that the court confirm a chapter 13 plan with amendments stated orally at the confirmation hearing if the amendments do not prejudice any creditor. 

 

(b)       Modification of Plan After Confirmation. 

            (1)        Debtor’s Motion. 

(A)       Form of Motion and Notice.  The debtor may request modification of a confirmed plan by filing a motion and notice of hearing substantially conforming to the local form (Debtor’s Motion to Modify Confirmed Plan; Notice of Hearing [hib_3015-2b1]).  A copy of the entire plan as modified need not be filed so long as the motion describes with specificity the proposed modifications to the plan then in effect. 

(B)       Service. A debtor’s motion and notice must be served promptly on the trustee and:

            (i)         all creditors and parties in interest; or

(ii)        if the motion is filed after the deadline to file a proof of claim, only those parties who have filed a proof of claim.

(C)       Objections.  An objection to a debtor’s motion to modify a confirmed Chapter 13 plan must be filed not later than 7 days before the motion’s hearing date.

(2)        Motion by Trustee or Creditor.  A motion to modify a confirmed chapter 13 plan brought by a party other than the debtor, including the trustee’s motion to extend the plan’s duration, must be made pursuant to LBR 9013-1(c), except that a response to the motion must be filed not later than 7 days before the hearing date.   The trustee may request a plan extension up to 60 months after the time the first payment was due under the confirmed plan by filing a motion and notice of hearing substantially conforming to the local form (Trustee’s Motion to Extend Plan; Notice of Hearing [hib_3015-2b2]).  The trustee is not required to file a certificate of service if the clerk serves the trustee’s motion and notice using the court’s transmission facilities.

 

LBR 3015-2 Related Local Forms:

Chapter 13 Plan [hib_3015-1]

Debtor’s Motion to Modify Confirmed Plan; Notice of Hearing [hib_3015-2b1]

Trustee’s Motion to Extend Plan; Notice of Hearing [hib_3015-2b2]

 

LBR 3015-3.     Chapter 13 – Confirmation.

 

(a)        Objection to Confirmation.  A party objecting to confirmation of a chapter 13 plan or a plan motion must file an objection by the later of:

(1)        7 days before the date of the confirmation hearing or continued confirmation hearing , and

            (2)        21 days after the date of filing of the plan, amended plan, or plan motion.

 

(b)       Lack of Objections.  In the absence of any timely filed objections to confirmation and any plan motions, the court may cancel the confirmation hearing, confirm the plan, and determine any plan motions. 

 

(c)        Confirmation Orders.   Unless the court directs otherwise, the trustee will prepare a confirmation order substantially conforming to the local form (Order Confirming Chapter 13 Plan [hib_3015-3pln]), attaching the plan as an exhibit, and any order deciding a plan motion (Order Granting Plan Motion to Avoid Lien [hib_3015-3avd] or Order Granting Plan Motion to Value Collateral [hib_3015-3val]).  The trustee may delegate the responsibility to prepare an order to the debtor or the debtor’s attorney.

 

(d)       Procedure Upon Denial of Plan Confirmation.

(1)        Action Required Within 14 days.  An order denying plan confirmation may provide that the case may be dismissed unless, within 14 days after the entry of the order denying confirmation, the debtor:           

            (A)       files an amended plan and any plan motions, or

            (B)       converts the case to a case under another chapter.

(2)        Plan Motions.  If an amended plan is filed following denial of confirmation of a plan, any plan motions must be refiled as amended or renewed motions.

 

(e)        Multiple Denials of Confirmation.  If two or more plans have been denied confirmation in a case, the trustee may include in an objection to any subsequent plan a motion to dismiss the case for prejudicial delay to creditors.  Separate notice of the request for dismissal is not required. 

 

LBR 3015-3 Related Local Forms:

• Objection to Chapter 13 Plan or Plan Motion [hib_3015-3obj]

• Order Confirming Chapter 13 Plan [hib_3015-3pln]

• Order Granting Plan Motion to Avoid Lien [hibhib_3015-3avd]

• Order Granting Plan Motion to Value Collateral [hib_3015-3val]

 

LBR 3017-1.     Disclosure Statement – Approval.

 

(a)        Motion and Notice Required.  A plan proponent seeking approval of a disclosure statement related to a chapter 11 plan must file a motion for approval with the disclosure statement attached as an exhibit.  Except as provided in LBR 3017-2, the moving party must immediately obtain a hearing date and promptly give at least 28 days’ notice of the hearing to all parties in interest.

 

(b)       Form of Notice.   Unless the court orders otherwise, the notice of the hearing on a motion to approve a disclosure statement must substantially conform to the local form (Notice of Hearing on Disclosure Statement [hib_3017-1b]). 

 

(c)        Objections.  A party objecting to approval of the disclosure statement must file a written objection not later than 7 days before the hearing date.  The objection should specify why the disclosure statement (rather than the proposed plan) is objectionable.  The court generally will not entertain arguments about plan confirmation at the disclosure statement hearing. 

 

(d)       Intention to Proceed.  Not later than 3 days prior to the hearing (and any continued hearing), the plan proponent shall advise the court by telephone or e-mail whether the proponent intends to go forward with the hearing.

 

(e)        Duty to Confer.  If an objection to the proposed disclosure statement is filed, the plan proponent and the objecting party must confer in a good faith attempt to resolve the dispute.

 

(f)        Request for Continuance.  A plan proponent desiring a continuance of the hearing on a disclosure statement shall appear at the scheduled hearing to request a continuance.

 

(g)        Adequate Information.  A plan proponent may establish that the proposed disclosure statement contains adequate information through offer of proof, declaration, or, if the court so requires, live testimony.  In all cases, a witness competent to testify must be present.  The plan proponent is not required to file briefs or memoranda.

 

(h)       Confirmation Hearing.  At the conclusion of the disclosure statement hearing, counsel for the plan proponent shall be prepared to advise the court of the amount of court time the confirmation hearing will require.  If a contested confirmation hearing is anticipated, the court will entertain requests that scheduling procedures be established concerning the filing of briefs, exchange and marking of exhibits, disclosure of witnesses and discovery.

 

(i)         Order Approving Disclosure Statement.  If the disclosure statement is approved at the hearing, the plan proponent must promptly prepare and submit for signing an order that substantially conforms to Order Approving Disclosure Statement and Fixing Time for Filing Acceptances or Rejections of Plan, Combined with Notice Thereof (Official Form B13).  The proposed order must attach the approved disclosure statement as an exhibit.

 

LBR 3017-1 Related Local Forms:

Notice of Hearing on Disclosure Statement [hib_3017-1b]

Order Approving Disclosure Statement and Fixing Time for Filing Acceptances or Rejections of Plan, Combined with Notice Thereof [Official Form B13]

 

LBR 3017-2.     Disclosure Statement – Small Business Cases.

 

In a small business case governed by § 1125(f), a plan proponent may file an ex parte motion to seek (i) approval of a disclosure statement submitted using a court-approved standard form, (ii) conditional approval of a disclosure statement subject to final approval after notice and a hearing, or (iii) a determination that the plan itself provides adequate information and that a separate disclosure statement is not necessary.  Any disclosure statement for which conditional or final approval is sought must be attached as an exhibit to the motion.

 

LBR 3018-1.     Ballots – Voting on Plans

 

(a)        Service.  The plan proponent must file a certificate identifying the parties served ballots to accept or reject a chapter 11 plan.  The certificate of service may be combined with the certificate showing service of the disclosure statement and plan.

 

(b)       Ballots to be Returned to Plan Proponent.  Completed ballots must be returned to the plan proponent or its agent, not the court. 

 

(c)        Ballot Report.   Not later than 7 days before the confirmation hearing, the plan proponent must file a ballot tabulation report that:

(1)        shows the percentages of acceptances and rejections for each impaired class, in number and dollar amount;

(2)        identifies any unimpaired classes with an explanation why such classes are unimpaired under § 1124;

(3)        identifies any ballots received after the voting deadline set by the court and whether such ballots are included in the tabulation; and

(4)        attaches all ballots as exhibits (unless there is an unusually large number of ballots).

 

LBR 3020-1.     Chapter 11 – Confirmation.

 

(a)        Service of Disclosure Statement and Plan.  The plan proponent must file a certificate identifying the parties served the disclosure statement and plan.  The certificate of service must be filed promptly after service was made.

 

(b)       Objections to Confirmation.  Unless the court otherwise orders, objections to confirmation of the plan must be filed not later than 7 days prior to the confirmation hearing.   

 

(c)        Duty to Confer.  The plan proponent and any party objecting to confirmation must make a good faith effort to confer prior to the confirmation hearing regarding disputed issues and the conduct of the confirmation hearing.

 

(d)       Status Report.  Not later than 3 days prior to the hearing (and any continued hearing), the plan proponent must advise the court whether the proponent intends to go forward with the hearing.

 

(e)        Request for Continuance.  A plan proponent wishing to continue the confirmation hearing must appear at the scheduled hearing to make the request.

 

(f)        Confirmation Requirements.  If the plan has been accepted by the requisite majorities and no objections to confirmation have been filed, the plan proponent may establish that the plan meets the applicable requirements of chapter 11 by offer of proof, declaration, or, if the court so requires, live testimony.  In all cases, a witness competent to testify must be present.

 

LBR 3022-1.     Chapter 11 – Final Decree.

 

After the entry of a plan confirmation order, the debtor in possession or trustee in a chapter 11 case may request entry of a final decree by filing and serving on the United States Trustee, any committee appointed in the case, or if no committee was appointed, the holders of the 20 largest unsecured claims, an application for a final decree closing the case and discharging the trustee, if one has been appointed.  If no objection is filed within 30 days after the date of filing of the application, the clerk may enter a final decree without further notice or hearing.

 

LBR 3070-1.     Chapter 13 – Payments.

 

(a)        Plan Payments to Trustee.

           

(1)        Form of Payment.  Plan payments must be made in a form acceptable to the trustee.  

(2)        Wage Orders.  The debtor may request an order directing the debtor’s employer to make plan payments directly to the trustee (a “wage order”) by submitting an application substantially conforming to the local form (Application for Order to Employer to Pay Funds to Trustee; Order [hib_3070-1app]).  The trustee may request that the court issue a wage order if the debtor fails to make timely plan payments.  The debtor may request an order vacating a wage order by submitting an ex parte motion substantially conforming to the local form (Motion to Vacate Order to Employer to Pay Funds to Trustee; Order [hib_3070-1vac]).

 

(b)       Pre-Confirmation Lease Payments.  Pre-confirmation payments due under personal property leases governed by § 1326(a)(1)(B) may be made directly by the debtor to the lessor only if the plan so provides or if no plan provision addresses payment of the debtor’s lease obligation.  If the plan provides for payment of the lease obligation by the trustee, the debtor must make the payment as part of the total payment to the trustee, and the trustee will pay the lessor, both before and after confirmation, upon the filing of a proof of claim by the lessor.

 

(c)        Pre-Confirmation Adequate Protection Payments. Pre-confirmation adequate protection payments governed by § 1326(a)(1)(C) may be made directly by the debtor to the secured creditor only if the debtor’s plan so provides or if no plan provision addresses payment of the adequate protection.  If the plan provides for payment of the secured claim by the trustee, the debtor must make the adequate protection payment as part of the total payment to the trustee, and the trustee will pay the secured creditor, both before and after confirmation, upon the filing of a proof of claim by the creditor.

 

LBR 3070-1 Related Local Forms:

Application for Order to Employer to Pay Funds to Trustee; Order [hib_3070-1app]

Motion to Vacate Order to Employer to Pay Funds to Trustee; Order [hib_3070-1vac]

 

LBR 3070-2.     Chapter 13 – Distributions.

 

(a)        Need to File Claim. 

(1)        Need to File Proof of Claim.  A creditor must file a timely proof of claim (Official Form B10) in order to receive distributions under the plan.

(2)        Need to File Administrative Claim.  A debtor’s attorney must file a request for payment of an administrative expense for compensation and reimbursement of expenses to be paid through plan distributions.  The request may be made by filing in the claims register a request substantially conforming to the local form (Request for Payment of Administrative Expense:  Compensation for Debtor’s Attorney in Chapter 13 Case [hib_3070-2a2]).

 

(b)       Arrearage Portion of Secured Claim. Notwithstanding Bankruptcy Rule 3002(a), the holder of a secured claim must file a timely proof of claim in accordance with Bankruptcy Rule 3002(c) in order to receive plan distributions for a prepetition arrearage or default.  If the plan provides for payment of an “arrearage,” the trustee shall make a distribution according to the amount stated on the proof of claim as “Amount of arrearage and other charges at time case filed included in secured claim,” unless the court orders otherwise.  The trustee will make no distribution on the secured portion of a claim that states the amount of the arrearage is $0.00, none, or the like, or if the arrearage amount is left blank.

 

(c)        Untimely Claims.  Unless the court orders otherwise, claims filed after the time periods stated in Bankruptcy Rule 3002(c) will not receive distributions under the plan.  The court may consider a stipulation to allow an untimely claim without notice to other creditors if executed by the debtor and the trustee.

 

(d)       Debtor’s Duty to Examine and Object to Claims. Upon the expiration of the claims bar date for non-governmental creditors, the debtor is responsible for reviewing all claims and filing an objection to any claim with which the debtor disagrees and which has not yet been determined by the court.

 

(e)        Trustee’s Notice of Filed Claims and Intent to Make Distributions.  The trustee must file and serve on the debtor and all creditors a notice of claims filed and intent to make distributions.  The notice must list the claims filed and advise that distributions under the plan will be made according to the classification and amount of claims as filed, unless the court already has decided the value of collateral securing a debt, avoided a lien, or otherwise disallowed or modified a claim by specific order.  The notice may state that the actual distributions will be subject to changes including, but not limited to, determinations of objections to claims, amended claims, stipulations allowing untimely claims, and awards of attorney compensation.  The trustee shall serve the notice of claims filed and intent to make distributions by the later of:

            (1)        28 days after the latest claims deadline stated in Bankruptcy Rule 3002(c), and

            (2)        60 days after the entry of the plan confirmation order.

 

(f)        Determination of Claimant’s Address for Distribution.  The trustee shall make distributions in accordance with the name and address of the claimant stated on the proof of claim, subject to any amendment, assignment, transfer, change of address, or any other information filed with the court as part of the individual case record.  The trustee shall not make a distribution to a claimant or address other than that stated on the proof of claim unless the notice of a change is filed with the court.  A claimant may give notice of an address change by filing a form substantially conforming to the local form (Notice of Change of Address (Proof of Claim) [hib_3070-2f]). 

 

(g)        Claims Amended, Assigned or Transferred After the Deadline to File a Claim.  If a claim is amended, assigned, or transferred after the deadline to file a claim under Bankruptcy Rule 3002, the creditor amending the claim, the assignee, or the transferee must file promptly with the court the document amending, assigning or transferring the claim.

 

(h)       Distribution on Disputed Claim.  To suspend distribution on a disputed claim, the debtor must file and serve an objection to claim on the claimant not later than 28 days after the filing of the trustee’s notice of filed claims and intent to make distributions.  The objection must comply with procedures stated elsewhere in these rules.  Pending a determination of an objection, the trustee shall cease making a distribution on the disputed claim.  If the objection is overruled, at the request of the claimant or the trustee, the court may make provision for payment of any dividends not paid while the objection was pending.  Nothing in these rules prevents the debtor, the trustee, or other party in interest from objecting to a claim after the deadline specified in this paragraph.  However, unless the court orders otherwise, an objection that is untimely under this subdivision and that is sustained shall not result in a refund of amounts already paid on the disputed claim.

 

(i)         Relief from Stay.

 

(1)        Order Granting Relief from Stay.  If an order granting relief from the automatic or codebtor stay unconditionally permits the secured creditor to foreclose on or repossess its collateral, the trustee shall cease making payments as soon as practicable to all creditors whose claims are based entirely on a secured interest in the collateral being foreclosed on or repossessed.

(2)        Stipulation or Order Regarding Relief from Stay.  If a stipulated order on relief from stay or other order provides that an arrearage in postpetition payments will be added to the prepetition debt amount paid through the plan, the creditor must file an amended claim to show the adjusted total amount due.

 

(j)         Payment of Debtor’s Attorney Fees. 

 

(1)        In General.  Plan distributions on account of compensation and reimbursement of expenses of attorneys for chapter 13 debtors will be made before or at the same time of each payment to creditors.  Upon entry of an order allowing fees and expenses, an attorney must draw on any funds being held in a client trust account before accepting any plan distributions.  Unless the court orders otherwise, the following provisions govern distribution amounts for payment of attorney fees.

(2)        Compensation Allowed Under Chapter 13 Attorney Fee Guidelines.  For compensation allowed under the Chapter 13 Attorney Fee Guidelines, the trustee will make an initial disbursement after entry of the plan confirmation order in an amount equal to 50% of the funds then held by the trustee.  Thereafter, the trustee shall disburse monthly to the attorney the lesser of 50% of the monthly plan payment or $350 per month of each plan payment until the fee is paid in full.  For additional fees allowed under the Chapter 13 Attorney Fee Guidelines, the trustee shall disburse monthly to the attorney the lesser of 50% of each monthly plan payment or $350 of each plan payment, commencing with the first distribution period after the filing of the attorney’s request for payment of compensation as an administrative expense. 

(3)        Compensation Allowed by Application and Order Under LBR 2016-1(a).  For compensation that is or will be allowed upon entry of an order on an application made under LBR 2016-1(a), the trustee shall reserve 50% (or such other amount as the court orders) of the total plan payments received from the debtor prior to the entry of the confirmation order (“50% reserve”).  If the debtor’s attorney fails to file an application for compensation and reimbursement of expenses within 60 days after the date of entry of the confirmation order or if the court orders otherwise, the trustee shall distribute the 50% reserve to creditors according to the plan.  If the debtor’s attorney files a timely application, the trustee will continue holding the 50% reserve pending a determination of the application.  Upon the entry of an order allowing attorney fees and expenses, the trustee shall pay the attorney the 50% reserve if so entitled and shall distribute to the attorney, until the fees and expenses are paid in full, the lesser of 50% of each monthly plan payment after confirmation or $350 per month of each plan payment after confirmation.  For additional fees allowed after the initial application, the trustee shall disburse monthly to the attorney the lesser of 50% or $350 of each monthly plan payment, commencing with the first distribution period after the entry of the order allowing the additional compensation.

 

LBR 3070-2 Related Forms:

Proof of Claim [B10]

Request for Payment of Administrative Expense:  Compensation for Debtor’s Attorney in Chapter 13 Case [hib_3070-2a2]

Notice of Change of Address (Proof of Claim) [hib_3070-2f]

 

LBR 4001-1.     Automatic Stay – Relief From.

 

(a)        Motion and Supporting Documents.

(1)        Motion.  A motion requesting relief from the automatic stay imposed by § 362(a) must state the basis under § 362(d) for the relief being sought.  Except for related relief from a codebtor stay under § 1201(a) or 1301(a), the motion may not include requests for other relief.

(2)        Cover Sheet.  The motion must attach a cover sheet substantially conforming to the local form (Cover Sheet - Motion for Relief from Stay [hib_4001-1cs]) summarizing the factual basis for the request. 

(3)        Declaration.  A motion for relief from the automatic stay or codebtor stay must be accompanied by admissible evidence supporting the factual basis for the motion.

            (4)        Account Statement. 

(A)       When Statement Required.  If the motion alleges that the debtor has defaulted in making payments to the moving party, the motion must include an account statement and an admissible declaration attesting to the statement’s accuracy.  The statement must cover the entire period during which the moving party contends that the debtor has been in default.  The statement and declaration must be written in language comprehensible to a lay person, and must include the following information:

(i)         a description of the accrued and unpaid obligations, including the nature of the obligation (e.g., principal and interest, escrow, etc.) and the date on which it accrued;

(ii)        the amount of any payments during the period of the statement; and

(iii)       the date of receipt and posting of each such payment.

(B)       When Statement Not Required.  An account statement is not required if the debtor has indicated in the Chapter 7 Individual Debtor’s Statement of Intention or in a Chapter 13 plan that the property which is the subject of the motion will be surrendered to the moving party.

(b)       Hearing.

(1)        Preliminary Hearing.  Unless the court orders otherwise, a motion for relief from the automatic or codebtor stay will be scheduled for a preliminary hearing in accordance with LBR 9013-1(c).  The moving party must contact the courtroom deputy prior to filing the motion in order to obtain a hearing date that meets the requirements of § 362(e).  Failure to obtain a hearing date in compliance with this rule will be deemed to be the moving party’s consent to extend the automatic stay beyond thirty days, pending the conclusion of a final hearing and determination under § 362(d).    

(2)        Continuance of Hearing.   A preliminary hearing may be continued or consolidated with a final hearing if the moving party, the debtor, and all other parties responding to the motion agree to the continuance or consolidation and the extension of the 30-day period for the entry of an order under § 362(e).  The parties do not need to appear at the initially scheduled hearing if the moving party contacts the courtroom deputy, represents that all parties consent to the change, obtains a new hearing date and time, and promptly files and serves a notice of the continued preliminary hearing or the final hearing.

(3)        Oral Testimony.  Unless the court orders otherwise, no oral testimony will be received by the court at any hearing on a motion for relief from the automatic or codebtor stay.

 

(c)        Notice.

(1)        Form of Notice.  The moving party must file and serve a notice of hearing substantially conforming to the local form (Notice of Hearing [hib_9073-1]), which provides explicit notice of the deadline to file an opposition statement and that the court may grant the relief without a hearing in the absence of a timely filed opposition statement. 

(2)        Separate Document.  The notice must be filed as a separate docket entry.

 

(d)       Service.  The moving party must serve, promptly after filing, a copy of the motion and the notice on:

            (1)        the debtor;

            (2)        the debtor’s attorney;

            (3)        any trustee appointed in the case;

(4)        any committee appointed in the case under § 705 or 1102, or its attorney, or, if no committee of unsecured creditors has been appointed in a chapter 11 case, the creditors included on the list filed pursuant to Bankruptcy Rule 1007(d);

(5)        if the motion seeks to enforce a lien, all other parties, known to the moving party, who claim an ownership or security interest in the same collateral;

(6)        if the motion concerns a codebtor stay, the codebtor; and

(7)        if the motion concerns the commencement or continuation of a judicial, administrative, or other action or proceeding, all parties to the action or proceeding.

 

(e)        Opposition Statement and Reply. 

(1)        Deadlines to file and serve an opposition or reply regarding a motion requesting relief only from the automatic stay under § 362:

(A)       Opposition or other responsive statement:  14 days before the hearing date;

(B)       Reply by moving party:  7 days before hearing date;

(2)        Deadlines to file and serve an opposition or reply regarding a motion including a request for relief from the codebtor stay under § 1201 or 1301:

(A)       Opposition or other responsive statement:  7 days before the hearing date;

(B)       Reply by moving party:  3 days before hearing date.

 

(f)        Order Granting Relief. 

(1)        Relief Granted by Default.  If no timely opposition has been filed, the moving party may request the entry of an order by filing a declaration substantially conforming to the local form (Declaration and Request for Entry of Order [hib_9021-1].  The section regarding the Servicemembers Civil Relief Act of 2003 must be completed.

(2)        Form of Order.  The moving party may obtain the relief requested by submitting a proposed order substantially conforming to the local form order (Order Granting Relief from Stay [hib_4001-1f2].  If the form order is not used, the proposed order must include the following provisions unless the court directs otherwise:

(A)       No deficiency judgment or other money judgment may be entered against the debtor unless and until the bankruptcy court enters an order

            (i)         denying the debtor a discharge;

(ii)        determining that the debt owed to the moving party is not dischargeable;

            (iii)       dismissing the case prior to the entry of a discharge; or

            (iv)       expressly authorizing the entry of such a judgment;

(B)       If the subject property is sold and the proceeds exceed the amount of the secured claim(s), the moving party must turn over the surplus proceeds to the trustee;

(C)       The secured portion of any proof of claim filed by the moving party with respect to the subject property is deemed withdrawn and the moving party may seek collection of any unsecured deficiency amount only by filing a proof of claim under § 501, or by amending a previously filed proof of claim;

(D)       The order will remain effective despite the conversion of the case to one under another chapter;

(E)        The order is limited to granting relief from the automatic stay and/or the codebtor stay under the Bankruptcy Code and does not determine any issues concerning any rights, claims, remedies, or defenses of the moving party, the debtor, or any other party; and

(F)        In a chapter 13 case, as soon as practicable after the trustee receives notice of this order, the trustee shall cease making distributions on all claims secured by the property described above except for funds then being held by trustee for distribution.

(3)        Special Provisions.  The order may include the following special provisions only if the motion specifically requested such relief and provided an adequate factual and legal basis therefor:

            (A)       inapplicability of the stay provided under Bankruptcy Rule 4001(a)(3);

(B)       “in rem” relief, where the order is binding with respect to the subject property in another bankruptcy case that has been or may be filed;

            (C)       retroactive relief or annulment of the stay; and

(D)       with respect to relief from the codebtor stay under § 1201 or 1301, a provision for a deficiency judgment against a codebtor without further order of the court.

 

(g)        Stipulations.  The court will consider granting relief from the automatic or codebtor stay, without the filing of a motion, upon submission of a stipulation for the relief if signed by the debtor, the party seeking relief, the trustee, and any party in interest, including a codebtor.  In a chapter 11 case where no trustee has been appointed, the stipulation must be signed by the members of the unsecured creditors committee or its attorney.  In a chapter 11 case where no trustee or unsecured creditors committee has been appointed, notice of not less than 21 days of the stipulation and an opportunity to object must be given to the holders of the 20 largest unsecured claims.

 

LBR 4001-1 Related Local Forms: 

Cover Sheet - Motion for Relief from Stay [hib_4001-1cs];

Notice of Hearing [hib_9073-1];

Declaration and Request for Entry of Order [hib_9021-1]

Order Granting Relief from Stay [hib_4001-1f2].

 

LBR 4001-2.     Cash Collateral and Postpetition Financing.

 

(a)        Scope of Rule.  This rule applies to all requests for authority to use cash collateral and all requests for authority to incur debt in cases under chapter 7, chapter 11, and chapter 12 (“Financing Motions”).

 

(b)       Contents of Motion.  All Financing Motions must include a budget covering the time period during which the order will remain in effect.

 

(c)        Effect of Noncompliance.  The court may deem unenforceable any provision not described, explained, or identified as required by Bankruptcy Rule 4001(c)(1)(B).

 

(d)       Interim Relief.  Absent extraordinary circumstances, the court will not approve an interim order on a Financing Motion that contains any of the provisions described in Bankruptcy Rule 4001(c)(1)(B).

 

LBR 4001-5.     Automatic Stay – Extending or Imposing Stay; Confirming No Stay in Effect.

 

(a)        Motions to Extend or to Impose Stay.

(1)        Motion Required.  A party requesting an order to extend the automatic stay under § 362(c)(3)(B), or to impose the stay under § 362(c)(4)(B), must file a motion.

(2)        Contents.  The motion must state whether relief is sought with respect to all creditors or only specified creditors, who must be identified by name.  The motion must set forth facts, supported by declarations as appropriate, showing that the filing of the present case is in good faith as to the creditors to be stayed and describing the circumstances that led to dismissal of any prior case(s) by the debtor.

(3)        Notice and Hearing. 

(A)       Motion to Extend Stay.  A party seeking to extend the stay under § 362(c)(3)(B) must obtain a hearing date that is not later than 30 days after the date of filing of the petition.  A request to shorten time is not required if the motion is filed and served not less than 14 days before the hearing date.  The motion must include a notice that any response to the motion must be filed and served on the moving party not less than 7 days before the hearing date.  The moving party is not required to file a reply but may do so not less than 3 days before the hearing date.  Absent a timely response, LBR 9013-1(c)(3) applies.

(B)       Motion to Impose Stay.   A motion to impose the stay is governed by LBR 9013-1(c) and, if shortening of time is sought, by LBR 9006-1(b). 

 

(b)       Motions to Confirm Termination or Absence of Stay.

(1)        Motion Required.  Unless the court orders otherwise, a party requesting an order to confirm that the automatic stay has been terminated or is not in effect under § 362(h)(1) or (j) must file a motion.

(2)        Contents. 

(A)       Motions Under 11 U.S.C. § 362(h)(1).  A motion to confirm termination of the automatic stay filed under § 362(h)(1) must set forth facts, supported by declarations as appropriate, describing the personal property that is the subject of the motion and the actions taken by the debtor and the moving party with respect to the debtor’s statement of intention filed pursuant to § 521(a)(2), and any proposed reaffirmation under § 524(c).  A copy of the debtor’s statement of intention must be attached as an exhibit to the motion.

(B)       Motions Under 11 U.S.C. § 362(j).  A motion to confirm the termination or absence of a stay under § 362(j) must set forth facts, supported by declarations as appropriate, regarding the dismissal or closing of any prior cases, the time any discharge was granted or denied, and any other facts pertinent to the motion.

(3)        Notice and Hearing.  Motions to confirm the termination or absence of a stay are governed by LBR 9013-1(c) and, if shortening of time is sought, by LBR 9006-1(b). 

 

(c)        Service.  A motion and notice governed by this rule must be served on the debtor, the debtor’s attorney, any creditors or parties in interest affected by the motion, the United States Trustee, and any trustee or committee appointed in the case.

 

LBR 4003-1.     Exemptions.

 

(a)        Itemization.  The exemption list in Schedule C – Property Claimed as Exempt must itemize, describe, and separately value each item claimed as exempt, except for household goods with an aggregate value not exceeding $500.

 

(b)       Amendment of Schedule C.

(1)        Amendment not Supplemental.  An amended Schedule C – Property Claimed as Exempt should replace in its entirety, not supplement, the originally filed schedule.  Unless an amended Schedule C is clearly marked as supplemental, the debtor is deemed to have withdrawn any claims of exemption made in the originally filed schedule.

(2)        Service.  The debtor must serve a copy of any amendment to Schedule C on all creditors, and promptly file a certificate of service to show compliance.

 

(c)        Objection to Claim of Exemption.  A party may object to a debtor’s claim of exemption by filing and serving on the debtor, the debtor’s attorney, and the trustee an objection and notice of hearing in accordance with LBR 9013-1(c).

 

(d)       Extending Deadline to Object.  A party may request an extension of the deadline to object to a debtor’s claim of exemption by filing and serving on the debtor, the debtor’s attorney, and the trustee a motion and notice substantially conforming to the local form (Motion to Extend Time to File Objection to Exemptions; Notice of Hearing [hib_4003-1]).

 

(e)        Order Setting Apart Exempt Property.  If no objection to a claim of exemption in a chapter 7 case has been made within the time provided in Bankruptcy Rule 4003(b), the court may, at any time, without a hearing and without reopening the case, enter an order approving claimed exemptions and setting apart exempt property as claimed.

 

LBR 4003-1 Related Local Form:

Motion to Extend Time to File Objection to Exemptions; Notice of Hearing [hib_4003-1])

 

LBR 4004-3.     Discharge of Individual Debtor.

 

(a)        Chapter 7.

(1)        Eligibility for Discharge.  In a case commenced on or after October 17, 2005, the court may grant a discharge to an individual chapter 7 debtor who is otherwise eligible to receive a discharge, unless a statement alleging that § 727(a)(12) applies to the debtor.  Such a statement must be filed no later than the deadline to file a complaint objecting to the debtor’s discharge stated in Bankruptcy Rule 4004(a) or other time set by the court.

(2)        Notice to Creditors.  The clerk will include notice of this rule in the notice given under Bankruptcy Rule 2002(a)(1) to the parties identified in the debtor’s creditor list.

 

(b)       Chapter 11.

(1)        Discharge After Completion of All Plan Payments.  Upon completion of all payments due under a confirmed plan, a debtor in a chapter 11 case who is an individual must file and serve on all creditors a certification and notice of completion of plan payments substantially conforming to the local form (Chapter 11 Individual Debtor’s Certification of Eligibility for Discharge; Notice of Deadline to Object [hib_4004-3b]).  The certification must include a statement that § 1141(d)(5)(C) does not apply to the debtor.  Any objection to the certification and the granting of a discharge must be filed within 30 days after the date of filing of the certification and notice. 

(2)        When Motion Required.  A debtor in a chapter 11 case who is an individual may request the granting of a discharge without completion of all payments under the plan, as provided under § 1141(d)(5)(A) and (B), by filing and serving on all creditors a motion in accordance with LBR 9013-1(c).

 

(c)        Chapter 12 and Chapter 13.

(1)        Discharge After Completion of Plan Payments.  Upon completion of all payments due under a confirmed plan, a chapter 12 or chapter 13 debtor in a case commenced on or after October 17, 2005, must file with the court a certification of eligibility for a discharge substantially conforming to Procedural Form B283 (Chapter 13 Debtor’s Certifications Regarding Domestic Support Obligations and Section 522(q) [B283]).  If the certification indicates that the debtor is eligible for a discharge with respect to § 1228(a) and (f) or § 1328(a) and (h), the clerk will serve on all creditors a notice that any objection to the certification and the granting of a discharge must be filed within 30 days after the date of the notice.  If a debtor fails to file the certification under this rule by 30 days after the date of filing of the trustee’s final report and account, the clerk may close the case without the granting of a discharge.

(2)        When Motion Required.  A debtor in a chapter 12 or chapter 13 case may request the granting of a discharge without completion of all payments under the plan, as provided under § 1228(b) or § 1328(b), by filing and serving on all creditors a motion in accordance with LBR 9013-1(c).  Unless the court orders otherwise, the granting of a discharge under this provision remains subject to the requirements to file a certification of eligibility under paragraph (1) and, in a chapter 13 case, to have completed an instructional course concerning personal financial management. 

 

LBR 4004-3 Related Local Forms:

Chapter 11 Individual Debtor’s Certification of Eligibility for Discharge; Notice of Deadline to Object [hib_4004-3b]

Chapter 13 Debtor’s Certifications Regarding Domestic Support Obligations and Section 522(q) [B283]

 

LBR 4008-1.     Reaffirmation.

 

(a)        Reaffirmation Agreement Deficiency.  If a reaffirmation agreement [B240A] is not accompanied by the Reaffirmation Agreement Cover Sheet [Official Form B27] required under Bankruptcy Rule 4008(a), or if the cover sheet or the reaffirmation agreement is incomplete, the court may not consider a reaffirmation agreement for approval, or may find, without a hearing, that a presumption of undue hardship has not been rebutted to the satisfaction of the court.  The cover sheet is incomplete if it does not contain the debtor’s income and expenses as stated in the reaffirmation agreement and as stated in schedules I and J, together with an explanation of any differences between these amounts.

 

(b)       Extension of Deadline to File Reaffirmation Agreement.  A debtor’s request to defer entry of a discharge and to extend the time to file a reaffirmation agreement by filing a motion conforming to the local form (Debtor’s Motion to Defer Entry of Discharge and Enlarge Time to File Reaffirmation Agreement [hib_4008-1b]), generally will be considered ex parte.  A motion for such relief by a party other than the debtor must comply with LBR 9013-1(c).

 

LBR 4008-1 Related Local Forms:

Reaffirmation Agreement [B240A]

Reaffirmation Agreement Cover Sheet [Official Form B27]

Motion to Defer Entry of Discharge and Enlarge Time to File Reaffirmation Agreement [hib_4008-1b]

 

LBR 5001-2.     Clerk - Location.

 

(a)        Address of Clerk’s Office.  The clerk’s office is located in Honolulu, Hawaii.  The mailing address is:  United States Bankruptcy Court, District of Hawaii, 1132 Bishop Street, Suite 250, Honolulu, HI 96813.

 

(b)       Website.  Local rules, forms, court calendars, and other information are available through the Internet at http://www.hib.uscourts.gov.

 

(c)        CM/ECF and PACER.  Documents may be filed and viewed through the Internet by using the federal judiciary’s Case Management/Electronic Case Files (“CM/ECF”) and Public Access to Court Electronic Records (“PACER”) systems at https://ecf.hib.uscourts.gov.  CM/ECF and PACER accounts are required for access.

 

LBR 5005-1.     Filing Papers – Requirements.

 

(a)        Filing.  Documents to be filed in a bankruptcy case or proceeding must be filed with the clerk of the bankruptcy court.

 

(b)       Caption Requirements.  In addition to the information generally required by these rules, a party filing a document with the clerk must include the following in the document’s caption:

(1)        the chapter of the Bankruptcy Code under which the case is currently pending; and

            (2)        if the document is the subject of a hearing or trial,

(A)       the date and time of the hearing or trial, and

(B)       the name of the presiding judge.

 

(c)        Defective Pleadings and papers.

            (1)        The clerk may reject without filing a petition that is submitted:

(A)       by a person who may not file a voluntary petition pursuant to an order of this court or any other federal court;

(B)       in paper form without the original signature of the debtor, and, if any, the joint debtor and the attorney for the debtor(s); or

(C)       without a creditor mailing matrix.

(2)        The clerk may reject without filing any document, including a petition, that is submitted:

(A)       without the fee required to be paid at the time of filing by 28 U.S.C. § 1930(a) or (b), in a manner acceptable to the clerk;

(B)       in paper form without the original signature of the individual submitting the document;

(C)       without the verification or declaration required under Bankruptcy Rule 1008; or

(D)       for filing in a closed or non-existent case in this court, unless the document’s purpose is to commence or reopen a case.

(3)        The clerk shall give prompt notice to the party whose document has been rejected for filing, including a specific description of the deficiency.

(4)        Any party affected by the rejection of a document may file a motion for judicial review of such action within 7 days after the date of the clerk’s rejection notice.  The moving party must serve notice of a motion for such review on all parties affected by the document subject to the motion.  If judicial review results in a determination that the rejection was improper, the document will be deemed filed as of a date and time set by the court. 

 

LBR 5005-2.     Filing Papers – Number of Copies.

 

(a)        Documents for Filing.  Any party filing a document in paper form must submit to the clerk one copy of the document with an original signature.  Upon request, the clerk will affix the date and time of filing stamp on a reasonable amount of additional copies.

 

(b)       Copy for Chambers.  A paper copy of a filed document should only be submitted to the judge’s chambers if:

            (1)        requested by the clerk or chambers staff; or

            (2)        the document is filed:

(A)       5 days or fewer before the hearing or trial to which the document pertains; or

(B)       after the applicable deadline.  (This provision does not excuse or permit the untimely filing of a document and the court may disregard any such document.)

 

LBR 5005-4.     Electronic Filing.

 

(a)        Scope of Electronic Filing.  Documents may be filed, signed, verified and served by electronic means, in accordance with procedures promulgated by the court.  Except as prescribed by local rule, order, or other procedure, the court has assigned all cases and proceedings to the CM/ECF system.  Unless otherwise expressly provided in these rules or in exceptional circumstances preventing a filer from filing electronically, all documents required to be filed with the court in connection with a case or proceeding must be electronically filed.

 


 

(b)       CM/ECF Eligibility, Registration, Passwords.

(1)        Eligibility.  An individual entitled to file documents with the court electronically is referred to as an ECF User.  All attorneys permitted to practice before the federal courts in the District of Hawaii are eligible to be ECF Users.  The clerk may authorize other individuals to be ECF Users with full or limited participation in the CM/ECF system.

(2)        Registration.  An individual eligible to be an ECF User must complete a registration form substantially conforming to the applicable local form (CM/ECF Registration Form [hib_5005-4bA, hib_5005-4bF, hib_5005-4bL]).  Signing the registration form may constitute consent in writing to receive service and notice by electronic means to the full extent permitted under the Federal Rules of Bankruptcy Procedure, and a waiver of the right to receive service and notice on paper.  An ECF User may withdraw from participation in the CM/ECF system in accordance with procedures prescribed by the clerk.

(3)        Login and Passwords.  Upon the acceptance of an individual’s registration request, the clerk will issue a login and password to the ECF User.  The password may be changed by the ECF User after the initial access to the system.  Use of the ECF User’s login and password constitutes the signature of that individual, as provided further in this rule.

(4)        Filing Agents.  An individual authorized by an ECF User to electronically file documents in the name of the ECF User is referred to as a Filing Agent.  The clerk may require that an individual who files on behalf of an ECF User be formally designated as a Filing Agent.  Upon acceptance of a registration form authorizing an individual to be a Filing Agent, the clerk will issue to the individual a login and password associated with the ECF User’s main account.  The ECF User’s signed acknowledgement on the Filing Agent’s registration form conclusively establishes the agency relationship between them. Use of the Filing Agent’s login and password has the same effect as use of the ECF User’s login and password.  The ECF User has the ability to remove a Filing Agent from the main account.  If the agency relationship is terminated, the ECF User as soon as practicable must remove the Filing Agent from the main account or notify the clerk to deactivate the Filing Agent’s login and password in order to prevent any unauthorized filing.

 

(c)        Consequences of Electronic Filing.

(1)        Entry on the Docket.  Electronic transmission of a document to the CM/ECF system consistent with these rules, together with the transmission of a Notice of Electronic Filing from the court, constitutes filing of the document for all purposes of the Federal Rules of Bankruptcy Procedure and the local rules of this court, and constitutes entry of the document on the docket kept by the clerk under Bankruptcy Rule 5003.

(2)        Official Record.

(A)       Document electronically filed.  When a document has been filed electronically, the official record is the electronic recording of the document as stored by the court, and the filing party is bound by the document as filed.  A document filed electronically is deemed filed at the date and time stated on the Notice of Electronic Filing from the court.

(B)       Document submitted in paper form.   When a document submitted in paper form has had its image electronically recorded, the official record is the electronic recording of the document as stored by the court, and the filing party is bound by the document as so filed.  A document submitted in paper form is deemed filed at the earlier of (i) the date and time stated on the Notice of Electronic Filing from the court or (ii) the date and time stamp affixed by the clerk.  The clerk is not required to retain any paper document after making an electronic recording thereof consistent with the technical standards, if any, established by the Judicial Conference of the United States and the requirements, if any, prescribed by the Administrative Office of the United States Courts.

(3)        Deadlines.  Filing a document electronically does not alter the filing deadline for that document.  Filing must be completed by 11:59 p.m. Hawaiian Standard Time as recorded by the court’s CM/ECF server in order to be considered timely filed that day. 

(4)        Virtual Documents.  The court may create certain text-only entries on the docket for selection by an ECF User that consist entirely of the text contained in the docket entry and for which there is no separate electronically recorded image.  Such virtual documents are fully effective despite the absence of a document image linked to the entry.

 

(d)       Entry of Court-Issued Documents.

(1)        In General.  All orders, decrees, judgments, and proceedings of the court will be filed in accordance with these rules, which will constitute entry on the docket kept by the clerk under Bankruptcy Rules 5003 and 9021.  Any order or other court-issued document filed electronically without the original signature of a judge or clerk, including a document that is a virtual document or a text-only docket entry, has the same force and effect as if the judge or clerk had signed a paper copy of the order and it had been entered on the docket in a non-electronic manner.

(2)        Summons.  The clerk may sign, seal, and issue a summons electronically.  A summons in an adversary proceeding and a summons to an alleged debtor in an involuntary case containing the name of the clerk, the image of the seal of the court, and the identification of the court may be made available for downloading from the court’s website.  Such a summons, once completed in accordance with Fed. R. Civ. P. 4, dated on or after the date of the filing of a complaint or an involuntary petition, and filed with the court by an ECF User, shall be deemed to be a valid summons signed, sealed, and issued by the clerk.

 

(e)        Attachments and Exhibits - Excerpts.  Attachments and exhibits should contain only those excerpts of the referenced material that are directly germane to the matter under consideration by the court.  Excerpted material must be clearly and prominently identified as such.  A party filing excerpts of a document under this rule does so without prejudice to the right to file timely additional excerpts or the complete document.  A responding party may file timely additional excerpts or the complete document that the party believes to be directly germane to the subject matter.

 

(f)        Signatures.

(1)        ECF User.  Use of the ECF User’s login and password or a Filing Agent’s login and password constitutes the signature of the ECF User for all purposes, including those under Bankruptcy Rule 9011 and 28 U.S.C. § 1746, and has the same force and effect as if the ECF User had affixed his or her signature on a paper copy of the document being filed.

(2)        Debtor.  At the time a bankruptcy petition and accompanying schedules and statements, including amendments thereof, are filed electronically, the ECF User must be in possession of the completed paper copies signed by the debtor.  The declarations or certifications required of a debtor in these documents must be made by submitting a paper copy of a declaration substantially conforming to the local form (Declaration re: Electronic Filing [hib_5005-4f2]) with the original signature of each individual or joint debtor, or the original signature of an authorized individual on behalf of a debtor that is an artificial entity.  The Declaration re: Electronic Filing must be filed within 7 days after the date of electronic filing of the subject document. 

(3)        Retention of Originally Signed Documents.  The originally signed paper copies of a bankruptcy petition and accompanying papers required to be verified under Bankruptcy Rule 1008 and any declaration made by any party under penalty of perjury in accordance with 28 U.S.C. § 1746 must be retained by the ECF User until one year after the date that the case or proceeding is closed.  The court, on its own motion or on the request of a party in interest, may require the production of any originally signed document.  In lieu of producing an originally signed paper document, an ECF User may produce the document’s scanned image with the digital file’s “date modified” information attached.

(4)        Sanctions.  Failure to comply with the provisions of this rule regarding signatures and retention of originally signed documents may result in dismissal of a case or proceeding and the striking of documents without further notice or hearing, and the imposition of monetary and other sanctions on the ECF User and Filing Agent.

(5)        Other Requirements.  The court may adopt further requirements regarding signatures through issuance of administrative procedures.

 

(g)        Service and Notice by Electronic Means.  Electronic transmission through the CM/ECF system of a notice of electronic filing and, unless the document is virtual or a text-only docket entry, a link to the image of the document that has been filed constitutes service and notice of the entry of that document in accordance with Bankruptcy Rule 9022 and Fed. R. Civ. P. 5(b)(2)(E) to those persons who consented in writing to accept electronic service or notice. 

 

(h)       Filing Prevented by Technical Failures.

(1)        Definition.  A technical failure means that the court’s CM/ECF server, without notice, is unavailable to ECF Users for electronic filing.  It does not include incidents where the court’s server is not accessible due to a failure of the filer’s software or hardware, or the filer’s Internet connection. 

(2)        Relief from Technical Failure.  An ECF User who is unable to effect a filing due to a technical failure should document the incident and report it to the clerk as soon as practicable.  If a filing is made untimely as the result of a technical failure, an ECF User may seek appropriate relief from the court.

 

(i)         Hyperlinks.

(1)        Link Within Same Document.  An electronically filed document may contain a hyperlink to another portion of the same document.

(2)        Link to External Source.  An electronically filed document may contain a hyperlink to a location on the Internet that contains a source document for a citation.  However, hyperlinks are simply a convenient means for accessing reference material and may not replace standard citation format.  Complete standard citations must be included in the document text.  Neither a hyperlink, nor any site to which it refers, may be considered part of the record.  The court accepts no responsibility for accessibility to or the functionality of any hyperlink or its content.

 

LBR 5005-4 Related Local Forms:

CM/ECF Registration Form [hib_5005-4bA, hib_5005-4bF, hib_5005-4bL]

Declaration re: Electronic Filing [hib_5005-4g]

 

LBR 5011-1.     Withdrawal of Reference.

 

(a)        Motion – Where Filed.  A motion to withdraw the reference of a case or proceeding must be filed with the clerk of the bankruptcy court.  Upon filing, the clerk will transmit a copy of the motion to the clerk of the district court.

 

(b)       Automatic Stay.  Nothing in this rule shall modify any stay imposed by  § 362(a), 922, 1201(a), or 1301(a).

 


 

LBR 5073-1.     Photography, Recording Devices & Broadcasting.

 

(a)        Prohibition.  Unless the court orders otherwise, taking a photograph, making an audio or video recording, or broadcasting by radio, television, or otherwise in the courtroom during or in connection with any hearing, trial, or other proceeding is prohibited.  If a court proceeding is recorded for a specific purpose in accordance with the policy of the Judicial Conference of the United States, the dissemination of any recorded courtroom transmission by any means, for any purpose, by or to any person, without a court order authorizing such dissemination, is prohibited.

 

(b)       Exception.  Subdivision (a) does not apply to audio recordings of proceedings made by court staff for the purpose of making the official record.  The presiding judge may authorize public access to such audio recordings on PACER.  A party objecting to access to an audio recording being made available on PACER must file an objection no later than the time of the hearing or trial and bring it to the attention of the judge at the commencement of the proceeding.

 

LBR 5077-1.     Transcripts and Recordings.

 

(a)        Requests for Transcripts and Recordings.

(1)        Transcripts.  A transcript of a court proceeding may be ordered by filing a request substantially conforming to the local form (Request for Transcript [hib_5077-1a1]). 

(2)        Audio Recordings.  An audio recording of a proceeding may be ordered by filing a request substantially conforming to the local form (Request for Audio Recording of Hearing [hib_5077-1a2]. 

 

(b)       Delivery of Transcript to Clerk.  The transcriber may deliver a certified copy of a transcript to the clerk in accordance with 28 U.S.C. § 753 by filing such a copy electronically in the court’s CM/ECF system.

 

(c)        Restricted Access Period.  Unless the court orders otherwise, a transcript will not be made electronically available to the general public via the Internet until at least 90 days after the date the transcript is filed.  During the 90-day restricted access period, a printed copy of the transcript may be obtained directly from the transcriber.  After the 90-day period, the transcript will be available for printing for a fee at public computer terminals in the Clerk’s Office, and may be viewed for a fee through the Internet using the federal judiciary’s Public Access to Court Electronic Records (“PACER”).  The transcript may be viewed at public computer terminals in the Clerk’s Office at any time without a fee.

 

(d)       Notice of Filing.  Upon the electronic filing of a transcript, the clerk will serve a notice of filing of transcript on each party noted in the transcript as making an appearance. 

 

(e)        Responsibility to Review.  Each party attending the hearing is responsible for reviewing the transcript for compliance with Bankruptcy Rule 9037(a). A party is responsible for reviewing the following:

            (1)        opening and closing statements made on the party’s behalf;

            (2)        statements of the party;

            (3)        the testimony of any witnesses called by the party; and

            (4)        any other portion of the transcript as ordered by the court.

 

(f)        Request for Redaction. 

(1)        Personal Data Identifiers.  A party may request redaction of the information described in Bankruptcy Rule 9037(a) by filing a request substantially conforming to the local form (Request for Redaction of Personal Data Identifiers [hib_5077-1f]) not later than 21 days after the date of filing of the transcript. 

(2)        Other Information.  A party may request redaction of additional private or sensitive information by filing a motion not later than 21 days after the date of filing of the transcript.

 

(g)        Redaction by Transcriber.  If a request for redaction is timely filed under paragraph (f)(1) of this rule, the transcriber must file a redacted version of the transcript not later than 28 days after the date of filing of the original transcript.  If a motion is timely filed under paragraph (f)(2) of this rule, the transcriber must file a redacted version of the transcript not later than 14 days after the court grants the motion.  The court may extend or shorten these time periods.  If a redacted version is filed, only the redacted version will be available via the Internet.  The original unredacted transcript will remain available for viewing at public computer terminals in the Clerk’s Office.

 

(h)       Use of Transcript as Exhibit.  A party attaching a copy of a transcript or a portion thereof as an exhibit to another filing at any time must ensure that all personal information protected under Bankruptcy Rule 9037 is redacted.

 

(i)         Limitations.  Nothing in this rule:

(1)        creates a private right of action or a claim against the United States or any of its employees;

(2)        changes any other rules, policies, or procedures with respect to the sealing or redaction of court records for any other purpose; or

(3)        affects or limits the right of any party, or any other person or entity, to request production of a transcript on an expedited basis.

 

LBR 5077-1 Related Local Forms:

Request for Transcript [hib_5077-1a1]

Request for Audio Recording of Hearing [hib_5077-1a2]

Request for Redaction of Personal Data Identifiers [hib_5077-1f]

 

LBR 5081-1.     Fees – Form of Payment.

 

(a)        Form of Payment.  The following methods of payment must be used to pay the fees required under 28 U.S.C. § 1930 and the Appendix to 28 U.S.C. § 1930 (Bankruptcy Court Miscellaneous Fee Schedule):

(1)        cash (exact amount may be required);

            (2)        cashier’s check;

            (3)        certified check;

            (4)        money order;

(5)        if the payor is an attorney admitted to practice in the District of Hawaii, a check imprinted with the name of the attorney’s law firm or a client trust account; or

(6)        credit or debit card if the payment is made in connection with filing a document electronically by a registered CM/ECF user.

 

(b)       Rejection for Unacceptable Form of Payment.  When a statutory fee is required for the filing of a document, the clerk may reject the submission of any document that is not accompanied by payment in an acceptable form under this rule.

 

LBR 6004-1.     Sale of Estate Property.

 

(a)        Sales Free and Clear of Liens.

(1)        Motion Required.  A party may obtain an order authorizing the sale of estate property free and clear of liens or other interests by filing and serving a motion on the debtor, trustee, any committee appointed in the case, the United States trustee, and all parties with an interest in the property or directly affected by the proposed sale.   Unless the court orders otherwise, the motion must provide that liens and other interests will attach to the proceeds of the sale.  The motion must attach a cover sheet substantially conforming to the local form (Cover Sheet – Motion to Sell Property [hib_6004-1a]), must identify the name and address of each lienholder and any other party whose property rights are affected by the proposed sale, and must identify on the cover sheet  the basis for compliance with § 363(f).  In addition to the information on the cover sheet, the motion must include, immediately below the caption, the statement:  “THIS MOTION AFFECTS THE PROPERTY RIGHTS OF . . .“ with the name of each holder of a lien or other interest whose property rights are affected.

(2)        Supporting Documents. 

(A)       Memorandum of Law.  The motion must be supported by a memorandum of law explaining compliance with § 363(f).

(B)       Declaration.  The motion must be accompanied by admissible evidence supporting the factual basis for the motion and showing satisfaction of one or more conditions under § 363(f).  The evidence must include a copy of a current title report, a current Uniform Commercial Code financing statement, or other report on the status of the title to the real or personal property and identification of any security interests in the subject property.

(C)       Notice.  Unless the court orders otherwise, the moving party must obtain a hearing date and give notice to all creditors in accordance with LBR 9013-1(c).  The notice of the hearing must contain a description of the property, identification of the purchasing party, and the material terms of the sale (including any provision for overbidding at the hearing).

 

(b)       Sales Subject to Liens.  A party seeking to sell estate property subject to one or more liens which will not be discharged from the proceeds of the sale at closing must obtain an order approving the sale.  Subdivision (c) of this rule applies to such a sale.

 

(c)        Other Sales Outside the Ordinary Course of Business.  If the subject property is not being sold free and clear of liens or other interests, or is being sold subject to one or more liens which will not be discharged from the sale proceeds at closing, the trustee or debtor in possession may obtain an order approving the sale by filing a notice of the proposed sale substantially conforming to the local form (Notice of Proposed Use, Sale, or Lease of Property [hib_6004-1c]).  The notice must be served on the debtor, any committee appointed in the case, the United States trustee, all creditors, and any parties with an interest in the property or directly affected by the proposed sale. 

 

(d)       Trustee’s Sale of Property Under $2,500.  When all of the nonexempt property of the estate has an aggregate gross value less than $2,500, the clerk may give a general notice of intent to sell such property other than in the ordinary course by including such notice in the notice of commencement of the case, the notice of need to file a proof of claim, or other such notice, without further notice or a hearing.  An objection to this procedure must be filed not later than 21 days after the date of filing of such notice.

 

(e)        Trustee’s Sale of Personal Property on Leased Premises.  A motion by a trustee or debtor in possession to sell personal property of the estate located on leased premises may be heard on 7 days’ notice without an order shortening time.

 

(f)        Special Provisions.

(1)        Good Faith Finding.  A party seeking approval of a sale or lease of property as being made in good faith under § 363(m) must make the specific allegation of good faith in a motion governed by this rule and provide supporting evidence.

(2)        10-Day Stay After Entry of Order.  A party seeking a provision in the order approving sale which waives the stay provided for in Bankruptcy Rule 6004(h) must include a specific request for this provision in the motion and the notice.  

 

LBR 6004-1 Related Local Forms:

Cover Sheet – Motion to Sell Property [hib_6004-1a]

Notice of Proposed Use, Sale, or Lease of Property [hib_6004-1c]

LBR 6006-1.     Executory Contracts and Unexpired Leases.

 

(a)        Notice of Motion Regarding Assumption, Rejection, Assignment, or Performance of Obligations.  In addition to the notice required by Bankruptcy Rule 6006(c), notice of a motion or stipulation to assume, reject, or assign an executory contract or unexpired lease, including an extension of time to do so, or to compel performance of an obligation under a contract or lease must be served upon: 

(1)        those entities known to the movant to be entitled to receive notice of a default, termination, or assignment of the contract or lease under the terms of the contract or lease itself or under the terms of any related contract with the debtor; and

(2)        in a chapter 9 or chapter 11 case, the chair and counsel of record of each committee of creditors and each committee of equity security holders appointed pursuant to § 1102 or, if no committee has been appointed, the creditors that hold the 20 largest unsecured claims.

 

(b)       Expedited Rejection.  Notwithstanding subdivision (a) of this rule, a chapter 7 trustee may move to reject an unexpired lease of nonresidential real property where the debtor is the tenant on 24 hours’ notice given only to the other party to the lease.   Such motions generally will be considered by the court without a hearing.

 

LBR 6070-1.     Tax Information Filed with Court.

 

(a)        In General.  An individual debtor’s tax return may be filed with the court only if the filing is required under § 521(f).  The term tax return includes a transcript of a tax return, if the debtor elects to file a transcript rather than the complete tax return.  This rule only applies to tax information which is filed with the court.  It does not affect the right of a trustee, the Office of the United States Trustee, or a party in interest to request that the debtor provide tax information directly to the requesting party.

 

(b)       Confidentiality of Tax Information.  An individual debtor’s tax return information that is filed with the court under § 521 is confidential.  Persons other than judicial officers and court employees may not view such tax information without a court order.  Public access to such tax information is limited to viewing a docket entry that may include the name of the taxpayer, the type of tax information (e.g., 2009 Form 1040), and the tax period.

 

(c)        Docketing of Tax Information.  When electronically filing tax information provided under § 521, the filer must use the specific docketing event prescribed by the clerk to safeguard the confidentiality of the tax information.  Failure to use the correct docketing event may result in the transmission and display of confidential tax information to persons who are not entitled to view such information and may result in sanctions imposed on the filing party.

 

(d)       Redaction of Personal Identifiers.  Prior to filing any tax information with the court, the filing party must redact all personal identifiers as required under Bankruptcy Rule 9037.  Court employees are not responsible for making any redactions of personal identifying information. 

 

(e)        Obtaining Access to Tax Information on File.  A party in interest other than a party identified in § 107(c)(3) may seek access to the tax information filed under § 521 by filing a motion.  The motion must be served on the debtor and the debtor’s attorney and must:

            (1)        Describe the moving party’s status in the case;

            (2)        Describe the specific tax information sought;

(3)        State that the information cannot be obtained by the moving party from any other sources; and

            (4)        Show a need for the tax information.

 

(f)        Order Granting Access to Tax Information.   For good cause, the court may enter an order granting a party access to specific tax information.  The order must include language advising the moving party that the tax information is confidential and that any disclosure, dissemination, or improper use of the information may result in sanctions.

 

LBR 6071-1.     Property of the Estate.

 

An entity exercising control over a financial account, safe deposit box, or other property which may be property of the estate may request instructions from the court by filing an application substantially conforming to the local form (Application for Instructions Regarding Property; Notice of Deadline to Request Hearing; Certificate of Service [hib_6071-1]).  The application must be served on the debtor, the trustee, and any other party known to claim an interest in the property.  If the party seeking instructions under this rule is an artificial entity, the entity may file the request without being represented by counsel.   

 

LBR 6071-1 Related Local Form:

Application for Instructions Regarding Property; Notice of Deadline to Request Hearing; Certificate of Service [hib_6071-1]

 

 
 

 

 

 

 


LBR 7001-2.     Effect of Dismissal of Bankruptcy Case on Pending Adversary Proceeding         .

 

Whenever a case is dismissed, any adversary proceeding filed in connection with that case will be dismissed without prejudice unless otherwise ordered, and any proceedings that have been removed to the bankruptcy court in connection with that case shall be remanded.

 

LBR 7001-3.     Civil RICO Claims.

 

Unless the court orders otherwise, any local rules of the district court governing claims based on the Racketeer Influenced and Corrupt Organizations Act (RICO), codified at 18 U.S.C. § 1961, et seq., apply in adversary proceedings.

 

LBR 7003-1.     Cover Sheet.

 

Every complaint initiating an adversary proceeding must be accompanied by a cover sheet substantially conforming to the Director’s Procedural Form (Adversary Proceeding Cover Sheet [B104]).  

 

LBR 7003-1 Related Form:

Adversary Proceeding Cover Sheet [B104]

 
 

 

 

 


LBR 7007-2.     Statement of Non-Opposition.

 

Requirement to File.  If a respondent does not oppose a motion in an adversary proceeding, the respondent must file a statement of non-opposition not later than the deadline to file a response.

 

LBR 7016-1.     Pretrial Procedures.

 

(a)        Counsel’s Duty of Diligence.  Counsel for parties in an adversary proceeding must diligently take all steps necessary to bring the action to trial.

 

(b)       Scheduling Conference. 

(1)        Conference Date and Time.  Upon the filing of a complaint, the plaintiff must obtain a scheduling conference date and time from the courtroom deputy. 

(2)        Scheduling Conference Statement.  Not later than 7 days before the scheduling conference, each party must file with the court and serve on all other parties a scheduling conference statement addressing the following subjects:

            (A)       nature of the action, including a concise factual background;

                        (B)       jurisdiction and venue;

                        (C)       demand for jury trial;

(D)       disclosures under Fed. R. Civ. P. 26 not covered by the report required under Fed. R. Civ. P. 26(f);

(E)        discovery completed, in progress, and any pending motions related to discovery issues;

(F)        special procedures;

(G)       related cases in any state or federal court; and

(H)       prospects of settlement, including use of the bankruptcy alternative dispute resolution program.

(3)        Attendance.  All parties receiving notice of the scheduling conference must attend and be prepared to discuss the items listed under paragraph (2) of this rule and the following:

(A)       service of parties not yet served;

(B)       anticipated motions, and deadlines to the filing and hearing of motions, including motions to dismiss or for summary judgment;

            (C)       deadlines to join other parties, amend pleadings, and conduct discovery;

                        (D)       setting a trial date and any pretrial proceedings; and

(E)        any special procedures or other matters affecting the speedy, just, and inexpensive determination of the action.

 

(c)        Scheduling Order.  Unless the court directs otherwise, the following deadlines and provisions apply in an adversary proceeding and will be set forth in the scheduling order.

            (1)        Motions.

(A)       Motions to Join or to Amend.  Motions to join other parties or to amend pleadings may be filed not later than 28 days after the date of entry of the scheduling order. 

(B)       Motions for Summary Judgment or to Dismiss.  Dispositive motions, including motions for summary judgment or to dismiss, must be filed so as to be heard not later than 28 days before the trial date.

(C)       Motions in Limine.  Motions in limine and other objections to witnesses or exhibits may be filed not later than 14 days before the trial date.  The title of a motion or objection must clearly identify the subject matter.  A response to a motion in limine or other objection may be filed not later than 7 days before the trial date. 

(2)        Trial Briefs.  Not later than 28 days before the trial date, each party must file and serve on all other parties a trial brief discussing all significant issues of law, including foreseeable procedural and evidentiary issues, setting forth concisely the party’s position and the supporting arguments and authorities.  A trial brief exceeding 15 pages must include a table of contents and a table of authorities.     

(3)        Witness Lists.  Not later than 28 days before the trial date, each party must file and serve on all other parties a final comprehensive witness list, including a brief summary of the anticipated testimony from each witness.

(4)        Interpreters.  Not later than 28 days before the trial date, any party wishing to use an interpreter for the testimony of one or more witnesses must notify the courtroom deputy of such a request.  The party wishing to use the interpreter must verify that the individual has been certified as an interpreter by the Director of the Administrative Office of the United States Courts and indicate whether the selection of the interpreter is agreeable to all parties.  The requesting party’s witness list must include the name of the interpreter and identify the parties whose testimony will be interpreted.

(5)        Exhibits. 

(A)       Deadlines.  Not later than 28 days before the trial date, each party must serve on all other parties, but not file with the court, copies of all exhibits, including both evidentiary exhibits and illustrative aids.  Unless the court directs otherwise, exhibits may not be submitted to the court until the day of trial. 

(B)       Marking.  Plaintiff’s exhibits must be marked with numbers; defendant’s exhibits must be marked with letters; additional parties should contact the courtroom deputy for marking instructions.  Enlargement of evidentiary exhibits must bear the same exhibit marking as the underlying exhibit.  Illustrative aids and enhancements of evidentiary exhibits (e.g., a copy of an exhibit including lines, highlighting, or explanatory text) must be separately listed and marked.  At trial, each party must tender to the courtroom deputy the original and two copies of the marked exhibits in tabbed binders.

(C)       Objections.  Not later than 14 days before the trial date, the parties must meet and confer to make a good faith attempt to resolve any objections to the admissibility of any exhibits.  At the commencement of trial, the parties should be prepared to stipulate into evidence all exhibits as to which there were no objections.

(6)        Use of Presentation Equipment.  Not later than 14 days before the trial date, a party must inform the courtroom deputy of any intention to use courtroom equipment to present evidence and illustrative aids.  Counsel are responsible for making arrangements to familiarize themselves with the equipment, to test the compatibility of their presentations with the court’s equipment and software, and to make alternative arrangements for their presentation in the event of incompatibility or system failure.  If the exhibits or illustrative aids are in digital format, the party must provide all other parties with a digital copy, in its native file format, on a CD, DVD, or diskette.

 

(d)       Pretrial Conference.  If the court schedules a pretrial conference, local rules 16.4, 16.6, and 16.7 of the district court apply.

 

LBR 7026-1.     Discovery.

 

(a)        Conference of the Parties.  

(1)        Conference Timing.  The conference of the parties required under Fed. R. Civ. P. 26(f) must be held not later than 14 days before the scheduling conference.

(2)        Discovery Plan.  The parties must make a good faith attempt to agree to a discovery plan at the conference of the parties.  The discovery plan should cover the items listed in Form 52 – Report of the Parties’ Planning Meeting, Fed. R. Civ. P. Appendix of Forms.  The plaintiff is responsible for preparing a report outlining a proposed discovery plan.  In lieu of filing a written report, the parties may report orally on their discovery plan at the scheduling conference.    

 

(b)       Written Responses to Discovery Requests. 

(1)        Discovery requests under Fed. R. Civ. P. 33, 34, and 36 must be in a format providing sufficient space to respond following each request.

(2)        Responses to discovery requests under Fed. R. Civ. P. 33, 34, and 36 shall set forth the interrogatory or request in full before the response.  Each objection shall be followed by a statement of the reasons therefor.

(3)        Whenever a claim of privilege is made in response to any discovery request pursuant to Fed. R. Civ. P. 33, 34, and 36, the materials or information claimed to be privileged must be identified with reasons stated for the particular privilege claimed.  No generalized claim of privilege shall be allowed.

 

(c)        Completion of Discovery.  For the purpose of determining compliance with discovery deadlines, a deposition is completed when the examination of the witness is finished (even if the deposition has not yet been transcribed), and interrogatories, requests for production of documents and things, and requests for admissions are completed when the response thereto is due in accordance with the request and applicable rule.

 

(d)       Discovery Disputes. 

(1)        Motion to Compel Discovery or for Protective Order. 

(A)       Deadline to File.  A motion to compel deposition testimony must be filed not later than 28 days after the later of (i) the scheduled date of the deposition or (ii) the last date on which the deposition was taken.  A motion to compel answers to interrogatories, production of documents or things, or admissions must be filed not later than 28 days after the later of (i) the due date for the response to the discovery request or (ii) the date on which the response was served. 

(B)       Specificity.  Motions regarding discovery disputes must specify the pertinent interrogatories, requests for production, or requests for admissions, and answers or objections.

(2)        Duty to Meet and Confer. 

(A)       Personal Meeting Required.  Counsel for disputing parties must meet and confer with regard to all disputed issues to promote an expedient resolution.  If counsel are all located on the same island in the District of Hawaii, the meet and confer session requires a personal meeting.  If one or more of the parties’ attorneys is located outside this district or on different islands, the meet and confer session may be conducted by telephone or video conference.  Unless the court specifically directs otherwise, the duty to meet and confer may not be satisfied by written correspondence, faxes, or email or text messages. 

(B)       Certificate of Compliance.  Motions to compel discovery or for a protective order must be accompanied by a certificate of compliance with the requirement to meet and confer.

(3)        Attorney Fees and Costs.  The court may award attorney fees and costs as provided in Fed. R. Civ. P. 37.  Unless the court orders otherwise, a motion for attorney fees and costs will be determined without a hearing.

 

LBR 7026-1 Related Form:

Report of the Parties’ Planning Meeting [Civil Form 52]

 
 

 

 

 


LBR 7030-1.     Depositions; Original Transcripts.

 

(a)        Original Document.  Counsel responsible for the preservation and storage of the original transcript, tape, or other means of preservation of any deposition must produce the original transcript, tape, or other means of preservation of such deposition upon request by the court or any party if needed for court proceedings.

 

(b)       Germane Portion.  Only the portion of a deposition that is directly germane to the matter under consideration by the court should be offered as an exhibit in support of a motion, objection, or response thereto.

 

LBR 7054-1.     Adversary Proceedings - Taxation of Costs. 

 

(a)        Entitlement. 

(1)        In General.  If the judgment in an adversary proceeding provides for the allowance of costs, the prevailing party may seek a taxation of costs, other than attorney fees, by filing with the court a proposed bill of costs.  A request to allow attorney fees may be considered under LBR 7054-2.

(2)        Settlement of Adversary Proceeding.  The court will not determine entitlement to or the amount of costs in an adversary proceeding terminated by settlement.  Unless the parties agree otherwise, the parties to a settlement will bear their own costs.

 

(b)       Proposed Bill of Costs.  The prevailing party may request a taxation of costs by filing and serving upon all other parties to the adversary proceeding:

(1)        an itemization of costs in a proposed bill of costs substantially conforming to the procedural form (Bill of Costs [B263]);

(2)        a memorandum setting forth the grounds and authorities supporting the request;

(3)        a declaration that the costs were actually and necessarily incurred, together with copies of any invoices, receipts, or other documents as evidence of the costs;

(4)        a declaration describing the prevailing party’s efforts to resolve any disputes about the claimed costs; and

(5)        a notice of the deadline to file an objection under subdivision (d) of this rule. 

 

(c)        Time for Filing.  Unless the court orders otherwise, a proposed bill of costs together with the supporting documents must be filed and served not later than the time for filing a notice of appeal under Bankruptcy Rule 8002.  The failure to file a timely bill of costs is deemed a waiver of costs.

 

(d)       Objections.  An objection to a bill of costs must be specific and set forth the grounds and authorities for each cost item being disputed.  The objection must be filed within 14 days after the date of filing of the proposed bill of costs.  A timely filed objection will be referred to the court for determination.

 

(e)        Taxation.  Absent a timely objection, the clerk may sign and enter on the docket the bill of costs as proposed by the prevailing party, subject to review under Bankruptcy Rule 7054(b). 

 

LBR 7054-1 Related Form:

Bill of Costs [B263]

 

LBR 7054-2.     Adversary Proceedings - Attorney Fees. 

 

(a)        Entitlement.  If the judgment in an adversary proceeding provides for an award of attorney’s fees, the prevailing party may file a motion in the adversary proceeding for an order awarding attorney’s fees and related non-taxable expenses. 

 

(b)       Applicability of Local Rule 54.3 of the District Court.  Unless the court orders otherwise and to the extent practicable, LR 54.3 – Motion for Attorneys’ Fees and Related Non-Taxable Expenses applies in adversary proceedings, except that:

(1)        the motion and supporting documents must be filed and served on all other parties to the adversary proceeding not later than the time for filing a notice of appeal under Bankruptcy Rule 8002; and

(2)        LBR 9013-1(c) governs the time periods for scheduling a hearing on the motion and filing responses and reply memoranda. 

 

LBR 7055-1.     Default.

 

(a)        Request for Entry of Default.  A party requesting entry of default must support the request with a declaration regarding sufficiency of service of the summons and copy of the complaint.  The declaration must identify the applicable provision authorizing service under Bankruptcy Rule 7004 or Fed. R. Civ. P. 4 and, if served in a place not within any judicial district of the United States, the specific authority for service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents or other method of service.

 

(b)       Judgment for Plaintiff.  Unless the court orders otherwise, a plaintiff entitled to a judgment by default in an adversary proceeding, for a claim other than a sum certain pursuant to Fed. R. Civ. P. 55(b)(2), may obtain a judgment only by written motion and upon establishment of a prima facie case at a hearing, with notice of not less than 28 days to the defendant.  The motion must be served on the defendant and, if represented by counsel, the defendant’s attorney.  Entry of default by the clerk must be made prior to or concurrently with the filing of the motion.

 

LBR 7056-1.     Summary Judgment.

 

(a)        Motion Requirements.  A motion for summary judgment must be accompanied by a supporting memorandum and separate concise statement detailing each material fact as to which the moving party contends that there are no genuine issues to be tried that are essential for the court's determination of the summary judgment motion (not the entire case).

 

(b)       Opposition Requirements.  Any party who opposes the motion must file and serve with the party’s opposing papers a separate document containing a concise statement that:

            (1)        accepts the facts set forth in the moving party's concise statement; or

(2)        sets forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated.

 

(c)        Focus of the Concise Statement.  When preparing the separate concise statement, a party shall reference only the material facts which are absolutely necessary for the court to determine the limited issues presented in the motion for summary judgment (and no others) and each reference shall contain a citation to a particular affidavit, deposition, or other document which supports the party's interpretation of the material fact.  Documents referenced in the concise statement shall not be filed in their entirety.  Instead, the filing party shall extract and highlight only the relevant portions of each referenced document.  Photocopies of extracted pages, with appropriate identification and highlighting, will be adequate.

 

(d)       Limitation.  The concise statement may not exceed 5 pages, unless it contains no more than 1500 words. When a concise statement is submitted pursuant to the foregoing word limitation, the number of words shall be computed in accordance with LR 7.5(d), and the concise statement shall include the certificate provided for in LR 7.5(e).

 

(e)        Concise Statement Format.  A separate concise statement may utilize a single space format for the presentation of the facts and evidentiary support when set out in parallel columns.

 

(f)        Scope of Judicial Review.  When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties.

 

(g)        Admission of Material Facts.  For purposes of a motion for summary judgment, material facts set forth in the moving party's concise statement will be deemed admitted unless controverted by a separate concise statement of the opposing party.

 

(h)       Declarations to be Attached to Concise Statement.  Affidavits or declarations setting forth facts and/or authenticating exhibits, as well as exhibits themselves, shall only be attached to the concise statement.

 

(i)         Deadlines.  A motion for summary judgment must be filed so as to be heard not later than 28 days before the trial date.  Deadlines for filing opposition statements and reply memoranda are governed by LBR 9013-1(c).

 

LBR 7067-1.     Registry Fund.

 

(a)        Order of Deposit.  The clerk will deposit funds into the court registry only upon court order.  A proposed order submitted for signing by a judge must contain the following:

(1)        the name, address, and telephone number of the entity paying the money into the court registry;

            (2)        the name and address of the entity for whom the funds are being held; and

            (3)        the amount of funds being deposited.

 

(b)       Investment.  The clerk shall deposit the funds in an interest-bearing account in accordance with any policies or procedures established by the Judicial Conference of the United States or the Administrative Office of the United States Courts.

 

(c)        Order for Disbursement.  The clerk will pay funds out of the court registry only upon court order.  A proposed order submitted for signing by a judge must contain the following:

            (1)        the name and address of the entity to whom the funds are to be paid; and

(2)        the amount of the funds to be paid, with the provision that the amount shall include any accrued interest, less a fee payable to the court to the extent authorized by the Judicial Conference of the United States.

 

(d)       Taxpayer Information.  The party requesting the order for disbursement must provide to the clerk, in a separate document not to be filed with the court, the Social Security Number or other taxpayer identification number for the entity being paid any interest that has accrued on the deposited funds.

 

LBR 7067-2.     Bonds.

 

(a)        Bond or Security.  The court, on motion or of its own initiative, may order any party to file an original bond or additional security for costs in such an amount and so conditioned as the court by its order may designate.

 

(b)       Qualifications of Surety.  Subject to approval of the court, every bond for costs under this rule must have as surety either:

           

(1)        a cash deposit equal to the amount of the bond; 

(2)        a corporation authorized by the Secretary of the Treasury of the United States, to act as surety on official bonds pursuant to 31 U.S.C. §§ 9301-09;

(3)        a resident of the district, who owns real or personal property within the district sufficient in value above any encumbrances to justify the full amount of the suretyship; or

(4)        any insurance, surety or bonding company licensed to do business in the State of Hawaii.

 

LBR 8001-1.     Notice of Appeal.

 

(a)        Separate Notice Requirement.  A party appealing more than one judgment or order must file a separate notice of appeal for each judgment or order being appealed. 

 

(b)       Fees. 

(1)        Notice of Appeal Fee.  Every notice of appeal or cross appeal must be accompanied by the fee required by 28 U.S.C. § 1930(c), unless the appellant is granted in forma pauperis status or a separate request for a waiver under 28 U.S.C. § 1930(f)(2).

(2)        Filing Fee.  Every notice of appeal or cross appeal must be accompanied by the filing fee prescribed in the Appendix to 28 U.S.C. § 1930 unless the appellant or cross appellant is:

(A)       the United States;

(B)       a child support creditor or its representative, if the form specified in § 304(g) of the Bankruptcy Reform Act of 1994 (Form B281 – Appearance of Child Support Creditor or Representative) is filed with the court;

(C)       filing a contemporaneous motion for leave to appeal, in which case the filing fee will become due only upon entry of an order granting the motion;

(D)       a trustee or debtor in possession and there is no estate from which the fee can be paid;

(E)        a debtor whose fee for filing a chapter 7 petition was waived under 28 U.S.C. § 1930(f)(1) and is granted a separate request for a waiver under 28 U.S.C. § 1930(f)(2); or

(F)        filing a request for in forma pauperis status by submitting an application to proceed without prepaying fees or costs, which will be transmitted to the clerk of the district court for disposition.     

(3)        Fee for Direct Appeal.   If a direct appeal or cross appeal to the court of appeals is authorized, an additional fee prescribed in the Appendix to 28 U.S.C. § 1930  is due upon the filing of a notice of the authorization.

 

LBR 9003-2.     Confidentiality.

 

Court staff, including clerks, law clerks, judicial assistants, and court security officers, may not disclose to any person information related to any case or proceeding that is not part of the public record without specific authorization of a judge.

 

LBR 9003-5.     Gratuities.

 

No person may directly or indirectly give or offer to give, nor may any judge, employee, trustee, or anyone appointed by the court or by any judge for any purpose accept on such individual’s behalf or on behalf of the court any gift or gratuity, regardless of value, directly or indirectly related to services performed by or for the court.

 

LBR 9004-1.     Papers – Requirements of Form.

 

(a)        Paper Documents.  All paper documents submitted for filing must meet the following requirements.

(1)        Paper quality.  The document must be on white paper of a quality acceptable to the clerk for scanning and storing the document as an electronic image.

(2)        Dimensions.  Documents exceeding 8.5 by 11 inches in size may be rejected by the clerk; documents exceeding these dimensions must be reduced by the filing party prior to submission to the court.

(3)        Fasteners.  Documents should not be fastened using staples, paper clips, prongs, covers, or any blue backing; binder clips are preferred to allow proper scanning.

(4)        Tabs.  Documents may not include tabs; exhibits should be separated using a separate page with the identification of the exhibit number or letter printed on the page.

(5)        One-sided.  Documents that are double-sided must be copied by the filing party to make one-sided pages prior to submission to the clerk.  

 

(b)       Formatting.  Except for exhibits and court-approved forms, all documents for filing must meet the following requirements.

(1)        Font style.  All fonts in the document’s text, including footnotes, must be in a plain, Roman style (except that italics and boldface may be used for emphasis) and be either:

(A)       a proportionally spaced face that is 14-point or larger and that includes serifs (e.g., 14-point Times New Roman, CG Times, Charter BT, or Georgia), except that sans-serif type (e.g., 14-point Arial, CG Omega, or Univers) may be used in headings and captions, or

(B)       a monospaced face that contains not more than 10½ characters per inch (e.g., 12-point Courier or Courier New).  

(2)        Line Spacing.  The text of the document must be double-spaced, except for quotations, footnotes, and exhibits.

            (3)        Margins.  Margins must be 1 inch from the edge of the document.

 

LBR 9006-1.     Time Periods.

 

(a)        State Holidays Used in Computing Time Periods.  The state holidays used in computing time periods under Bankruptcy Rule 9006(a)(6)(C) include:

            (1)        the twenty-sixth day in March, Prince Jonah Kuhio Kalanianaole Day;

            (2)        the Friday preceding Easter Sunday, Good Friday;

            (3)        the eleventh day in June, King Kamehameha Day;

            (4)        the third Friday in August, Statehood Day; and

(5)        any day designated by proclamation by the governor of the State of Hawaii as a holiday.

 

(b)       Enlarging or Shortening Time. 

(1)        In General.  Unless prohibited by statute or by federal rule, the court may enlarge or shorten the time to perform any act or to file any paper on its own motion or the motion of a party.

(2)        Hearings.  A party may seek to shorten the time to give notice of a hearing by filing an ex parte motion substantially conforming to the local form (Motion to Enlarge or Shorten Time [hib_9006-1]) and must include the following information:

(A)       A declaration explaining the reason(s) why the time should be reduced, and describing the parties with whom the moving party has communicated or has attempted to communicate concerning the request, and any positions taken by such parties;

(B)       Proposed deadlines to file and to serve any responsive and reply memoranda; and

(C)       A statement specifying to whom, how, and when the moving party proposes to give notice of the hearing and associated deadlines.

 

LBR 9006-1 Related Local Form:

Motion to Enlarge or Shorten Time [hib_9006-1]

 


 

LBR 9009-1.     Forms.

 

The clerk may issue local forms for use under the Bankruptcy Code, Federal Rules of Bankruptcy Procedure, and the Local Bankruptcy Rules.  References in these rules to use of a form substantially conforming to a prescribed local form means that the filer must provide the information requested in the local form.

 

LBR 9011-1.     Attorneys – Duties.

 

(a)        Representation in a Bankruptcy Case.  Notwithstanding any employment, retainer, or attorney-client agreement, an attorney who files a bankruptcy petition in bankruptcy on behalf of a debtor, or who subsequently enters an appearance on behalf of a debtor other than as special counsel under § 327(e), will be counsel of record and must provide representation in all matters arising during the administration of the case until the case is closed or dismissed, unless the court approves the attorney’s withdrawal or substitution.

 

(b)       Representation in an Adversary Proceeding.  An attorney representing a debtor in a bankruptcy case may, by agreement with the debtor, exclude representation of the debtor in an adversary proceeding by indicating such non-representation in the attorney’s compensation disclosure statement required under Bankruptcy Rule 2016(b).  If an attorney will not be representing the debtor in an adversary proceeding, the attorney must file and serve on the other parties a notice of non-representation.

 

LBR 9011-2.     Pro Se Parties.

 

Individuals may appear pro se, under such conditions as the court may impose, must notify the clerk in writing of their names, their mailing and residence addresses, and their telephone numbers, and must keep the clerk and opposing parties and counsel informed by proper written notice of changes in the addresses or telephone numbers or both.

 

LBR 9013-1.     Motion Practice.

 

(a)        In General. 

(1)        Applicability.  For purposes of this rule, a motion is a written request for an order, whether denominated as a motion, application, objection, notice, or otherwise.  This rule applies to any motion unless another local rule or court-issued form specifically provides for a different procedure.

(2)        Moving Party’s Burden.  The motion must state the legal basis for the relief requested and must include admissible evidence to support the factual basis of the motion.

 


 

(b)       Ex Parte Motions. 

(1)        An ex parte motion is a motion presented to the court with no notice to any other party and which the court may consider without a hearing.

(2)        The court will grant an ex parte motion only if applicable statutes and rules permit the court to dispense with notice and hearing, and (i) the relief requested will have no material adverse effect on the rights of any other party or (ii) an emergency situation, not created by the moving party’s own acts or omissions, makes it impossible to give notice without inflicting irreparable harm on the moving party.

(3)        In addition to satisfying the requirements applicable to any motion, an ex parte motion must (i) state the legal basis and include admissible evidence of the facts which the moving party contends permit the court to act without notice or hearing, (ii) establish that the requirements of subdivision (b)(2) of this rule are satisfied, (iii) state specific reasons why the court should proceed without notice or hearing, and (iv) describe any efforts made to confer with the party or parties affected by the motion and whether or not any of them oppose the motion.

(4)        Examples of motions properly brought on an ex parte basis include (i) a motion to approve the retention or professionals where the Office of the U.S. Trustee does not object to the retention, (ii) a motion to reopen a case, (iii) a motion to shorten time for notice or hearing or to limit notice, and (iv) a motion for an extension of time to file a response or reply.

 

(c)        Motions that Must Be Set for Hearing. 

(1)        Unless the court directs otherwise by way of a local rule, order, or court-issued form, a party filing a motion must obtain a hearing date from the courtroom deputy and give notice to all parties entitled to notice not later than 28 days before the hearing.  The notice must substantially conform to the local form (Notice of Hearing [hib_9073-1]).

(2)        All responses to the motion must be filed and served on the moving party not less than 14 days before the hearing date.  The moving party is not required to file a reply but may do so not less than 7 days before the hearing date.  No surreply or further briefing is permitted without leave of court.  The court may disregard any untimely or impermissible memorandum or impose other appropriate sanctions.

(3)        If no one files a timely response to the motion, the moving party may file a declaration substantially conforming to the local form (Declaration and Request for Entry of Order [hib_9021-1]) and submit a proposed order granting the motion.  The court may either cancel the hearing and enter the order or direct that the hearing be held.  The moving party may request that a matter remain on calendar even if no objection is filed by filing such a request not later than the deadline for filing a response to the motion.

(4)        The court generally will not cancel the hearing on:

            (A)       dispositive motions in adversary proceedings;

            (B)       motions governed by Bankruptcy Rule 4001(b) or (c);

(C)       motions to convert or dismiss, except for motions by a debtor and motions by the Office of the United States Trustee under § 1112(e); and

(D)       motions in chapter 11 cases, including motions to appoint a trustee or examiner, approval of disclosure statements, and confirmation of plans, but not including motions seeking purely procedural relief or approval of stipulations.

 

(d)       Countermotions

(1)        In General.  A respondent may file, together with the response to the motion, a countermotion raising only the same specific issues, claims, or defenses presented in the original motion.  The countermotion may be scheduled and noticed for hearing on the same date as the original motion only by obtaining the approval of the courtroom deputy.

(2)        Response to Countermotion.  A party’s response to a countermotion may be included with that party’s reply memorandum in support of the original motion.

(3)        Reply Memorandum in Support of Countermotion.  The party filing the countermotion may file a reply memorandum in support of the countermotion not later than 3 days before the hearing.

(4)        Limitations on Memoranda.  Memoranda including countermotions and combined with a reply to another motion are subject to the limitations stated in LBR 9013-2.

(5)        Objection to Countermotion’s Subject Matter.  The moving party may file an ex parte objection to the court’s consideration of any issue, claim, or defense being raised in a countermotion which was not the subject of the original motion.  The court may dispose of the objection by overruling the objection, continuing the hearing on the motion and countermotion, or scheduling the countermotion’s offending subject matter for a separate hearing.

 

(e)        Joinder.  A party filing a joinder, rather than an independent motion, cross motion, or countermotion, is not entitled to an order granting the relief requested in the motion in favor of the joining party unless:

            (1)        no filing fee is associated with the underlying motion;

(2)        the joinder would have been timely if it had been filed as an independent motion; and

(3)        any party against whom relief is sought receives the same quality of notice, has the same opportunity to object, and suffers no other burden or prejudice by virtue of the fact that the joining party filed a joinder rather than an independent motion.

 

(f)        Enlarging or Shortening Time.  The time periods specified under this rule may be enlarged or shortened pursuant to LBR 9006(b). 

 

LBR 9013-1 Related Local Forms:

Notice of Hearing [hib_9073-1]

Declaration and Request for Entry of Order [hib_9021-1]

 
 

 

 

 

 


LBR 9013-2.     Briefs and Memoranda of Law.

 

(a)        Length of Briefs and Memoranda. 

(1)        Supporting or Responsive Brief.  A supporting or responsive brief or memorandum, as the terms are defined in LBR 9013-1, may not exceed 30 pages in length unless the filing party certifies that:

            (A)       it contains no more than 9,000 words, or

            (B)       it contains no more than 750 lines of text using a monospaced font style.

(2)        Reply Brief.  A reply brief or memorandum may not exceed 15 pages in length unless the filing party certifies that:

                  (A)       it contains no more than 4,500 words, or

                  (B)       it contains no more than 375 lines of text using a monospaced font style.

(3)        Word and Line Limits.  Headings, footnotes, and quotations count toward the word and line limits.  The case caption, table of contents, table of authorities, exhibits, declarations, and certificates of counsel do not count toward the page, word, or line limits.

(4)        Certificate of Compliance.  A brief or memorandum submitted under the word and line limits permitted by this rule must include a certificate by the filing party that the document complies with the applicable word or line limits.  The person preparing the certificate may rely on the word or line count of the word-processing system used to produce the document.   The certificate must state either the number of words in the document or the number of lines of monospaced type in the document.  

 

(b)       Table of Contents.  Briefs and memoranda exceeding 15 pages must include a table of contents and a table of authorities cited.

 

(c)        Affidavits and Declarations.  Factual allegations made in support of or in response to any motion must be supported by affidavits or declarations.  Affidavits and declarations may contain only facts, must conform to the requirements of Fed.  R.  Civ. P. 56(e) and 28 U.S.C. § 1746, and must avoid conclusions and argument.  Any statement made upon information or belief must specify the basis therefor.  The court may disregard affidavits and declarations not in compliance with this rule.

 

(d)       Uncited Authorities.  A party who intends to rely at a hearing upon authorities not included in the brief or memorandum of law must provide to the court and opposing counsel copies of the authorities at the earliest possible time prior to the hearing.

 

LBR 9013-3.     Certificate of Service.

 

(a)        Required Information.  Unless the court directs otherwise, a certificate of service of a document must identify:          

(1)        the document(s) served;

            (2)        the date that service was made;

            (3)        the name of the person served and the person’s:

                        (A)       mailing or street address if served by mail or hand delivery;

                        (B)       email address if served electronically; or

                        (C)       fax number if served by fax transmission;

            (4)        the name of the client if service was made on a party’s attorney; and

(5)        the method of service (personal, hand delivery, first class mail, the court’s electronic transmission facilities, or other delivery method consented to in writing).

 

(b)       Written Consent to Electronic Service.  If service is made by electronic means or by fax transmission, the certificate of service must include a statement that the party being served has consented in writing to the particular method of service.

 

(c)        Service Via CM/ECF.  If service is made using the court’s electronic transmission facilities, the party filing the certificate of service may rely on the court’s CM/ECF notice of electronic filing (“NEF”) to indicate that service was made.  The NEF is not a substitute for a certificate of service but a copy of the NEF may be attached as an exhibit to list the names and email addresses of parties served electronically.

 

(d)       Separate Docket Entry.  A party filing a certificate of service for pleadings in contested matters and adversary proceedings must file it as a separate docket entry or clearly identify it in the docket entry as an attachment.

 

LBR 9013-3 Related Local Form:

Certificate of Service [hib_9013-3]

 

LBR 9013-5.     Amended Pleadings.

 

Any party filing or moving to file an amended pleading must reproduce the entire pleading as amended and may not incorporate any part of a prior pleading by reference, except with leave of court.

LBR 9014-1.     Contested Matters – Applicability of Rules.

Unless the court directs otherwise, the following local bankruptcy rules for adversary proceedings apply to contested matters in bankruptcy cases:  7030-1, 7067-1, and 7067-2.


 

LBR 9014-2.     Contested Matters – Attendance of Witnesses.

No Testimony at Initial Hearing.  Unless the court orders otherwise, the court will not hear testimony at the initial hearing in a contested matter.  The court may decide matters of law at the initial hearing.  If there is a genuine issue of material fact in a contested matter, the initial hearing will serve as a scheduling conference for setting an evidentiary hearing, at which the court will hear testimony.   The court may dispense with the initial hearing and proceed directly to an evidentiary hearing.  The court may do so on its own motion, pursuant to a stipulation of all parties to the contested matter, or upon motion of any party to the contested matter (with such notice to the parties as the court deems appropriate).

LBR 9016-2.     Witnesses – Alternate Direct Testimony.

(a)        Applicability.  The court may direct that the alternate direct testimony procedures under this rule be used in any trial or evidentiary hearing.  The failure of any party to object to the use of alternate direct testimony within 14 days after the entry of an order directing its use shall be deemed to be consent to its use.

(b)       Testimony by Declaration.  Except for hostile or adverse witnesses, each witness to be called on behalf of a party must provide a succinct written declaration, executed under penalty of perjury, of the direct testimony which that witness would be prepared to give in live testimony.  Each statement of fact or opinion in the declaration must be separate, sequentially numbered, and contain only matters that are admissible under the Federal Rules of Evidence.

(c)        Submission of Testimony Declarations.  Unless the court orders otherwise, copies of all direct testimony declarations by witnesses and exhibits to be presented at trial must be provided to opposing counsel not later than 21 days before the trial date.  

(d)       Objections to Testimony Declarations.  An objection to a testimony declaration may be filed not later than 7 days before the trial date.   

(e)        Live Testimony.  All cross-examination, rebuttal, surrebuttal, and appropriate impeachment evidence shall be given by live testimony.  The court may also permit live testimony in direct examination as appropriate.

LBR 9018-1.     Sealing and Redaction of Documents.

(a)        Scope of Rule.  This rule governs the filing of documents considered to be secret, confidential, scandalous, or defamatory under Fed. R. Bankr. P. 9018, which are not subject to the provisions for protection of personal identifiers of Fed. R. Bankr. P. 9037.  This rule addresses situations where the subject information to be sealed is required by a statute, rule, or Official Form or will be made available to the judge but inaccessible on the public record.  This rule may be supplemented by requirements contained in specific procedures issued by the clerk and posted at the court’s website.

 

  (b)     Motion Required.  No document may be sealed without court approval.  A stipulation or blanket protective order that allows a party to designate matters to be filed under seal will not suffice to allow filing a document or other matter under seal.  A motion to seal must describe the item to be sealed, as well as specify the applicable standard for sealing the information and discuss how that standard is met.  The motion itself should not contain or attach any confidential information.  Any document containing confidential information proposed to be sealed must be a separately captioned document to be the subject of a separate entry on the docket. 

(c)        Objection.  No later than 7 days after the filing of a motion to seal, any party who contends that any information is not entitled to confidential treatment may file an objection. 

(d)       Denial of Motion.  If the motion to seal is denied, the clerk will destroy or return to the moving party any paper document asserted to be confidential.  If already filed electronically by the moving party, the subject document will remain on the docket but restricted from public access and the information will not be considered by the court.  

(e)        Filing of Redacted Version of Sealed Document.  Every document approved for the sealing of certain information must have a corresponding redacted version filed on the docket.  If an entire document is approved for sealing, a cover sheet with case caption and title of document must be filed on the docket.  

(f)        Submission of Documents to be Sealed.  Unless the court orders otherwise, documents approved for sealing will be electronically filed and their images stored in the CM/ECF system, with access to the sealed documents limited to court staff. 

 

(g)        Unsealing.  For good cause, the court may order the unsealing of a document at any time.

LBR 9019-1.     Settlements.

(a)        When Motion Required.  Except as provided in subdivision (b), a party may seek court approval of a settlement or stipulation by filing and serving on all creditors a motion pursuant to LBR 9013-1(c).  If the motion concerns settlement of an adversary proceeding, the motion and notice must be entered on the docket in the bankruptcy case.

(b)       Stipulations.

(1)        Procedural and Other Matters.  A party may seek approval of a stipulation regarding procedures, deadlines, discovery, and other similar matters by submitting an order pursuant to LBR 9072-1(i), without filing a motion.

            (2)        Stipulated Judgments and Dismissals in Adversary Proceedings.

(A)       In General.  A stipulated judgment or dismissal regarding the dischargeability of a particular debt under § 523, or other claims in an adversary proceeding which do not affect the estate,  may be submitted for approval by the court with notice limited to parties to the adversary proceeding. 

(B)       Stipulated Judgment Dismissing Objection to Discharge.  Notice of a stipulated judgment which includes dismissal of an objection to the debtor’s discharge under § 727 must be given to the trustee and the United States trustee and entered on the docket in the bankruptcy case.

 

LBR 9019-2.     Alternative Dispute Resolution.

(a)        Purpose and Scope.   To facilitate the voluntary resolution of adversary proceedings and contested matters, the court may establish a Bankruptcy Alternative Dispute Resolution (“BDR”) program.  This rule does not preclude parties from participating in any other alternative dispute resolution (“ADR”) program.

(b)       Duty to Consider BDR.  Parties to adversary proceedings and contested matters have a duty to consider BDR and other ADR processes to resolve their dispute.

(c)        Program Administration.

(1)        Bankruptcy Mediation Committee.  The court may establish a Bankruptcy Mediation Committee (“Committee”) to make recommendations for administration of a BDR program and procedures for the selection, training and evaluation of individuals to serve on a Mediator Panel.

(2)        BDR Administrator.   The court may appoint a BDR Administrator to administer the BDR program.  The responsibilities of the BDR Administrator include:

(A)       acting as primary liaison between the court and the Committee on matters of policy, program design and evaluation, education, training and administration;

(B)       educating litigants, lawyers, judges and court staff about the BDR program and procedures;

(C)       ensuring that appropriate systems are maintained for recruiting, screening and training mediators; and

(D)       maintaining records for evaluating the BDR program.

(3)        Bankruptcy Mediator Panel.   The court shall publish and maintain a list of qualified individuals approved by the court to serve as members of a Bankruptcy Mediator Panel (“Panel”). 

(A)       Application to Serve on Panel.  An individual wishing to serve on the Panel shall be may apply by submitting to the court an application substantially conforming to the local form (Application for Appointment to Bankruptcy Mediator Panel [hib_9019-2c]).  The court may request a recommendation by the Committee.

(B)       Qualifications.  To qualify for service on the Panel, an applicant must be willing to serve as a mediator for one 4-hour BDR conference per calendar quarter, subject only to unavailability due to conflicts, personal or professional commitments, or other matters which would make such service burdensome.  An applicant who is an attorney must certify that the applicant is and has been a member in good standing of the bar of any state or the District of Columbia for at least 5 years and is a member in good standing of the bar of the United States District Court for the District of Hawaii.  A non-attorney applicant must submit a statement of professional qualifications, experience, training and other information demonstrating why, in the applicant’s opinion, the applicant is qualified to serve as a mediator.

(C)       Training.  A Panel member may be required to complete court-approved training prior to serving in any mediation under this program.

(D)       Compensation.  No fees may be charged for telephonic conferences and preparation time prior to the first BDR conference, and for the first 4 hours of BDR conference time.  If the matter is not resolved after the first 4 hours of conference time, the mediator is authorized to request compensation at the mediator’s regular hourly rate.  If there is no agreement as to compensation of the mediator and if compensation is not waived by the mediator, the BDR process will be deemed concluded. If a debtor in possession or trustee, on behalf of the bankruptcy estate, and not individually, is a party, compensation of the mediator is subject to §§ 327 and 330.

(E)        Immunity of Mediators.  All persons serving as mediators under this rule shall be deemed to be performing quasi-judicial functions and shall be entitled to all of the privileges, immunities and protections that the applicable law accords to persons serving in such capacity.

 

(d)       Assignment to BDR and Appointment of Mediator. 

(1)        Request for BDR.  Parties may request the  assignment of a dispute to the BDR program by filing with the court a request substantially conforming to the local form (Request for Assignment to BDR Program [hib_9019-2d]).  The request must be signed by all parties to the disputed matter.  The request should include the names, addresses, telephone and fax numbers and email addresses of all counsel representing parties and any pro se party.  The parties may indicate a preference for appointment of a particular mediator.

(2)        Conflict Check.  Upon the filing of a request for assignment to BDR, the court may contact Panel members to conduct a check for possible conflicts and scheduling availability.  A Panel member contacted by the court for service as a mediator must promptly make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable person would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party or foreseeable participant in the mediation. 

(3)        Order of Assignment.  Upon selection of a mediator, the court will enter an order assigning the dispute to the BDR program and appointing the mediator.  The order may provide for a stay of discovery or the extension of certain deadlines, but any trial or hearing on a dispositive motion will remain on calendar.  A party who objects to an individual’s appointment as mediator based on a possible conflict of interest or appearance of impropriety should promptly bring the matter to the attention of the mediator and the BDR Administrator. 

(4)        Authority of Mediator.  Upon assignment to the BDR program, all procedures within the mediation including, but not limited to, deadlines and the form and content of any submissions, will be determined by the mediator.  However, nothing in these guidelines reduces the bankruptcy judge’s power and responsibility to maintain overall management control of the case or proceeding before, during, and after the assignment of a matter to the BDR program.

 

(e)        BDR Conference.

(1)        Initial Telephone Conference.  As soon as  practicable after notification of appointment, the mediator will conduct an initial telephone conference with the parties to obtain preliminary information as to the nature of the disputed matter, the expectations of the parties, a mutually agreeable time and place for a formal BDR conference, and any further information which will facilitate BDR.

(2)        BDR Conference.  As soon as is practicable after the initial telephone conference, the mediator will give notice to the parties of the time and place of the BDR conference. During regular court hours, the court’s facilities may be used if available.

(3)        BDR Statement.  Unless modified by the mediator, not later than 14 days after the date of the order assigning the matter to the BDR program, each party must submit directly to the mediator and serve on all other parties, a written BDR statement.   A BDR statement may not be filed with the court and the court shall not have access to them.  Such statement may not exceed 15 pages, not including any exhibits and attachments.  The BDR statement may include any pertinent information, but must:

(A)       Identify the person, in addition to counsel, who will attend the conference as representative of the party, and who must have decision making authority;

(B)       Describe briefly the substance of the dispute;

(C)       Address whether there are legal or factual issues whose early resolution might appreciably reduce the scope of the dispute or contribute significantly to settlement;

(D)       Identify and describe the status of any related litigation, past or present, in any state or federal court;

(E)        Identify the discovery that could contribute most to equipping the parties for meaningful discussions;

(F)        Set forth the history of past settlement discussions, including disclosure of prior and any presently outstanding offers and demands;

(G)       Make an estimate of the cost and time to be expended for further discovery, pretrial motions, expert witnesses and trial;

(H)       Indicate presently scheduled dates for further status conferences, pretrial conferences, trial or otherwise; and

(I)         Attach any documents out of which the dispute has arisen, or those which would materially advance the purposes of BDR.

(4)        Ex Parte Statement to Mediator Only.  By agreement of the parties and with consent of the mediator, each party may submit directly to the mediator, for the mediator’s eyes only, a separate written statement describing any additional interests, considerations or matters that the party would like the mediator to understand before the BDR conference begins.  Such ex parte statements to the mediator may not be filed with the court and the court shall not have access to them.

(5)        Attendance at BDR Conference.  Lead counsel and clients, or client’s representatives with full settlement authority, shall attend, in person, all BDR conferences scheduled by the mediator, unless excused by the mediator. A governmental entity satisfies the  attendance requirement if its lead counsel is in attendance and has been delegated full settlement authority, or has reasonable access to the person who has full settlement authority. In the event that the mediator determines it appropriate, the mediator shall have reasonable access to the person who has full settlement authority with appropriate accommodation given to the person’s competing public duties.  Unexcused failure to attend the BDR conference shall be reported to the court and may result in sanctions.

(6)        Conduct of BDR Conference.  The BDR conference shall proceed informally.  Rules of evidence shall not apply.  There shall be no formal examination or cross-examination of witnesses.  As appropriate, the mediator may:

(A)       Permit each party, through counsel or otherwise, to make an oral presentation of the party’s position;

(B)       Help the parties to identify areas of agreement and, where feasible, formulate stipulations;

(C)       Assess the relative strengths and weaknesses of the parties’ contentions and evidence, and explain as carefully as possible the reasoning of the mediator that supports these assessments;

(D)       Assist the parties in settling the dispute, including meeting with the parties separately and privately;

(E)        Estimate, where feasible, the likelihood of liability and the dollar range of damages;

(F)        Help the parties devise a plan for sharing important information or conducting key discovery that will equip them as expeditiously as possible to participate in meaningful settlement discussions or to posture the case for disposition by other means; and

(G)       Determine whether some follow-up to the BDR conference would contribute to the settlement or other disposition.

 

(f)        Conclusion of Mediation.

(1)        Mediator’s Report Upon Completion.  Within 7 days after the completion of the BDR conference, the mediator shall file and serve a Mediator Report substantially conforming to the local form (Mediator Report [hib_9019-2f]).  The report should state that BDR has been concluded and describe whether

(A)       the parties reached a resolution of their diffe