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Local Rules

(a)  Chapter 11 Final Report and Motion for Final Decree.  Immediately after the estate is fully administered, the debtor-in-possession must file a final report and motion for final decree in substantial conformity with L.B.F. 3022-1.1 (business debtor) or L.B.F. 3022-1.2 (individual debtor) and serve it on the United States Trustee and parties requesting notice.

(b)  Objection.  If no objection has been filed within 30 days of the filing of the final report and motion for final decree, the Court will presume that the estate has been fully and properly administered and a final decree will enter.

(c)  Final Decree.  The final report and motion for final decree must be accompanied by a proposed order in substantial conformity with L.B.F. 3022-1.3 (business debtor) or L.B.F. 3022-1.4 (individual debtor).

(a)  Motions for Relief from Automatic Stay Under 11 U.S.C. § 362(d) Against Debtor.

(1)  Selection of Hearing Date.  Each division maintains a separate motion for relief from stay calendar.  The Court provides hearing date information on its website.  All motions for relief from stay must be set for hearing on the calendar of the division to which the case is assigned.  A party desiring to file a motion for relief from stay in a bankruptcy case will select from the calendar of available hearing dates a proposed hearing date, which must be the latest hearing date available on the assigned judge’s calendar which is not more than 30 days from the date the motion for relief from stay is filed with the Court.

(2)  Waiver of Rights under 11 U.S.C. § 362(e).  In the event the movant sets a hearing date beyond 30 days, or seeks a continuance of the hearing, the movant is deemed to have waived its right under 11 U.S.C. § 362(e) to automatic relief after 30 days.

(3)  Notice of Hearing and Time to Object.  Subject to the provisions of this Rule, the movant must comply with the provisions of L.B.R. 9013-1.  In addition to the parties specified in Fed. R. Bankr. P. 4001, the movant must serve the notice and motion on the debtor and debtor’s attorney, the United States Trustee, trustee, and any party with an interest, such as a party claiming lien rights in property against which the movant seeks relief.  The notice of hearing must provide that any objection and request for hearing must be filed by a specific date that is at least seven days prior to the hearing date and that, if no objection to the requested relief is timely filed, the relief requested in the motion may enter without a hearing. 

(4)  Mandatory Motion Requirements.  In addition to complying with L.B.R. 9013-1, the movant must:

(A) plead with specificity facts supporting the requirements of 11 U.S.C. § 362(d);

(B) if, as a basis for relief, a default is alleged as to payment on a business or consumer debt, attach a detailed, understandable payment history regarding the debt and arrearages and a summary;

(C) if, as a basis for relief, a default is alleged as to payment on a promissory note, include a statement whether the movant has possession of the original promissory note;

(D) file and serve a notice in substantial conformity with L.B.F. 4001-1.1;

(E) if the debtor or co-debtor is an individual, file a Servicemembers Civil Relief Act (“SCRA”) Affidavit pursuant to L.B.R. 4002-3(c);

(F)  file and serve a proposed order in substantial conformity with L.B.F. 4001-1.3; and

(G) pay the required filing fee.

(5)  Failure to Comply.  A movant’s failure to comply with this Rule may result in the denial of the motion without prejudice and without further notice or hearing.

(6)  No Objections.  If no objections are filed and the movant wants an order granting the requested relief, the movant may file a Certificate of Non-contested Matter, L.B.F. 4001-1.2, no sooner than the day of the scheduled hearing.

(b)  Motions for Relief from Stay under 11 U.S.C. §§ 1201 or 1301 Against Co-debtor.  The procedures for seeking relief from the co-debtor stay are the same as that specified in L.B.R. 4001-1(a) except:

(1)  The movant must select a hearing date that is not more than 20 days from the date of the motion.  In the event that the movant sets a hearing date beyond 20 days, the movant is deemed to have waived its right to relief within 20 days under 11 U.S.C. § 1201(d) and 1301(d).  If the movant files a combined motion under 11 U.S.C. § 362(d) and § 1201 or 1301, the movant will be deemed to have waived their rights under § 1201(d) or § 1301(d) to automatic relief after 20 days; and

(2)  The notice of hearing must provide that any objection and request for hearing must be filed by a specific date that is at least seven days prior to the hearing date and that, if no objection to the requested relief is timely filed, the relief requested in the motion may enter without a hearing.

(c)  Procedures for Preliminary Hearings.  The following procedures apply at preliminary hearings on motions for relief from stay:

(1)  No testimony will be taken.  Evidence will only be accepted by way of an oral offer of proof and exhibits.  Such offers must provide sufficient detail to enable the Court to make specific findings based thereon and must include the identity of the witnesses available to testify at an evidentiary hearing and an explanation of their expected testimony.  Written summaries of witnesses’ testimony are not required but may be submitted.

(2)  Parties must exchange all exhibits they intend to use, or may reasonably anticipate using, no later than 24 hours prior to the preliminary hearing.  The exhibits must be tendered to the Court at the hearing, together with a statement identifying the witness or witnesses who would be called to identify and lay the foundation for the introduction of such exhibits.

(3)  Objections to tendered evidence should be made at the conclusion of each party’s declaration.  Any objection must identify the evidence objected to and specify the grounds for the objection.

(4)  The Court will treat the hearing as a preliminary hearing and, based on the proffers of evidence, if there is a reasonable likelihood that the party opposing relief will prevail at a final hearing, may set the matter over for a final hearing.  In the alternative, the Court may consider the offers of proof and, absent the need for an evidentiary hearing, grant, or deny the request for relief from stay.

(5)  Expert Witnesses.  Any party anticipating the use of an expert witness for a final hearing will, at the initial hearing, comply with Fed. R. Civ. P. 26(a)(2) as incorporated by Fed. R. Bankr. P. 7026.

(d)  Telephonic Hearings.  The presiding judge may permit telephonic appearances.  Each division provides relevant chambers’ procedures on the Court’s website.  Any party appearing telephonically must exchange witness lists and exhibits with the other parties and file them with the Court no later than 24 hours prior to the hearing.

(a)  Motions.  Except as provided herein and elsewhere in these Rules, parties seeking cash collateral and/or financing requests under 11 U.S.C. §§ 363 and 364 must file a motion pursuant to Fed. R. Bankr. P. 2002, 4001, and 9014, and L.B.R. 2081-1 and 9013-1 as applicable (“Financing Motions”).

(1)  Mandatory Inclusions.  All Financing Motions must also provide a summary of the essential terms of the proposed use of cash collateral and/or financing including, but not limited to:

(A) maximum borrowing available on a final basis;

(B) interim borrowing limit;

(C) borrowing conditions;

(D) interest rate;

(E) fees, costs and charges paid or payable by debtor or any other person or entity;

(F)  maturity;

(G) events of default;

(H) remedies in the event of default;

(I)   use of funds limitations;

(J)  protections afforded under 11 U.S.C. §§ 363 and 364; and

(K) line item budget for both the interim and final order periods, unless the Court orders otherwise.

(2)  Provisions That Will Not Be Approved without Demonstration of Necessity or Cause.  All Financing Motions must identify the location of any of the following provisions or findings of fact in the proposed form of order and/or underlying cash collateral stipulation or loan agreement by page, paragraph and/or line number, and provide the justification for the inclusion of each such provision or finding of fact:

(A) Cross-collateralization that secures pre-petition debt by post-petition assets not otherwise subject to the secured party’s pre-petition security interest, except as a means of providing adequate protection for use of cash collateral, to the extent of deterioration of a secured creditor’s position.  See 11 U.S.C. § 552;

(B) Binding the estate or all parties in interest with respect to the validity, perfection or amount of the secured party’s lien or debt;

(C) Binding the estate or all parties in interest with respect to the relative priorities of the secured party’s lien and liens held by persons who are not party to the stipulation (i.e., an order approving a stipulation providing that the secured party’s lien is a “first priority” lien);

(D) Waivers of 11 U.S.C. § 506(c);

(E) Provisions that operate to divest the debtor-in-possession of any discretion in the formulation of a plan, administration of the estate or limit access to the Court to seek any relief under other applicable provisions of law;

(F)  Releases of liability for the creditor’s alleged pre-petition torts or breaches of contract;

(G) Waivers of avoidance actions arising under the Bankruptcy Code;

(H) Automatic relief from the automatic stay upon default, conversion to chapter 7, or appointment of a trustee;

(I)   Waivers of the procedural requirements for foreclosure mandated under applicable non-bankruptcy law;

(J)  Adequate protection provisions that create liens on claims for relief arising under the Bankruptcy Code (see 11 U.S.C. §§ 506(c), 544, 545, 547, 548, and 549);

(K) Waivers, effective on default or expiration, of the debtor’s right to move for a Court order pursuant to 11 U.S.C. § 363(c)(2)(B) authorizing the use of cash collateral in the absence of the secured party’s consent; and

(L)  Findings of fact extraneous to the approval process.

(b)  Interim Relief.  When Financing Motions are filed with the Court on or shortly after the date of the entry of the order for relief pursuant to L.B.R. 2081-1, the Court may grant interim relief pending review by the interested parties of the proposed debtor-in-possession financing arrangements.  Such interim relief is intended to avoid immediate and irreparable harm to the estate pending a final hearing.  The Court may deny the interim relief requested in the absence of a reasonable opportunity to object.

(c)  Final Orders.  The Court will enter a final order only after providing parties notice and an opportunity for a hearing pursuant to Fed. R. Bankr. P. 4001 and L.B.R. 9013-1.

(a)  Continuance of Automatic Stay.  Motions to continue the automatic stay pursuant to 11 U.S.C. § 362(c)(3)(B) must:

(1)  Be filed with the petition or promptly thereafter in order to permit compliance with the statutory requirement that the Court complete the hearing and rule on the motion within 30 days after the filing of the later case;

(2)  State whether the presumption that the later case was filed not in good faith under 11 U.S.C. § 362(c)(3)(C) applies;

(3)  Explain why the later case is filed in good faith as to the creditors to be stayed, and specify whether the request extends to all creditors or only specified creditors;

(4)  Provide clear and convincing admissible evidence (through a verification of the debtor or affidavit(s)) as to the pertinent factual allegations and, if applicable, rebutting the presumption that the later case was filed not in good faith;

(5)  Unless otherwise ordered by the Court, provide at least 14 days’ notice of the objection date and hearing date to the applicable trustee, debtor, debtor’s attorney, and all affected creditors in accordance with L.B.R. 4001-1(a)(3) and 9013-1;

(6)  Be self-calendared on the assigned judge’s relief from stay hearing docket on a date that allows 14 days’ notice but is less than 30 days from the date of the order for relief; and

(7)  If seeking to continue the automatic stay with respect to certain property of the estate, be served pursuant to Fed. R. Bankr. P. 7004 and 11 U.S.C. § 342 as to any creditor who holds or asserts an interest in such property of the estate.

(b)  Imposition of Stay.  Motions to impose a stay pursuant to 11 U.S.C. § 362(c)(4)(B) must:

(1)  Be filed within 30 days after the filing of the later case;

(2)  State whether the presumption that the later case was filed not in good faith under 11 U.S.C. § 362(c)(4)(D) applies;

(3)  Explain why the later case is filed in good faith as to the creditors to be stayed, and specify whether the request extends to all creditors or only specified creditors;

(4)  Provide clear and convincing admissible evidence (through a verification of the debtor or affidavit(s)) as to the pertinent factual allegations and, if applicable, rebutting the presumption that the later case was filed not in good faith;

(5)  Unless otherwise ordered by the Court, provide at least 14 days’ notice of the objection date and hearing date to the applicable trustee, debtor, debtor’s attorney and all affected creditors in accordance with L.B.R. 4001-1(a)(3) and 9013-1;

(6)  Be self-calendared on the assigned judge’s relief from stay hearing docket on a date that allows 14 days’ notice; and

(7)  If seeking to impose a stay with respect to certain property of the estate, be served pursuant to Fed. R. Bankr. P. 7004 and 11 U.S.C. § 342 as to any creditor who holds or asserts an interest in such property of the estate.

(c)  Procedures.  Motions filed pursuant to this Rule are subject to the procedures in L.B.R. 4001-1(a)(1) Selection of Hearing Date, L.B.R. 4001-1(a)(3) Notice of Hearing and Time to Object, L.B.R. 4001-1(c) Procedures for Preliminary Hearing, and L.B.R. 4001-1(d) Telephonic Hearings.  Additionally, if no objections are filed, the movant must submit a Certificate of Non-contested Matter in accordance with L.B.R. 9013-1(c)(1).  If a Certificate of Non-contested Matter is filed, the Court may, in its discretion, vacate the hearing.

(d)  Forms.  Parties must file and serve a notice in substantial conformity with L.B.F. 4001-4.1 and submit a proposed form of order.

 

Commentary

Motions to continue the automatic stay under 11 U.S.C. § 362(c)(3)(B) may be summarily denied if they are not timely filed such that meaningful due process can be afforded and a hearing completed before the end of the 30 day period set forth in 11 U.S.C. § 362(c)(3)(B).  

(a)  Automatic Stay Comfort Orders.  A party seeking an order confirming the absence of the automatic stay (a “comfort order”) must file a motion demonstrating its entitlement under the applicable Bankruptcy Code provision and comply with all additional requirements herein.

(b)  Procedures.  All motions filed pursuant to this Rule must be served on the debtor, debtor’s attorney, the trustee, and the United States Trustee.  Parties must file a proposed order in substantial conformity with L.B.F. 4001-5.1.

(c)   Ex Parte Relief.  The Court may act on a request for a comfort order on an ex parte basis, without awaiting the presumptive 14-day notice period set forth in L.B.R. 9013-1(a)(5).

(d)  Motions Pursuant to 11 U.S.C. § 362(b)(22) (confirming absence of automatic stay as to eviction proceedings).  In addition to pleading facts sufficient to satisfy the applicable statutory requirements, movant must attach a copy of the judgment for possession and the debtor’s Official Form 101A, Initial Statement About an Eviction Judgment Against You, if any.  

(e)  Motions Pursuant to 11 U.S.C. § 362(c)(3)(A) (confirming termination of automatic stay due to one prior bankruptcy filing).  A motion under this statute may not be filed earlier than 30 days after the petition date and must include:

(1)  case number of the previous bankruptcy case in which the debtor was a debtor that was pending in the previous one-year period prior to the present case, including the jurisdiction of the court if the previous filing was outside of Colorado;

(2)  date of dismissal of the prior case;

(3)  reasons for dismissal; and

(4)  copy of the order of dismissal. 

(f)    Motions Pursuant to 11 U.S.C. § 362(c)(4)(A)(ii) (confirming absence of stay due to serial bankruptcy filings).  A motion under this statute must include:

(1)  case numbers of all previous bankruptcy cases in which the debtor was a debtor that were pending in the one-year period prior to the present case (the “Prior Cases”), including the jurisdiction of the Court if any of the previous filings were outside of Colorado;

(2)  dates of dismissal of the Prior Cases;

(3)  reasons for dismissal;

(4)  verification that no party in interest has timely requested the imposition of the automatic stay under 11 U.S.C. § 362(c)(4)(B) or that the Court has denied any such request; and

(5)  copy of the order of dismissal entered in each of the Prior Cases.

(g)  Motions Pursuant to 11 U.S.C. § 362(h)(1) (confirming termination the stay for failure to comply with duties under 11 U.S.C. § 521(a)(2) with respect to personal property).  In addition to pleading facts sufficient to satisfy the applicable statutory requirements, the motion must:

(1)  provide a detailed description of the personal property securing the debtor’s obligation to the movant; and

(2)  attach an affidavit of movant or movant’s representative as to whether the debtor failed to timely file, or to perform, a statement of intention filed under 11 U.S.C. § 521(a)(2) with respect to the subject property.

(h)  Motions Pursuant to 11 U.S.C. § 362(h)(2) (determining that property is of consequential value or benefit).  The motion must:

(1)  explain the basis for movant’s belief that the property is of consequential value or benefit to the estate;

(2)  describe what adequate protection is appropriate to protect the creditor’s interest and whether or not the debtor has delivered the collateral to the trustee;

(3)  comply with service and notice requirements of Fed. R. Bankr. P. 7004 and 11 U.S.C. § 342 as to any creditor who holds or asserts an interest in such property of the estate; and

(4)  unless otherwise ordered by the Court, be filed within 30 days after the first date set for the meeting of creditors.

(a)  Forms of Communication; Issuance of Monthly Statements is not a Stay Violation.  The following communication and issuance of monthly statements are declared appropriate and not a violation of the automatic stay:

(1)  Permissible Contact with the Debtor.  Secured creditors may contact the debtor about the status of insurance coverage on property that is collateral for the creditor’s claim, may respond to inquiries and requests for information about the account from the debtor, and may send the debtor statements, payment coupons, information on loss mitigation or loan modifications, or other correspondence that the creditor sends to its non-debtor customers, without violating the automatic stay, provided none of these communications includes an attempt to collect the debt.  Permissible forms of communication are those that are sent to the debtor by creditors in the ordinary course of business, to the address that the debtor last provided to the creditor by agreement between the debtor and the creditor.  In order for communication to be protected under this Rule, the communication must indicate it is provided for information purposes and does not constitute a demand for payment.

(2)  Manner of Contacting Debtor.  Permissible communications may be transmitted via email, facsimile, mail, commercial communications carrier, or such other mode as is mutually acceptable to the parties.

(a)  Motions Regarding Tax Returns.

(1)  Motions to dismiss pursuant to 11 U.S.C. § 521(e)(2) are governed by L.B.R. 9013-1.

(2)  Motions to compel compliance with 11 U.S.C. § 521(f) are governed by L.B.R. 9013-1.

(b)  Redaction of Personal Information in Tax Returns.  Under L.B.R. 9037-1, it is the responsibility of any party filing documents, including tax information, to redact personal information.  The Court will file all documents as tendered without taking any action to redact personal information.

(a)  Individual Debtor’s Statement of Military Service.  Pursuant to the Servicemembers Civil Relief Act of 2003 (“SCRA”), 50 App. U.S.C. § 501 et seq., a debtor should inform the Court if he or she is a servicemember subject to the provisions of SCRA at the time of the filing of the bankruptcy petition by filing a Statement of Military Service.

(b)  Individual Debtor’s Failure to Comply.  The debtor’s failure to inform the Court of his or her military status does not constitute a waiver of the debtor’s protections under SCRA, and does not alter the responsibility of a party to investigate the debtor’s servicemember status before filing any documents pursuant to Fed. R. Bankr. P. 4001 and 7055 and L.B.R. 4001-1 and 7055-1.

(c)   Affidavit Required for Motion for Default Judgment and Motions for Relief from the Automatic Stay for Cases Concerning Individual Debtor.  At the time of the filing of a motion for relief from stay under Fed. R. Bankr. P. 4001 or a motion for default judgment in an adversary proceeding pursuant to Fed. R. Bankr. P. 7055, the plaintiff/movant must file an affidavit with the Court which states (i) whether or not the defendant/respondent is in the military service, and indicating the necessary facts to support said affidavit; or (ii) if the plaintiff/movant is unable to determine whether or not the defendant/respondent is in the military service, a statement that the plaintiff/movant is unable to so determine.  The Court will deny motions for relief from stay and motions for default judgment that do not include the required affidavit.  If the Court is unable to ascertain the defendant’s/respondent’s military status from the affidavit, it may require the plaintiff/movant to post a bond before entering an order lifting the stay or a default judgment.

L.B.R. 4002-3. Servicemembers Civil Relief Act of 2003 (“SCRA”)

(a)  Objections.  Objections to exemptions must comply with L.B.R. 9013-1.

(b)  Notice.  Objections must be accompanied by notice in substantial conformity with L.B.F. 9013-1.1 and must provide at least 14 days from the date of service for the filing of a response.

(c)   Hearing.  Upon the filing of a Certificate of Non-contested Matter, the Court may enter an order without a hearing.  Upon the filing of a Certificate of Contested Matter, the Court may set a hearing on the matter.

(a)  Motions to Avoid Judicial Liens Under 11 U.S.C. § 522(f).  A motion to avoid judicial liens under 11 U.S.C. § 522(f) must include the following:

(1)  Identification of the lien creditor.  The caption, title of pleading, or introductory paragraph must clearly identify the affected lien creditor.  It is not sufficient to only attach a copy of a transcript of judgment, without also identifying the affected creditor in the body of the pleadings;

(2)  Specific grounds for relief under 11 U.S.C. § 522(f) (e.g., whether the lien impairs the debtor’s exemption, the purported value of the property, the amount of the various liens filed against the property, whether the debtor claimed a homestead exemption on Schedule C); and

(3)  Evidence that a lien was actually recorded against the homestead (e.g., specific recording information and/or a copy of the transcript of judgment).

(b)  Notice.  The motion must be accompanied by a notice in substantial conformity with L.B.F. 9013-1.1 and must provide at least 14 days from the date of service for the filing of an objection.

(c)   Certificate of Service.  The motion must be accompanied by a certificate of service showing service on the affected lien creditor of both the notice and motion.  Service must comply with the requirements of Fed. R. Bankr. P. 7004 and 9014.

(d)  Proposed Order.  The motion must be accompanied by a proposed order.  The proposed order must contain an adequate description of the property and must not purport to do anything more than declare the lien avoided.  The proposed order should not place an affirmative duty on the lien creditor to file documents to remove the lien from the chain of title.

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