Local Rule 9013-1: MOTION PRACTICE — Bankr. E.D. Tenn.

RULE 9013-1. MOTION PRACTICE

(a) Scope of Rule. As used in this rule, the word "motion" includes any motion, application, objection to claim or claim supplement, objection to a claim of exemption, or other request for an order in a bankruptcy case. Specifically excluded from the scope of this rule are motions in adversary proceedings, which are governed by E.D. Tenn. LBR 7007-1, and motions by Chapter 13 debtors to modify confirmed plans, which are governed by E.D. Tenn. LBR 3015-2(a).

(b) Form and Content of Motions. All motions (except those made orally during a hearing or trial) must— (1) be in writing and filed with the clerk of court; (2) be titled, for example, "Motion [or Application] of [Movant's Name] for [Relief Requested]" or "Objection by [Objecting Party] to Claim of [Name of Claimant and Claim Number]" or "Objection by [Objecting Party] to Claim of Exemption"; (3) state with particularity the grounds for the motion; and (4) request specific relief.

(c) Proposed Orders. Except as hereafter provided, every motion must be accompanied by a proposed order, which must be served with the motion, granting the requested relief and approved for entry by the movant. A movant's failure to submit a proposed order with the motion may result in the entry of an order denying the motion without prejudice. No proposed order need accompany a notice of abandonment filed pursuant to Fed. R. Bankr. P. 6007(a) or a notice of a proposed use, sale, or lease of property pursuant to Fed. R. Bankr. P. 6004(a), unless the noticing party desires entry of an order approving the proposed action.

(d) Service of Motions.

(1) Requirement. Except as provided in subdivision (g)(3) of this rule, every motion must contain a certificate in accordance with E.D. Tenn. LBR 9013-3, evidencing that the movant has served the motion, proposed order and, if applicable, the Notice of Hearing, on the requisite parties in interest.

(2) Fee Applications. Applications for payment of professional fees or for administrative expenses need not be served on all creditors. Rather, a summary of the application identifying the applicant and the amount requested may be incorporated into the Notice of Hearing or into a separate notice which includes the passive notice legend. If a separate notice of the hearing or passive notice deadline is given, a hearing notice or passive notice legend need not be included in the application itself so long as it is included in the separate notice.

(3) Expedited Hearings. If a motion is authorized by court order to be heard on less than 7 days' notice, the motion must (in addition to methods prescribed by the Bankruptcy Rules) be sent by a method effecting immediate receipt, such as by email or telephone facsimile. Proof of compliance with the notice requirements of this subdivision must be filed at or prior to the hearing on the motion. The court will determine at the hearing whether the notice and opportunity for hearing were appropriate in the particular circumstances.

(e) Withdrawal of Motions. A movant who does not intend to pursue a motion must immediately file a withdrawal and, if a hearing on the motion is scheduled to be held within 24 hours of the filing of the withdrawal, immediately notify the courtroom deputy and all previously noticed parties.

(f) Hearing on Motions.

(1) Requirement. Except as permitted by subdivisions (g), (h), and (i) of this rule, every motion must be set for hearing by the movant. The movant must give notice of the hearing, either by a legend prominently displayed on the first page of the motion immediately below the caption or by a separate Notice of Hearing form. If the movant uses a separate Notice of Hearing form and it is filed as a separate docket entry, the notice must be appended with or accompanied by a certificate of service complying with E.D. Tenn. LBR 9013-3. The legend or Notice of Hearing must be in the following form:

NOTICE OF HEARING Notice is hereby given that:

A hearing will be held on the [title of motion, application, or objection] on [date] , at [time] , in [identify courtroom] , located at [name and address of courthouse] .

Your rights may be affected. [If the matter is an objection to claim or supplement to claim, replace the foregoing statement with the following: Your claim may be reduced, modified, or eliminated.] You should read these papers carefully and discuss them with your attorney, if you have one in this bankruptcy case. If you do not have an attorney, you may wish to consult one.

If you do not want the court to grant the relief requested, you or your attorney must attend this hearing. If you do not attend the hearing, the court may decide that you do not oppose the relief sought in the [motion, application, or objection] and may enter an order granting that relief.

(2) Scheduling. Absent permission from the court, the hearing date chosen by the movant must be— (i) one of the court's scheduled motion days, at the time that the court has set for hearings in connection with cases under that chapter of the Bankruptcy Code, which dates and times are available from the clerk of court or on the court's website, www.tneb.uscourts.gov; and (ii) at least 21 but no more than 40 days after service of the notice and motion except the— (A) hearing on an objection to claim or supplement to claim (notice of mortgage payment change or notice of postpetition mortgage fees, expenses, and charges) must be at least 30 but not more than 50 days after service; (B) hearing on a motion for relief from the automatic stay or for adequate protection in a Chapter 7 case must be at least 14 days after service; and (C) hearing on a motion to continue or impose the stay under 11 U.S.C. § 362(c)(3)(B) or (4)(B) pursuant to E.D. Tenn. LBR 4001-5 must be at least 7 days after service.

(3) Waiver. In the event the movant does not schedule a hearing on a motion for relief from stay for a date that is within 30 days after the filing of the motion or consents to the continuance of a hearing on a motion for relief from the automatic stay, the movant is deemed to waive the 30-day termination provision of 11 U.S.C. § 362(e)(1).

(4) Required Hearing Attendance. Unless excused by the court, the movant and any objecting party are required to appear at all scheduled hearings. On the unexcused absence of a movant or an objecting party at the scheduled hearing, the court may conclude that the absent party no longer desires to pursue its motion or objection and summarily deny the motion or overrule the objection. Similarly, the court may deem the failure of any other noticed party to attend the scheduled hearing as a lack of opposition to the granting of the relief requested in the motion.

(g) Ex Parte Motions.

(1) Type of Motions. Unless otherwise provided by these rules, the court may grant without a hearing on an ex parte basis a(n)— (i) application by a debtor to pay the filing fee in installments or to waive the filing fee as permitted by Fed. R. Bankr. P. 1006(b) or (c), or a motion to refund an overpayment of a filing fee under E.D. Tenn. LBR 5080-2; (ii) motion by a debtor for an extension pursuant to 11 U.S.C. § 109(h)(3)(B); (iii) motion by a debtor under Fed. R. Bankr. P. 4004(c)(2) to defer entry of the discharge order; (iv) motion under Fed. R. Bankr. P. 4008(a) and E.D. Tenn. LBR 4008-1 to enlarge the time for filing a reaffirmation agreement; (v) motion by a debtor to convert (or notice of conversion) pursuant to 11 U.S.C. §§ 1112(a), 1208(a) or 1307(a); (vi) motion by a debtor to dismiss a Chapter 13 case that has not been converted under 11 U.S.C. §§ 706, 1112, or 1208; (vii) motion for entry of a wage order; (viii) motion by the Chapter 13 trustee to vacate a wage order; (ix) motion by the Chapter 13 trustee directing the Internal Revenue Service to transmit a refund to the Chapter 13 trustee or to vacate such order; (x) motion to limit notices as provided by Fed. R. Bankr. P. 2002(h) or (i); (xi) motion for pro hac vice appearance; (xii) motion for order extending or shortening time under Fed. R. Bankr. P. 9006(b)(1)(A) or (c)(1) filed in accordance with E.D. Tenn. LBR 9006-1, except a motion to extend time to file a complaint objecting to discharge pursuant to Fed. R. Bankr. P. 4004(b) or to determine the dischargeability of a debt pursuant to Fed. R. Bankr. P. 4007(c); (xiii) motion by a Chapter 7 trustee for entry of an order under 11 U.S.C. § 554(c) or (d) to except from abandonment certain property of the estate; (xiv) motion to redact and/or restrict public access to a previously filed document pursuant to Fed. R. Bankr. P. 9037(h); (xv) motion for a Fed. R. Bankr. P. 2004 examination; (xvi) motion for an emergency hearing; (xvii) motion in which the movant certifies that all affected parties have consented to the requested relief, except for a motion of a type described in subdivision (h)(1)(iv) of this rule; (xviii) motion by the trustee to reopen a Chapter 7 case to administer unscheduled assets; (xix) motion by a party to recover unclaimed funds owed to that party; (xx) motion for preconfirmation payments by the Chapter 13 trustee to a lessor or secured creditor filed in accordance with E.D. Tenn. LBR 3070-1(a), provided the monthly payment does not exceed $50; (xxi) application to employ a professional that does not seek approval of a postpetition retainer or a particular fee arrangement and that does not reveal any actual or potential conflict of interest or any other fact that could preclude retention; (xxii) motion for conditional approval of disclosure statement in a Chapter 11 small business case filed in accordance with E.D. Tenn. LBR 3017.1-1; (xxiii) motion for entry of an agreed order with the trustee abandoning property that is filed in a Chapter 7 no-asset case after the 11 U.S.C. § 341(a) meeting of creditors, as permitted by E.D. Tenn. LBR 6007-1(c); and (xxiv) any other motion that the movant believes is appropriate for ex parte action, provided that the motion expressly requests court consideration without notice or a hearing and states the factual and legal basis for ex parte relief. Notwithstanding the foregoing, the procedure described in this subdivision (g) may not be utilized if a request for one of the types of relief listed above is combined with a request for a type of relief listed in subdivision (h)(1) or a request for relief for which subdivision (f) requires a hearing.

(2) Proposed Order. Except for an application to pay a filing fee by installments, each ex parte motion must be accompanied by a proposed order, approved for entry by the movant as required by subdivision (c) of this rule.

(3) Service. Except for those ex parte motions listed in (i) through (xiii) in paragraph (1) above, a movant utilizing the ex parte procedure must file a certificate evidencing service of the motion and proposed order on all parties affected by the relief sought. For an application to employ listed in (xxi) in paragraph (1) above, the debtor, the debtor's attorney, the panel or standing trustee, and the United States Trustee are parties deemed affected. For a motion for preconfirmation payments listed in (xx) in paragraph (1) above, the debtor, the debtor's attorney, and the Chapter 13 trustee are parties deemed affected.

(4) Reconsideration. Motions to reconsider relief granted by an ex parte order must be filed within 14 days from entry of the order and set for hearing in accordance with subdivision (f) above, except that this provision is not meant to supplant Fed. R. Bankr. P. 9024.

(5) Filing of Certain Motions Excused. The Chapter 13 trustees are excused from filing motions for entry and vacation of wage and tax refund intercept orders under (vii), (viii), and (ix) in paragraph (1) above and may instead tender such proposed orders without accompanying motions.

(h) Passive Notice (Notice and Opportunity for a Hearing) Motions.

(1) Type of Motions. As an alternative to setting and noticing a motion for hearing as required in subdivision (f) of this rule, a movant may follow this passive notice procedure whereby no hearing is set or held unless a party in interest objects to the relief requested in the motion. Unless a hearing is otherwise expressly required by these rules, this passive notice procedure may be used for a(n)— (i) motion in a Chapter 7 case for adequate protection or for relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1) or (2); (ii) motion in a Chapter 13 case for relief from the automatic stay with respect to collateral if the plan provides for surrender of the collateral; (iii) motion for relief from the codebtor stay pursuant to 11 U.S.C. §§ 1201 or 1301; (iv) motion under Fed. R. Bankr. P. 4001(d)(1); (v) notice of the proposed use, sale, or lease of property not in the ordinary course of business under Fed. R. Bankr. P. 6004(a) but not a motion to sell property free and clear of liens or other interests under Fed. R. Bankr. P. 6004(c), which must be set for hearing; (vi) motion to assume, reject, or assign an executory contract or unexpired lease under 11 U.S.C. § 365; (vii) application to employ a professional that seeks the approval of a postpetition retainer or a particular fee arrangement, provided that the certificate evidences service of the application and proposed order on all creditors and parties in interest if the fee exceeds $1,000; (viii) application or request for payment of administrative claims or expenses pursuant to 11 U.S.C. § 503, including fees for professionals; (ix) notice of abandonment or motion to compel abandonment under Fed. R. Bankr. P. 6007; (x) motion to avoid a lien pursuant to 11 U.S.C. § 522(f)(1)(A) or (B); (xi) motion to redeem pursuant to 11 U.S.C. § 722; (xii) motion by a creditor, the trustee, or the United States Trustee to extend time to file a complaint objecting to discharge under Fed. R. Bankr. P. 4004(b) or to determine the dischargeability of a debt under Fed. R. Bankr. P. 4007(c); (xiii) motion for order permitting acts to be done after the expiration of a deadline pursuant to Fed. R. Bankr. P. 9006(b)(1)(B); (xiv) motion to approve a compromise or settlement pursuant to Fed. R. Bankr. P. 9019(a) and motion for leave to dismiss a complaint objecting to discharge, filed in accordance with E.D. Tenn. LBR 9019-1; (xv) objection to claim or supplement to claim (notice of mortgage payment change or notice of postpetition mortgage fees, expenses, and charges) filed in accordance with E.D. Tenn. LBR 3007-1; (xvi) motion in a Chapter 13 case pursuant to Fed. R. Bankr. P. 3002.1(h) for a determination of whether the debtor has cured the default and paid all required postpetition amounts, but only if the holder of the claim has not filed a response within the 21-day period prescribed by Fed. R. Bankr. P. 3002.1(g)(1) or has filed a response indicating that it agrees that the debtor has cured the default and paid all required postpetition amounts; (xvii) motion in a Chapter 13 case pursuant to Fed. R. Bankr. P. 3002.1(e) for a determination of whether payment of any claimed fee, expense, or charge is required by the underlying agreement and applicable nonbankruptcy law to cure a default or maintain payments in accordance with 11 U.S.C. § 1322(b)(5); (xviii) motion for entry of a final decree in a Chapter 11 case or for administrative closure of an individual Chapter 11 case without entry of a final decree in accordance with E.D. Tenn. LBR 3022-1; (xix) motion by a debtor to convert pursuant to 11 U.S.C. § 706(a); (xx) motion by a trustee pursuant to 11 U.S.C. §§ 362(h)(2) or 521(a)(6); (xxi) motion by a debtor to reopen a closed case and for leave to file the domestic support certification required by 11 U.S.C. § 1328(a) or proof of completion of an instructional course in personal financial management under 11 U.S.C. §§ 727(a)(11) or 1328(g); (xxii) motion by a Chapter 13 trustee to modify a confirmed plan to authorize the trustee to (A) adjust the payment to the holder of a claim secured by the debtor's principal residence whenever a notice is filed pursuant to Fed. R. Bankr. P. 3002.1(b)(1) or (B) pay fees, expenses, and charges to the holder of such a claim whenever a notice is filed pursuant to Fed. R. Bankr. P. 3002.1(c), provided that no objection to a notice or a motion to determine fees, expenses, or charges is timely filed by the debtor or trustee; (xxiii) motion to declare a debtor ineligible for discharge pursuant to 11 U.S.C. §§ 727(a)(8) or 1328(f); (xxiv) motion by a Chapter 12 or 13 debtor on plan completion for an order declaring that a secured claim has been satisfied and the lien released under the terms of the plan pursuant to Fed. R. Bankr. P. 5009(d); and (xxv) motion for order confirming that no stay is in effect pursuant to 11 U.S.C. § 362(c)(4)(A)(ii). Notwithstanding the foregoing, the procedure described in this subdivision (h) may not be utilized if a request for one of the types of relief listed above is combined with a request for relief for which subdivision (f) requires a hearing.

(2) Passive Notice Legend. Except as provided in subdivision (d)(2) of this rule, motions filed pursuant to this passive notice procedure must contain a passive notice legend prominently displayed on the first page of the motion immediately below the caption. The passive notice legend must be in the following form:

NOTICE OF OPPORTUNITY TO OBJECT AND FOR HEARING Notice is hereby given that:

Pursuant to E.D. Tenn. LBR 9013-1(h), the court may consider this matter without further notice or hearing unless a party in interest files an objection. If you object to the relief requested in this paper, you must file with the clerk of court at _________[address] , an objection within [number] days from the date this paper was filed and serve a copy on the movant's attorney, [name and address and any other appropriate persons] . If you file and serve an objection within the time permitted, the court will schedule a hearing and you will be notified. If you do not file an objection within the time permitted, the court will consider that you do not oppose the granting of the relief requested in this paper and may grant the relief requested without further notice or hearing.

(3) Objection deadline. The number of days in which parties may object that is placed in the passive notice legend must be 21 days except— (i) objection to a claim or supplement to claim (notice of mortgage payment change or notice of postpetition mortgage fees, expenses, and charges) pursuant to Fed. R. Bankr. P. 3007 or Fed. R. Bankr. P. 3002.1(e), for which the objection time must be at least 30 days; (ii) motion in a Chapter 12 or 13 case for relief from the codebtor stay, for which the objection time is 20 days pursuant to 11 U.S.C. §§ 1201(d) or 1301(d), respectively; (iii) motion in a Chapter 7 case for relief from the automatic stay or for adequate protection, for which the objection time must be at least 14 days; (iv) motion in a Chapter 13 case for relief from the automatic stay with respect to collateral to be surrendered under the plan, for which the objection time must be at least 14 days; (v) motion pursuant to Fed. R. Bankr. P. 4001(d)(1), for which the objection time must be at least 14 days; (vi) notice of abandonment or motion to compel abandonment under Fed. R. Bankr. P. 6007, for which the objection time must be at least 14 days; (vii) application to employ a professional that also seeks the approval and payment in full of the professional's fees not in excess of $1,000 and evidences service of the application and proposed order on the debtor, debtor's attorney, the panel or standing trustee, and the United States Trustee, for which the time for the objection must be at least 7 days; (viii) application or request for payment of administrative claims or expenses pursuant to 11 U.S.C. § 503, including fees for professionals, not exceeding $1,000 and that evidences service of the application and proposed order on the debtor, debtor's attorney, the panel or standing trustee, and the United States Trustee, for which the time for the objection must be at least 7 days; and (ix) motion for order confirming that no stay is in effect pursuant to 11 U.S.C. § 362(c)(4)(A)(ii), for which the objection time must be at least 7 days. Except as otherwise provided in this subdivision, when requests for more than one type of relief with respect to which the passive notice procedure is available are combined into a single motion, the objection period is the longest one applicable to any of the types of relief.

(4) Filing of Objection. In the event a party in interest files an objection within the time permitted in the passive notice legend, the court will schedule a hearing on the matter on notice to the movant, the objecting party or parties, and others as may be appropriate.

(5) No Objection. In the event no party in interest files an objection within the time permitted in the passive notice legend as computed under Fed. R. Bankr. P. 9006(a) and (f), the court may consider the matter in chambers without further notice or hearing.

(6) Court Discretion. Nothing in this rule is intended to preclude the court from setting the matter for hearing even if no objection is filed within the time permitted in the passive notice legend.

(7) Unavailable in Involuntary Case Prior to Entry of Order for Relief. The passive notice procedure may not be utilized in an involuntary case until after relief is ordered against the debtor.

(i) Post-Hearing Motions.

(1) Exception to Hearing Requirement. Post-hearing motions relating to appealable orders entered in contested matters governed by Fed. R. Bankr. P. 9014 are not subject to the hearing requirements of subsection (f) of this rule. Accordingly, unless the court determines that oral argument would be helpful, no hearing will be held on a— (i) motion to amend or make additional findings of fact under Fed. R. Bankr. P. 9014(c) and 7052 (Fed. R. Civ. P. 52(b)); (ii) motion to alter or amend judgment under Fed. R. Bankr. P. 9023(b) (Fed. R. Civ. P. 59(e)); (iii) motion for new trial under Fed. R. Bankr. P. 9023(b) (Fed. R. Civ. P. 59(d)); (iv) motion for relief from judgment or order under Fed. R. Bankr. P. 9024 (Fed. R. Civ. P. 60(b)); and (v) motion for stay pending appeal under Fed. R. Bankr. P. 8007(a).

(2) Briefs and Time for Ruling on Motion. Any motion of the type described in paragraph (1) above must be accompanied by a brief setting forth the facts and the law supporting the motion. Unless the court reduces or extends the time, the opposing party must file a response and a brief in opposition to the motion within 14 days after the date of the filing of the motion. Thereafter, the court will take the matter under advisement and issue a ruling.

(j) Shortening of Notice Periods. The notice periods prescribed by subdivisions (f)(2)(ii) and (h)(3) of this rule may not be shortened except by order of the court on a motion filed in accordance with E.D. Tenn. LBR 9006-1.

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