Local Rule DCt.LBR 9033-1: DE NOVO REVIEW

DCt.LBR 9033-1 DE NOVO REVIEW

(a) NOTIFICATION TO DISTRICT COURT THAT BANKRUPTCY RULE 9033(b) OBJECTIONS TO PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW HAVE BEEN FILED; DOCKETING OF THE SAME.

When a party files objections to proposed findings of fact and conclusions of law issued by the Bankruptcy Court:

(1) the Clerk of the Bankruptcy Court must prepare and transmit a notice to the Clerk of the District Court attaching the objections, listing the parties and their attorneys' names and addresses (including e-mail addresses for purposes of e-notification), and stating that the record (including any responses to the objections) will be transmitted in due course; and

(2) the Clerk of the District Court must docket the matter under the title of the bankruptcy case and the title of any adversary proceeding, identifying the party that filed the objections (and adding the name of that party to the title if necessary), assign the matter to a District Judge in accordance with the District Court's usual system for assigning civil actions, and give the parties notice of the assignment.

(b) FILING MEMORANDUM REPLYING TO RESPONSE TO OBJECTIONS.

Within 7 days after service of a response to objections filed under Bankruptcy Rule 9033(b), the party who filed the objections may file with the Clerk of the Bankruptcy Court and serve a memorandum in reply to the response.

(c) PROPOSED ORDER.

Objections, and responses thereto, filed under Bankruptcy Rule 9033(b) must include a proposed order captioned for the District Court and complying with DCt.LCvR 7(k).

(d) MOTIONS; FILING AND SERVICE; SIGNATURE; DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS.

The following rules apply to a de novo review proceeding under Bankruptcy Rule 9033(b):

(1) DCt.LCvR 7(m) (Duty to Confer on Nondispositive Motions);

(2) Bankruptcy Rule 8011 ("Filing and Service; Signature") (with the words "other parties to the appeal" in Bankruptcy Rule 8011(b) changed to "other parties to the de novo review proceeding"); and

(3) Bankruptcy Rule 8012 ("Corporate Disclosure Statement") (with "upon filing a motion, response, petition, or answer in the district court" in Bankruptcy Rule 8012 (b) changed to "upon filing a paper intended for the attention of the District Court").

(e) STATEMENT OF POINTS AND AUTHORITIES.

Objections, and responses thereto, filed under Bankruptcy Rule 9033(b) must include or be accompanied by a statement of the specific points of law and authority that support the party's position, including where appropriate a concise statement of facts. If a table of cases is provided, counsel must place asterisks in the margin to the left of those cases or authorities on which counsel chiefly relies.

(f) PAGE LIMITATIONS.

Without prior approval of the District Court, a party must not file a memorandum of points and authorities in support of objections filed under Bankruptcy Rule 9033(b), or filed in response to the objections, that exceeds 45 pages, or a reply memorandum that exceeds 25 pages.

(g) DESIGNATION OF RECORD.

(1) Objecting Party. Within 14 days after filing the objections, the objecting party must serve and file a designation of relevant items to be included in the record for the District Court's consideration.

(2) Responding Party. Within 14 days after service of the objecting party's designation of record, any other party may serve and file a designation of additional items to be included in the record.

(3) Copies for the Clerk of the Bankruptcy Court. If paper copies of any items are needed for the record, the party designating such items must provide a copy of any of those items that the Clerk of the Bankruptcy Court requests. If the party fails to do so, the Clerk of the Bankruptcy Court must prepare the copy at the party's expense.

(4) Transcript of Proceedings. If the record designated by any party includes a transcript of any proceeding or a part thereof, then by the date of making that designation, that party must deliver to the reporter (designated on the Bankruptcy Court's website–or authorized by order or rule of the Bankruptcy Court–to prepare the transcript) and file with the Clerk of the Bankruptcy Court a written order for the transcript and make satisfactory arrangements with the reporter for paying the cost of the transcript. When a transcript is unavailable, the procedures of Bankruptcy Rule 8009(c) apply (with the words "appellant" and "appellee" changed to "objecting party" and "responding party," respectively).

(5) Other Necessary Actions. All parties must take any other action necessary to enable the Clerk of the Bankruptcy Court to assemble and transmit the record.

(6) Agreed Statement as the Record. The parties may submit an agreed statement of facts as a proposed record. If the statement is accurate, it–together with any additions that the Bankruptcy Court may consider necessary to a full presentation of the issues–must be approved by the bankruptcy judge and then certified as the record, and it shall constitute the record unless the District Judge undertaking de novo review directs otherwise.

(7) Unsupported Finding or Conclusion. If an objecting party intends to argue that a proposed finding or conclusion is unsupported by the evidence or is contrary to the evidence, that party must include in the record a transcript of all relevant testimony and copies of all relevant exhibits.

(8) Bankruptcy Court. The Bankruptcy Court may file a statement designating items that it believes support its proposed findings of fact and conclusions of law and that it recommends that the District Court direct be included in the record.

(h) RECORD TO BE TRANSMITTED.

The record must include the following:

• items designated by the parties;

• the proposed findings of fact and conclusions of law, the objections thereto, any responses, and any reply;

• any transcript ordered;

• any statement of the Bankruptcy Court under paragraph (g)(8) of this rule; and • any additional items that the District Court orders to be included.

(i) TRANSMITTAL OF RECORD TO DISTRICT COURT.

When the record is complete for purposes of transmittal, but without awaiting the filing of any transcripts, the Clerk of the Bankruptcy Court must transmit to the Clerk of the District Court:

(1) the proposed findings of fact and conclusions of law, the objections thereto, any responses, and any reply; and

(2) a notice that the record (except for any records under seal governed by DCt.LBR 5005-1) is available electronically.

(j) DISTRICT COURT MAY REQUEST PAPER COPIES OF RECORD.

The District Court may require that a paper copy of some or all of the record be furnished, in which case the Clerk of the District Court will direct the movant to provide the copies. If the movant fails to provide them, the Clerk of the Bankruptcy Court must prepare the copies at the movant's expense.

(k) PROCEEDINGS IN DISTRICT COURT.

After the record has been transmitted to the District Court, documents pertaining to the objections must be filed with the Clerk of the District Court.

(l) OBJECTIONS UNDER BANKRUPTCY RULE 9033 WHEN THE BANKRUPTCY JUDGE, WITHOUT AUTHORITY, ISSUED AN ORDER OR JUDGMENT DECIDING A PROCEEDING.

If the Bankruptcy Court has issued a judgment or order deciding a proceeding and a party contends that the Bankruptcy Court lacked authority to issue the judgment or order, then DCt.LBR 8018.1-1 governs the requirement of filing of objections under Bankruptcy Rule 9033 to the Bankruptcy Court's findings of fact and conclusions of law as though they were proposed findings of fact and conclusions of law.

COMMENT TO DCt.LBR 9033-1: Paragraph (a) is modeled on Bankruptcy Rule 8003(d), and requires immediate transmission of the objections to the District Court, and the docketing of them as a civil action, with the record to follow later.

Paragraphs (c), (e), and (f) are modeled on LCvR 7. Paragraph (g)(7) is modeled on Bankruptcy Rule 8009(b)(5).

The objections papers filed in the Bankruptcy Court for the District Court's eventual attention should bear the caption of the Bankruptcy Court except that proposed orders intended for entry by the District Court should bear the caption of the District Court, bear a signature line for a United States District Judge, and, when a docket has not yet been opened in the District Court, leave the Civil Action Number blank.