Local Rule 9013-1: MOTIONS PRACTICE — Bankr. E.D. Va.

RULE 9013-1 MOTIONS PRACTICE

(A) Definition of Motion: For the purposes of this Local Rule, "motion" shall include any motion, application, other request for relief from the Court, or proposed action to be taken under the Bankruptcy Code, Federal Rules of Bankruptcy Procedure, or Local Bankruptcy Rules but shall not include:

(1) any petition commencing a case under the Bankruptcy Code;

(2) any complaint commencing an adversary proceeding under the Federal Rules of Bankruptcy Procedure;

(3) any motion for relief from the automatic stay [see LBR 4001(a)-1];

(4) any proposed order;

(5) objection to claim [see LBR 3007-1]; or

(6) motion for summary judgment [see LBR 7056-1].

(B) Requirement of Written Motion: In all cases or proceedings, all motions shall be in writing unless made during a hearing or trial. If time does not permit the filing of a written motion, the Court may, in its discretion, waive this requirement.

(C) Grounds for, relief sought and whether a hearing has been requested to be stated: All motions, responses, objections, applications (other than for compensation) and similar requests shall state with particularity the grounds therefor and shall set forth the relief or order sought. If a hearing on the motion has been set or requested by the movant, the motion shall so state.

(D) Number of Copies: [Repealed]

(E) Use of Forms: Forms, including motions and interrogatories, may be used only if all inapplicable references have been deleted and the proponent so certifies.

(F) Memorandum of Points and Authorities

(1) Unless the Court directs otherwise and except as noted below, all motions shall be accompanied by a written memorandum setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the movant relies. The memorandum and the motion or response thereto, may be combined in a single pleading.

(2) A memorandum need not accompany a motion or response thereto:

(a) for a more definite statement;

(b) for an extension of time to respond to pleadings, unless the time has already expired;

(d) solely related to discovery matters, except as set forth in LBR 7026-1(C), (D) and (I);

(e) for a continuance;

(f) for dismissal or conversion of a case under chapters 7, 11, 12 or 13 of title 11, United States Code that is (i) voluntary; or (ii) stipulated to by all parties in interest; or

(g) to avoid a lien pursuant to § 522(f).

(G) Responses to Motions

(1) Requirement of written response: Except as otherwise provided by the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, these Local Bankruptcy Rules, or by order of the Court, responses in opposition to motions must be in writing, state with particularity the grounds therefor, be filed with the Court and served upon all parties affected thereby; to the trustee assigned to the case in a case filed under chapter 7, 12, or 13; and to the United States trustee and any appointed trustee in a chapter 11 case.

(2) Requirement of memorandum: Unless otherwise directed by the Court, except as herein above noted, the party filing a response in opposition to a motion shall file therewith a memorandum of points and authorities setting forth a concise statement of the facts and supporting reasons, along with a citation of the authorities upon which the party relies. The memorandum and response thereto may be combined in a single pleading.

(3) Time for filing response and memorandum

(a) The moving party must provide a deadline to file a response or objection, of at least —

(i) 21 days after service of the motion unless the motion relates to a matter for which another notice period is specified under the Federal Rules of Bankruptcy Procedure or these Local Bankruptcy Rules, or the time is shortened or extended by the order of the Court, in which case no later than the period set forth in such rule or order; or

(ii) 1 business day prior to the hearing on the motion if a hearing has been set on an expedited basis under paragraph (N) of this Local Bankruptcy Rule, unless excused, waived or otherwise ordered by the Court. Such response shall be served on all required parties using a method reasonably calculated to provide timely notice to all affected parties.

(b) For good cause, a party may be given additional time or may be required to file a response, memorandum and supporting documents within such shorter period of time as the Court may specify.

(4) Effect of not timely filing a response in opposition with a supporting memorandum: If a response in opposition with a supporting memorandum is not timely filed and served, the Court may deem any opposition waived and treat the request for relief as conceded. For matters that do not require a hearing pursuant to paragraph (H)(1) hereof, within 14 days after the time for filing a response in opposition has expired, the movant shall serve a proposed order in compliance with these Local Bankruptcy Rules and submit such order to the Court for consideration.

(H) Hearings:

(1) No hearing is required (negative notice): The Court maintains a Negative Notice List of matters upon which no hearing is required on the Court's web site at www.vaeb.uscourts.gov. The Negative Notice List may be amended by the Court from time to time.

(a) If a response in opposition is filed with respect to any matter on the Negative Notice List, the movant is required to schedule the matter for hearing in accordance with LBR 9013-1(H)(3).

(b) The moving party may set any matter included on the Negative Notice List for hearing and may remove such hearing from the Court's docket by order or hearing cancellation if no response in opposition is timely filed, provided that the moving party gave notice in accordance with LBR 9013-1(M)(3), informing recipients that the Court may grant the requested relief without holding the scheduled hearing if there is no timely filed response in opposition.

(c) If the Court sets a hearing on a matter on the Negative Notice List, the Clerk will issue a hearing date. The movant must file and serve notice of such hearing within 7 days of issuance of the date. If the movant fails to timely notice the hearing date, the hearing will not be convened, and the movant must file a written request for a new hearing date.

(2) A hearing is required: The following motions require a hearing:

(a) Motions filed by pro se individuals other than applications for payment of unclaimed funds, fee waiver applications, applications to pay filing fee in installments, and first motions to extend time to file lists, schedules, statements, or chapter 12/13 plans within the parameters of these Local Bankruptcy Rules;

(b) Any request for relief on a nunc pro tunc basis;

(3) Scheduling: For motions requiring a hearing under LBR 9013-1(H)(1)(a) or (H)(2)—

(a) The Court will schedule and send notice of hearing on any motion filed by a pro se individual that requires a hearing.

(b) For movants represented by counsel, counsel must notice an appropriate hearing date and time from the assigned Judge's hearing dates web page located on the Court's web site based upon the type of motion and applicable chapter of the bankruptcy case, subject to the following exceptions for which the Court will provide a hearing date:

(i) Hearings in Complex Chapter 11 cases [see LBR Ex. 15];

(ii) Chapter 11 Disclosure Statements;

(iii) Chapter 11 Confirmation Hearings;

(iv) First Day Motions;

(v) Motions for Hardship Discharge;

(vi) Expedited hearings;

(vii) Reaffirmation Agreements requiring Court approval under 11 U.S.C. §§ 524(c)(6) or (m); and

(viii) Hearings on matters not listed in (i) – (vii), above, which the movant has advised the Clerk will require the presentation of evidence or will require longer than 30 minutes to adjudicate.

The movant must file and serve notice of a hearing date issued by the Court within 7 days of issuance. If the movant fails to timely notice the hearing date, the hearing will not be convened, and the movant must file a written request for a new hearing date.

(c) The movant is responsible for selecting a hearing date sufficient to allow the applicable response deadline [see LBR 9013-1(G)(3)] and any additional time required under Federal Rule of Bankruptcy Procedure 9006(f) to elapse prior to the scheduled hearing and to afford any notice of the hearing required under the Federal Rules of Bankruptcy Procedure or these Local Bankruptcy Rules.

(i) A hearing may not be set by a party on less than 14 days' notice unless the Court grants a motion requesting an expedited hearing pursuant to paragraph (N) of this Local Bankruptcy Rule.

(d) If the date, time, and/or location in a notice of hearing is incorrect or does not comply with applicable rules, the hearing on a matter may not appear on the Court docket.

(4) Required Appearances: The following parties must appear at any scheduled hearing, and failure to appear when required will be deemed as consent to an adverse ruling:

(a) Counsel for the movant or the unrepresented moving party;

(b) Counsel for the opposing party or the unrepresented opposing party;

(c) The chapter 13 trustee assigned to the case or counsel for the chapter 13 trustee if the hearing related to a chapter 13 case;

(d) The United States trustee, Assistant United States trustee or counsel for the United States trustee if the hearing relates to a chapter 11 case or a notice of possible dismissal due to a case deficiency in a chapter 7 case; and

(e) Any party required to appear at a scheduled hearing by Court order.

(5) Conference of Counsel: The moving party should make a good faith attempt to coordinate a mutually agreeable hearing date with opposing counsel. Before a hearing on any motion, the moving party shall confer with opposing counsel in a good faith effort to narrow the area of disagreement.

(I) Summary Judgment – Time of Filing: [Repealed]

(J) Continuances: A motion for continuance of a hearing or trial date must be in writing and shall not be granted by mere agreement of counsel. The party requesting a continuance should, however, consult with opposing counsel and the trustee, if applicable, prior to requesting a continuance. The motion for continuance should state the position(s) of opposing counsel and the trustee, if applicable. The motion must include a proposed date and time for the continued hearing from the assigned Judge's hearing dates page on the Court's web site or, in the alternative, the length of the requested continuance. Counsel shall notify the Court of any motion for continuance filed less than one business day prior to the scheduled hearing. The Court may grant a motion for continuance immediately upon filing if parties who have opposed the underlying motion consent or if the Court finds there is other good cause and the exigencies so require.

(K) Motions Practice and Procedures Guidelines: The Court has adopted guidelines supplementing the Local Bankruptcy Rules to facilitate and provide for uniformity pertaining to motions practice and procedures. These guidelines shall be published and updated periodically by the Clerk, as approved by the Court (Exhibit 7 to these Local Bankruptcy Rules) and available from the Clerk upon request or from the Court's internet web site, www.vaeb.uscourts.gov.

(L) Determination of Motions Without Oral Hearing: In accordance with FRCP 78, the Court may rule upon motions without an oral hearing, unless otherwise required by the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, or these Local Bankruptcy Rules.

(M) Giving Notice of a Motion or Hearing

(1) When no hearing is requested or required: The notice of any motion where no hearing is required or requested (i.e., a notice of opportunity for a hearing, where a hearing is set only if a response is filed objecting to the requested relief or requesting a hearing), shall contain language substantially in accordance with Official Form 420A, "NOTICE OF MOTION" and setting forth the requirement of a response under subparagraph (G)(3) of this Local Bankruptcy Rule in substantially the following form, using bold print and capitalized text:

NOTICE UNDER LOCAL BANKRUPTCY RULE 9013-1, UNLESS A WRITTEN RESPONSE IN OPPOSITION TO THIS MOTION AND SUPPORTING MEMORANDUM ARE FILED WITH THE CLERK OF COURT AND SERVED ON THE MOVING PARTY WITHIN 21 [OR APPLICABLE NOTICE PERIOD UNDER THE FEDERAL RULES OF BANKRUPTCY PROCEDURE OR THESE LOCAL BANKRUPTCY RULES] DAYS OF THE SERVICE OF THIS NOTICE, THE COURT MAY DEEM ANY OPPOSITION WAIVED, TREAT THE MOTION [OR APPLICATION OR PROPOSED ACTION] AS CONCEDED AND ISSUE AN ORDER GRANTING THE REQUESTED RELIEF WITHOUT FURTHER NOTICE OR HEARING.

(2) When a hearing is required under LBR 9013-(H)(2): The notice of any motion where a hearing is required under subparagraph (H)(2) of this Local Bankruptcy Rule shall contain language substantially in accordance with Official Form 420A and setting forth the requirement of a response under paragraph (G) in substantially the following form, using bold print and capitalized text:

NOTICE UNDER LOCAL BANKRUPTCY RULE 9013-1, UNLESS A WRITTEN RESPONSE IN OPPOSITION TO THIS MOTION AND SUPPORTING MEMORANDUM ARE FILED WITH THE CLERK OF COURT AND SERVED ON THE MOVING PARTY WITHIN 21 [OR APPLICABLE NOTICE PERIOD UNDER THE FEDERAL RULES OF BANKRUPTCY PROCEDURE OR THESE LOCAL BANKRUPTCY RULES] DAYS OF THE SERVICE OF THIS NOTICE, THE COURT MAY DEEM ANY OPPOSITION WAIVED AND TREAT THE MOTION [OR APPLICATION OR PROPOSED ACTION] AS CONCEDED.

A HEARING TO CONSIDER THE RELIEF REQUESTED IN THIS MOTION IS SCHEDULED FOR [HEARING DATE, TIME, AND LOCATION].

(3) When a hearing on an item on the Negative Notice List is scheduled by the moving party at the time of filing: The notice of any motion where a hearing is scheduled by the moving party under subparagraph (H)(1)(b) of this Local Bankruptcy Rule shall contain language substantially in accordance with Official Form 420A and setting forth the requirement of a response under paragraph (G) in substantially the following form, using bold print and capitalized text:

A HEARING TO CONSIDER THE RELIEF REQUESTED IN THIS MOTION IS SCHEDULED FOR [HEARING DATE, TIME, AND LOCATION]. HOWEVER, THE MOVING PARTY MAY CANCEL THIS HEARING IF THERE IS NO TIMELY FILED RESPONSE IN OPPOSITION TO THE RELIEF REQUESTED.

(4) When a hearing is required upon the filing of a response in opposition or is set by the Court on a matter proceeding on negative notice or pursuant to subparagraph (H)(3)(b)(i)-(viii): The notice of any hearing that is required under subparagraphs (H)(1)(a) or (c) of this Local Bankruptcy Rule shall provide a hearing date, time, and location. The hearing date must allow the applicable response deadline [see LBR 9013-1(G)(3)] to elapse prior to the scheduled hearing and to afford any notice of the hearing required under the Federal Rules of Bankruptcy Procedure or these Local Bankruptcy Rules.

(5) When a hearing is set on an expedited basis: The notice of any hearing that is set on an expedited basis under paragraph (N) of this Local Bankruptcy Rule shall, as soon as possible, be filed with the Court and served on all required parties using a method reasonably calculated to provide timely notice to all affected parties. Such notice shall provide the hearing date, time, and location, as well as the applicable response period under paragraph (G)(3)(a)(ii).

(N) Request for Expedited Hearing: A motion requesting an expedited hearing shall be served, along with the underlying motion on which expedited consideration is sought, using a method reasonably calculated to provide timely notice to all affected parties, specify the date by which a hearing is requested, why a hearing is needed on an expedited basis, and accompanied by a certification verifying that the proponent:

(1) has carefully examined the matter and concluded that there is a true need for an expedited hearing;

(2) has not created the emergency through any lack of due diligence; and

(3) has made a bona fide effort to resolve the matter without hearing.

(O) Request to Shorten Notice Period:

(1) A request to shorten a notice period must be made by motion, which may be combined with a request for expedited hearing under paragraph (N) hereof, if applicable, that

(a) is filed concurrently with the notice of the underlying motion containing the shortened notice period; and

(b) states the reason(s) why shortened notice of the underlying motion is necessary.

(2) Service of a motion to shorten notice period and service of the underlying motion must be effectuated using a method reasonably calculated to provide timely notice to all affected parties.

(3) Responses in opposition to a motion to shorten notice period may be filed at any time prior to the expiration of the notice period requested for the underlying motion.

(P) Cancellation of Scheduled Hearings: It is the responsibility of counsel for the plaintiff/movant to advise the Court of any settlement or any other valid reason that a Court scheduled pretrial conference, hearing or trial need not be conducted. Counsel are advised to provide the Court with such notification as far in advance of any such conference, hearing or trial as is practical under the circumstances. Failure of such counsel to properly and timely notify the Court may result in the imposition of sanctions. Hearing cancellations must be submitted using the Court's Hearing Cancellation Module. However, if the cancellation concerns a matter excluded from the Hearing Cancellation Module or the cancellation is requested after 3:00 p.m. on the last business day prior to the hearing, the party requesting the hearing cancellation must contact the assigned Judge's courtroom deputy, and the Court will determine whether to permit the cancellation on a case-by-case basis. The Court further reserves the right to restore any cancelled hearing to the docket.

(Q) Non-Prosecuted Motions: Upon the closure of a bankruptcy case, any motion that remains pending due to the moving party's failure to either bring the matter before the Court for a hearing or tender an appropriate order shall be deemed abandoned for want of prosecution. Any such abandonment is without prejudice.

Comments 9013-1(A) Revision required conforms with the addition of LBR 3007-1.

9013-1(D) Change recommended to add written memorandum to the list of items requiring an additional copy at the time of filing.

9013-1(F) Change recommended to note the procedure to be used in those Divisions where a regular motions day practice is in place.

9013-1(J) Change recommended to the make the provisions for continuances applicable also to hearings.

9013-1(M) These changes note the use of Official Form 20A approved by the Judicial Conference at its September 1997 meeting with the mandatory implementation date of March 1, 1998.

New paragraph (H)(3)(d) sets the time period for filing a response to the filing of an objection to a claim. Paragraph (M) is rewritten to include the language for the notice of opportunity to respond. Paragraph (N) is amended to emphasize the need for a Priority Handling Cover Sheet for requests for expedited hearing. Paragraph (O) is new and includes rules for canceling scheduled hearings. [Changes effective 1/1/97]

9013-1 (M)(3) The additional requirements with respect to summary judgment motions against pro se parties are included to comply with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and to conform with changes in the Local Rules of Practice of the United States District Court for the Eastern District of Virginia. [Change effective 3/1/01.]

9013-1 Paragraph (N) is amended by removing the reference to a Priority Handling Cover Sheet. The word "emergency" is deleted at paragraph (N)(1) and the word "expedited" is substituted in lieu thereof. [Change effective 12/01/09.]

9013-1 A technical change has been made in paragraph (G)(2). In addition, time-computation adjustments have been made at paragraph (G) to conform to a revision to the Federal Rules of Bankruptcy Procedure that takes effect December 1, 2009. Stylistic changes have been made to the text of the LBR as well. [Changes effective 12/01/09.]

9013-1(M)(2) The amendment to paragraph (M)(2) is intended to clarify that the written response, as set forth in the Rule's Notice language, must be filed "at least 7 [or 3] days before the scheduled hearing date." [Change effective 07/01/10.]

9013-1(M)(1),(M)(2) and (M)(3) The current form is replaced with new Official Form 420A, which includes stylistic changes. The form also is amended to change the phrase "mail" to "send" to reflect the fact that there are various methods of providing documents to other parties. [Changes effective 12/1/16.]

9013-1(H)(3)(c) This amendment makes explicit when a party should request an expedited hearing and what the appropriate response deadline should be in such instance. [Change effective 08/01/17.]

9013-1(J) This amendment requires the party requesting a continuance to consult with opposing counsel and the trustee, if applicable, prior to filing a motion for continuance. This amendment is intended to ensure that opposing parties are apprised of continuance requests and would provide information to assist the Court in considering the motion. [Change effective 08/01/17.]

9013-1(K) This new paragraph substitutes for the subject matter formerly set forth in that paragraph. It incorporates by reference Motions Practice and Procedures Guidelines and Motions for Relief from Stay Guidelines. Both sets of Guidelines will: (a) be placed at Exhibit 7 to these Local Bankruptcy Rules, and (b) replace the current contents of Exhibit 7, which no longer will be applicable as of the implementation date of this new paragraph. [New paragraph effective 08/01/17.]

9013-1(A) This paragraph is amended to include the specific rule reference for motions for relief from automatic stay and to add motions for summary judgment to the list of items to which Rule 9013-1 does not apply. [Changes effective 08/01/23.]

9013-1(F) This paragraph is deleted, with certain portions reworded and relocated to new Rule 9013-1(H). [Change effective 08/01/23.]

9013-1(G) This paragraph is redesignated as (F) and is amended to clarify that motions for dismissal or conversion that are either voluntary or stipulated are excepted from the memorandum requirement. [Changes effective 08/01/23.]

9013-1(H) This paragraph is redesignated as (G) and is amended to include the chapter 7, 12, or 13 trustee, and any appointed chapter 11 trustee among the required recipients of responses in opposition to motions. The Rule is further amended to simplify the response period where neither the Federal Rules of Bankruptcy Procedure nor these Rules specify a different response period. The Rule is also amended to require submission of an order for motions that do not require a hearing where no opposition is filed and the notice period has expired. A stylistic change has been made as well. [Changes effective 08/01/23.]

9013-1(H) New paragraph (H) adopts a Negative Notice List of matters on which no hearing is required but may be scheduled in the movant's discretion; addresses the matters on which hearings are required; distinguishes matters on which the movant selects a hearing date from those for which the Court provides a hearing date; prohibits hearings from being set on less than 14 days' notice except where an expedited hearing request is granted; warns that an incorrect or non-compliant notice of hearing may result in the matter not appearing on the Court docket; sets forth required appearances at hearings; and requires counsel to exercise good faith in coordinating a hearing date and narrowing the issues prior to said hearing. [New paragraph (H) effective 08/01/23.]

9013-1(I) Paragraph I is repealed in light of the simultaneous adoption of amendments to Rule 7056-1. [Change effective 08/01/23.]

9013-1(J) This paragraph is amended to require continuance motions to be in writing, state the desired continuance by time or date, and to notify the Court of such motions filed less than one business day prior to the scheduled hearing. The Rule is further amended to provide that the Court may grant a continuance immediately where there is consent or other good cause in consideration of the exigencies present. [Changes effective 08/01/23.]

9013-1(K) This paragraph is amended to remove the reference to the Motions for Relief from Stay Guidelines, which reference has been relocated to new Rule 4001(a)-1(J). A stylistic change has been made as well. [Change effective 08/01/23.]

9013-1(M) This paragraph is amended to provide distinct forms of notice dependent upon whether a hearing is requested or required at the time of filing or at some point thereafter. The Rule is further amended to require the various notices to be provided in more conspicuous typeface. The notice language therein is amended to incorporate the new default response period under amended Rule 9013-1(G). Finally, the amendments address providing notice of an expedited hearing. [Changes effective 08/01/23.]

9013-1(N) This paragraph is amended to set forth service and substantive requirements for motions for expedited hearings. [Changes effective 08/01/23.]

9013-1(O) This paragraph is new and sets forth the process for requesting notice periods be shortened, service of such motions, and responses thereto and to provide that a motion to shorten the notice period may be combined with a motion requesting an expedited hearing. [New paragraph (O) effective 08/01/23.]

9013-1(P) This paragraph is redesignated from (O) in light of the adoption of new paragraph (O). The amendments set forth the method and parameters for notifying the Court of the settlement of proceedings as well as to provide that the Court may restore any cancelled hearing to the docket. [Changes effective 08/01/23.]

9013-1(Q) This paragraph is new and sets forth that the closure of a bankruptcy case will result in unprosecuted motions being deemed abandoned without prejudice. The Clerk's Office will no longer prompt parties to submit tardy orders. [New paragraph (Q) effective 08/01/23.]

9013-1(G)(3) The language of this rule is amended to enhance clarity regarding the minimum response period to be provided if another rule does not specify a different response period. [Change effective 12/01/23.]

9013-1(H)(2) The amendment to this rule adds applications for payment of unclaimed funds filed by unrepresented individuals to the list of enumerated items that do not require a hearing. [Change effective 12/01/23.]

9013-1(H)(4) The text of this rule is modified to more precisely indicate the required appearances of unrepresented parties. [Change effective 12/01/23.]

← All Local Rules Official Court Website