Practice Pointers for the Southern District
GENERAL BANKRUPTCY PRACTICE
Local Rules Aren’t Just for Judges
All too often attorneys leave it to the Judges to educate them on the Local Rules without taking the time to read them. Local Rule 2090-1(A)(2) requires attorneys practicing in the Southern District to read and be familiar with the contents of the Local Rules. This means that if the Judge you are appearing before has to inform you of the rule you are not following, then you are already in trouble since he or she expects that you should know the rule when you walk into the courtroom. While the Local Rules are no longer sold in book form at the Courthouse, you can have a small book made within a day at your local print shop for less than twenty dollars.
Confer With Opposing Counsel Because it Could Save You a Trip to the Courthouse
Calling opposing counsel can reveal that there is not a disagreement or that an agreement can be reached. All too often practitfioners put off contacting opposing counsel, but actually making contact with opposing counsel before filing a motion or well before a hearing can save everyone’s time. If you come to an agreement and need to cancel the hearing, a good rule of thumb is to have the agreed order reviewed, approved, and filed two days before the hearing to free up the Judge’s time for contested matters. Beware, if you wait until five minutes before the hearing to talk for the first time, you may find a Judge none too happy about having two lawyers in front of him or her that are not prepared to properly argue what is being contested.
When a Coverage Attorney is on a Suicide Mission is the Client the Only Casualty?
Most judges do not take issue with the named attorney sending a junior associate or an independent coverage attorney to a scheduled hearing. A “suicide mission” is when the coverage attorney does not have the competence in bankruptcy necessary to adequately represent the client’s interest or is not provided enough information about the case to know what is going on at the hearing, much less the client’s case. This can be avoided by making sure that you are picking coverage counsel that is knowledgeable about bankruptcy and providing him or her with enough notes to properly represent your client’s interests at the hearing. Failure to do so may result in an order to show cause from the judge or irreparable harm to your reputation. It is also good practice to contact the other side or the Trustee to make sure he or she does not have an objection to a coverage attorney appearing on your behalf.
Why Are You Filing Discovery?
The vicious cycle of this phenomena starts with a Request for Production that a Defendant in an Adversary Proceeding receives via CM/ECF. The Defendant feels the load of stress that comes from leaving a docket entry of an opponent unanswered. Don’t do it. Step away from the computer. Local Rule 7026-1 covers what should and should not be filed when conducting discovery. Subsection (c) of the rule states that discovery requests and responses such as, written interrogatories and requests for production “shall be served upon other attorneys and parties, but shall not be filed with the court.” The only item one should file in response to a discovery request is a notice of service.
Watch Who You “With all Due Respect”
The “Most Dreaded Words” were the topic in a recent ABI Journal Article by the Honorable Janice Miller Karlin (June 2011). A few of the Southern District Judges have openly expressed their agreement with the heeding message of this article. There are ways to express disagreement with a judge or opposing counsel without using dreaded words. These words include “to be frank”, “to be honest”, “with all due respect”, and other condescending phrases. Before being tempted by these phrases that lead to the rest of your argument falling on deaf ears and subjecting yourself to the glazed look of a judge who cannot believe what she or he just heard, think about what message you are attempting to convey and/or the desired response. Being respectful of the court and other professionals will always be a good decision and will lead you to the right choice of words.
Don’t be so Ex Parte When Communicating With the Court
When calling or emailing the court, make sure to avoid improper ex parte communications. Take extra measures to conference opposing counsel into a call with the court and carbon copying opposing counsel on emails to the court.
Proof of Claim Itemization for Creditors is No Longer a Courtesy, It is a Requirement
Amended Local Rule 3001(c)(2) requires that creditors provide additional information when filing proofs of claims in individual debtor cases (effective August 1, 2011). A creditor should include an itemization of any interest, fees, expenses, and other charges included in the claimed amount rather than providing the claim amount without any detail. Be careful; failure to comply with these additional requirements can result in sanctions!
Be Careful When Objecting to a Proof of Claim Filed by a Scheduled Creditor for a Scheduled Debt
Recently, Judge Olsen in the Broward Section of the Bankruptcy Court has explored the issue of consumer attorneys’ objections to proofs of claims based on a lack of documentation when the debt is one that appears in the schedules. Judge Olsen issued a series of “Orders to Show Cause” addressing such objections. When filing an objection to a filed claim make sure that you are using the prescribed local form, and take the time to spell out the grounds in the objection. If filing an objection to claim based on a lack of documentary support, be sure to see Judge Olsen’s orders on the issue (See Case No. 11-13345-JKO). If filing this kind of objection, you may find a memorandum of law accompanying the objection helpful stating the grounds for your objection and make sure to bring the objection in front of the presiding judge.
Changes to the Order Reinstating a Chapter 13 Case
A new local form has replaced the prior “Order Vacating Dismissal and Reinstating Chapter 13 Case.” The new form is titled “Order Reinstating chapter 13 Case” since there was confusion about the old form retroactively reinstating the stay by vacating the dismissal. Section 362(c)(2)(B) provides that the automatic stay is terminated when the case is dismissed, and the new form makes it clear that the stay is reinstated with the case. Therefore, any collection efforts between the dismissal and reinstatement are not violations of the automatic stay.
If you have any other Practice Pointers that you think would be helpful for the BBASDFL community, please contact Kelly Roberts, Associate at The Bankruptcy Law Offices of James Schwitalla, P.A.