Return to Courtroom F HomeAdversary Proceeding Trials Conducted on a Trailing Docket (Fall 2003)
Judge Brown has adopted former Judge Matheson’s procedural practice of conducting certain adversary trials on a trailing docket. This practice has proved to be an efficient method of dealing with the especially large number of adversaries that have been filed over the past year. As a result of the economies provided by adversary trailing docket, the court calendar is able to accommodate emergent and evidentiary hearings in a more timely fashion. As a general matter the Court will refrain from placings certain adversaries on a trailing docket. For example, the Court will attempt to provide an individual trial date and time certain for adversary proceedings involving any of the following: (1) adversaries involving one or more pro se litigants; (2) adversaries involving an objection to discharge under Section 727; (3) adversaries requiring out of state witnesses; and (4) adversaries requiring a multi-day trial. If your adversary proceeding has been placed on a trailing docket trial and you believe that circumstances warrant an individual trial date, you may file a motion with the Court setting forth such circumstances and requesting an individual time and date certain for your trial.
What is the preferred procedural method of settling an adversary
proceeding in which a defendant will be making payments to plaintiff over a
period of time? Parties have two options. Parties can administratively close
the adversary proceeding subject to reopening, without fee, for the purpose of
entering judgment against the defendant (in the event of default), or dismissing
the case (upon completed performance). Alternatively, parties can request an
immediate judgment and close the adversary proceeding. Parties opting for
immediate judgment may agree to stay execution pursuant to the terms of the
settlement agreement. It is inconsistent to request the entry of judgment and
the dismissal of the adversary proceeding.
When does this Court require a party to provide notice of an adversary
settlement pursuant to L.B.R. 202 in the main case? This Court requires
notice of an adversary settlement pursuant to L.B.R. 202 in the main case
whenever property of the estate is involved. For example, the settlement or
abandonment of a preference claim compromises a cause of action that was
property of the estate and requires notice in the main case. A settlement that
involves disposition of assets that were arguably property of the estate
requires such notice. A settlement that requires a Chapter 7 debtor to make
future payments from his/her postpetition assets does not.
What is the procedural method for settling an adversary involving claims
under 11 U.S.C. 727? Pursuant to Fed.Bankr.R. 7041, this Court requires that
notice be given to the Chapter 7 trustee, the United States Trustee and any
other affected parties. In particular, the parties shall, in the adversary
proceeding, serve a copy of the Complaint, a Notice of Settlement, and a Motion
to Approve Settlement on the Chapter 7 trustee and the United States Trustee and
file a certificate of service evidencing compliance within ten (10) days . The
Notice of Settlement shall provide a deadline for objections that is twenty (20)
days from the date that the Complaint, Notice of Settlement and Motion to
Approve are served, failing which the Motion to Approve may be granted. For your
convenience, a form of Notice of Settlement is posted below as a “pdf” file.