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Local Rules

(a)  Discovery and Trial Schedule.  When an adversary proceeding is at issue, the Court may direct the parties to develop a discovery plan and pretrial deadlines and file a joint report on the same pursuant to Fed. R. Civ. P. 26(f) or, in its discretion, may set a trial.

(b)  Depositions.  Unless otherwise agreed by the parties and the deponent or ordered by the Court, reasonable notice for the taking of depositions or conducting examinations under Fed. R. Bankr. P. 7030 (Fed. R. Civ. P.  30(b)(1)) is at least 14 days.

(c)   Discovery Materials

(1)  The term “Discovery Materials” includes without limitation deposition transcripts, interrogatories and responses, requests for production or inspection and responses, requests for admission and responses, and initial and supplemental disclosures.

(2)  Discovery Materials should not be filed with the Court, unless the Court orders otherwise.

(3)  If a party anticipates using Discovery Materials, or a portion of them, at trial or hearing, then that party must mark and prepare excerpts of relevant portions to be offered into evidence.

(d)  Discovery Disputes.  

(1)  If there is a discovery dispute, parties must meet and confer in a meaningful way to try to resolve any issues prior to requesting a discovery hearing.

(2)  If the parties cannot resolve all disputes without the assistance of the Court, then one or more parties may request a Court hearing by sending an email to the courtroom deputy/judicial assistant of the assigned judge at the chambers’ email address listed on the Court’s website, copied to all parties. 

(3)  No written discovery motions will be permitted without Court authorization, except that motions for protective orders pursuant to Fed. R. Civ. P. 26(c) may be filed.

(4)  The Court will schedule a hearing as promptly as possible.

(5)  No later than five days prior to the hearing, each party to the dispute must file a report identifying the discovery issue(s) in dispute without elaboration or argument.  The report may not exceed two pages in length.  It may contain citations to critical supporting legal authority but, no written motions, briefs, copies of written discovery, or any other attachments may be filed, unless expressly requested by the Court.

(6)  Parties and attorneys must appear in person at the hearing, unless otherwise authorized by the Court.

(7)  If a discovery dispute arises in the course of a deposition, one or more parties may telephone the chambers of the assigned judge at the chambers’ telephone number listed on the Court’s website, to request an emergency hearing on the matter.  If available, the Court may hold an immediate hearing on the dispute, by telephone or in person, as the Court specifies.

(e)  Stipulated Protective Orders.  A request for an order of the Court approving a stipulated confidentiality or protective order may be filed with the Court at any time. 

(f)    This Rule applies to contested matters as well as adversary proceedings. 

(a)  Applicability.  Unless modified by order of the Court, the provisions of these Rules apply in adversary proceedings and contested matters under Fed. R. Bankr. P. 7001 and 9014.

(b)  Depositions.  A party may take the deposition of only three persons.

(c)  Interrogatories.  A party may serve only one set of written interrogatories upon each adverse party.  The number of interrogatories to any one party may not exceed 30, each of which must consist of a single question.

(d)  Other Discovery.  In all other respects, the Fed. R. Bankr. P. govern the procedures and manner of taking discovery.

(e)  Additional Discovery.  A request for discovery beyond that which is provided for herein may be made by the parties in their joint Fed. R. Bankr. P. 7026 written report.  Unless the parties otherwise agree, any requests after the filing of the written report must be made by motion.

A party seeking dismissal of a complaint objecting to a debtor’s discharge must file a motion in the adversary proceeding in accordance with L.B.R. 9013-1 and notice in substantial conformity with L.B.F. 7041-1.1, served on the United States Trustee, trustee, and other parties as directed by the Court, with opportunity to object.  The motion must disclose all terms of any agreement made between the plaintiff and the debtor in relation to the litigation and its proposed dismissal.  Appropriate orders may be requested using L.B.F. 9013-1.3 or 9013-1.4, as applicable.

(a)  Clerk’s Entry of Default.  A party seeking Clerk’s entry of default pursuant to Fed. R. Civ. P.  55(a) must file a motion in accordance with L.B.R. 9013-1 and verify by affidavit or otherwise pursuant to 28 U.S.C. § 1746 the following:

(1)  the party against whom default is sought has been properly served with a complaint and summons, including the date of the issuance of the summons and the date of service of the complaint and summons;

(2)  the party against whom default is sought has failed to plead or otherwise defend within the allowed time;

(3)  the party against whom default is sought has not requested or has not been granted an extension of time to plead or otherwise defend; and

(4)  a motion for Clerk’s entry of default may not be combined with a motion for entry of default judgment.

(b)  Default Judgment After Entry of Default.  A party seeking entry of a default judgment pursuant to Fed. R. Civ. P.  55(b) must file a motion in accordance with L.B.R. 9013-1 containing the following:

(1)  request for entry of default judgment;

(2)  affidavit, executed by an individual with personal knowledge, setting forth sufficient factual support for each element of each claim on which judgment is requested.  In cases involving individuals, the supporting affidavit must allege that the defendant is not an infant or incompetent person, unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared in the action;

(3)  in cases involving individuals, the SCRA affidavit required by L.B.R. 4002-3;

(4)  if appropriate, documentary evidence to support the allegations in the affidavit (attached as exhibits);

(5)  proposed form of order approving the motion; and

(6)  proposed form of judgment.

(c)  Proof Hearing.  The Court will advise the party seeking entry of default judgment of the time and date of a proof hearing, if required.

(d)  Service.  A motion for entry of default and a motion for default judgment must be served on the party against whom relief is sought.

(a)  Motion and Memorandum in Support.  Any motion for summary judgment pursuant to Fed. R. Bankr. P. 7056 must include:

(1)  a statement of the burden of proof;

(2)  the elements of the claim(s) that must be proved to prevail on the claim(s);

(3)  a short and concise statement, in numbered paragraphs containing only one fact each, of the material facts as to which the moving party contends there is no genuine issue to be tried;

(4)  a statement or calculation of damages, if any; and

(5)  any and all citations of law or legal argument in support of judgment as a matter of law.

(b)  Response and Memorandum in Opposition.  Responses in opposition must include:

(1)  any competing statements concerning the burden of proof, including burden shifting, together with legal authority supporting such statements;

(2)  any defenses to the elements of the claim(s) that must be proved to defeat such claim(s);

(3)  a short and concise statement of agreement or opposition, in numbered paragraphs corresponding to those of the moving party, of the material facts as to which it is contended there is a genuine issue to be tried;

(4)  a short and concise statement, in numbered paragraphs containing only one fact, of any additional facts as to which the opposing party contends are material and disputed;

(5)  a statement or calculation of damages, if any; and

(6)  any and all citations of law or legal argument in opposition to judgment as a matter of law.

(c)  Supporting Evidence.  Each statement by the movant or opponent pursuant to subdivisions (a) or (b) of this Rule, including each statement controverting any statement of material fact by a movant or opponent, must be followed by citation to admissible evidence either by reference to a specific paragraph number of an affidavit under penalty of perjury or fact contained in the record.  Affidavits must be made on personal knowledge and by a person competent to testify to the facts stated, which are admissible in evidence.  Where facts referred to in an affidavit are contained in another document, such as a deposition, interrogatory answer, or admission, a copy of the relevant excerpt from the document must be attached with the relevant passages marked or highlighted.

(d)  Admission of Facts.  Each numbered paragraph in the statement of material facts served by the moving party is deemed admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement served by the opposing party.

(e)  Responsive Pleadings.  Unless otherwise ordered by the Court, a response to a motion for summary judgment must be filed and served no later than 14 days from the date of service of the motion. 

(f)   Compliance with Federal Rules.  The statements required by this Rule are in addition to the material otherwise required by these Rules and the applicable Fed. R. Bankr. P.

(g)  Noncompliance.  The Court may deny motions that do not comply with this Rule.

 

(a)  Forms.  Unless otherwise directed by the Court, parties must use the applicable State of Colorado Judicial Branch forms whenever a provisional remedy is sought or a judgment is enforced in accordance with state law as provided in Fed. R. Bankr. P. 7064 and 7069.

(b)  Discovery in Aid of Enforcement of Judgments.  Unless otherwise ordered by the Court, a judgment creditor may not use Fed. R. Bankr. P. 2004 to collect information for use in enforcing a judgment.

Part VIII of the Fed. R. Bankr. P. and the local rules of the appellate courts govern the procedure on appeal from a judgment, order, or decree of this Court.

(a)  Definitions.  The following definitions apply in addition to those provided in 11 U.S.C. § 101 and  Fed. R. Bankr. P. 9001:

(1)  “CM/ECF” means Case Management/Electronic Case Filing.

(2)  “Creditor Address Mailing Matrix” means a list of all creditors and parties in interest in the case as provided by the debtor and maintained by the Court.

(3)  “Meet and Confer” means a conference between opposing parties initiated by the movant in an effort to resolve a dispute.  If a conference has not taken place, the movant or respondent, or their attorney, must submit a statement describing the efforts made to accomplish the required meet and confer.

(4)  “NEF” means a Notice of Electronic Filing transmitted by the CM/ECF to persons or entities registered with the Court for electronic service or notice of filed documents.

(a)  Standards of Professional Conduct.  The Local Rules of Practice of the United States District Court for the District of Colorado, Section V - Attorney Rules will apply in this Court, except as provided by order or rule of this Court.

(b)  Admission.

(1)  Attorneys Admitted to the United States District Court for the District of Colorado.  An attorney admitted and in good standing to practice in the United States District Court for the District of Colorado is qualified to practice in this Court. 

(2)  Attorneys Not Admitted to United States District Court for the District of Colorado. 

(A) Admission to the United States District Court for the District of Colorado pro hac vice is no longer available.  An attorney must comply with the Local Rules of Practice of the United States District Court for the District of Colorado, Section V – Attorney Rules (including admission) in order to appear before this Court. 

(B) Local Counsel.  When an attorney is located outside of Colorado and does not have an office in Colorado, the Court, in its sole discretion, may impose additional requirements for practice before the Court, including that such out-of-state counsel retain local counsel qualified to practice before this Court.

(c)  Scope of Representation/Employment; Limited Unbundling.

(1)  Attorney Representation of a Debtor.  Representation of a debtor by an attorney before this Court constitutes an entry of appearance for all purposes in the debtor’s bankruptcy case, except as provided in L.B.R. 9010-1(c)(2).  While the attorney remains attorney of record for the debtor in the bankruptcy case, the attorney has a duty to advise the debtor on all bankruptcy matters that arise during the course of the bankruptcy case and to represent the interests of the debtor in connection with the bankruptcy case that may affect the debtor, the debtor’s property and, in the case of reorganization proceedings, property of the estate.  An attorney may not circumvent this Rule by limiting services in his or her client engagement letter or in the attorney’s disclosures filed in accordance with Fed. R. Bankr. P. 2016.

(2)  Limited Unbundling.

(A) Adversary Proceedings.  A debtor’s attorney may expressly exclude adversary proceedings from the scope of the engagement; however, if engaged as the attorney in an adversary proceeding, an attorney may not exclude services within that adversary proceeding.

(B) Ethical Limitations.  Nothing in this Rule requires debtor’s attorney to file a paper or advance a position contrary to the attorney’s obligations under Fed. R. Bankr. P. 9011.  In those circumstances in which debtor’s attorney has fulfilled his or her obligations to advise the debtor, but has determined not to file a responsive paper or otherwise advance a position, either in agreement with the debtor or contrary to the debtor’s wishes but in compliance with Rule 9011, then debtor’s attorney must file a Notice of Advisement in substantial conformity with L.B.F. 9010-1.1, as set forth in L.B.R. 9010-1(c)(6).

(C) Nonpayment of Fees.  If the debtor fails to pay debtor’s attorney for services rendered or to be rendered, the attorney may move to withdraw his or her appearance for the debtor in accordance with L.B.R. 9010-4, except:

(i)    An attorney for the debtor may not withdraw prior to completion of the Basic Services, as defined in L.B.R. 9010-1(c)(5), except upon a showing of good cause.

(ii)  While a motion to withdraw is pending, the attorney must continue to perform for the debtor all Necessary Services, as defined in L.B.R. 9010-1(c)(4).  These services may not be limited to the Basic Services.

(3)  Ghostwriting and BPP Services by Attorney Prohibited.  An attorney may not assist any party with the preparation of a bankruptcy petition or any document required under Fed. R. Bankr. P. 1007 for filing in a bankruptcy case, without signing the document, except an attorney may provide pro bono services and advice under a nonprofit organization or Court-approved program to an individual anticipating the filing of a voluntary petition without signing any document, entering an appearance, or continuing representation of the individual in the bankruptcy case after filing.  An attorney may not serve as a bankruptcy petition preparer, as defined under 11 U.S.C. § 110(a)(1).

(4)  Necessary Services.  Necessary Services refers to all services that are necessary to represent the interests of the debtor in a particular case.

(5)  Basic Services.  Absent a Court order to the contrary, a debtor’s attorney may not move to withdraw as attorney prior to completion of the following services (the “Basic Services”):

(A) meeting with the debtor, advising the debtor, and analyzing the needs of the case;

(B) preparing a complete filing package as required by Fed. R. Bankruptcy Rule 1007 and any necessary amendments thereto;

(C) attending the debtor’s meeting of creditors pursuant to 11 U.S.C. § 341 and any continued meetings of the same;

(D) advising and assisting the debtor with any trustee requests for turnover and any audit requests from the United States Trustee;

(E) advising the debtor regarding any reaffirmation agreements; and

(F)  in a chapter 13 proceeding, a debtor’s attorney may not exclude from his or her representation the Basic Services or any Necessary Services, whether such services are required before or after the confirmation of debtor’s plan of reorganization, except as set forth in L.B.R. 9010-1(c)(2).  However, nothing in this Rule prohibits an attorney from charging the debtor additional fees for services not contemplated by the original fee agreement between the debtor and debtor’s attorney.

(6)  Notice of Advisement.  Filing a Notice of Advisement is only permitted when the attorney cannot advance a position due to ethical constraints or because the debtor has advised the attorney that the debtor does not wish to oppose the requested relief.  When required by L.B.R. 9010-1(c)(2)(B), debtor’s attorney must file a Notice of Advisement in substantial conformity with L.B.F. 9010-1.1 and serve it on the debtor and opposing counsel on or before three days prior to the objection deadline for the pending motion or request for relief.  Such notice must advise the Court and interested parties that:

(A) after consultation with the client, no further action will be taken by the attorney as to the specific matter; and

(B) whether opposing counsel may communicate directly with the debtor concerning the matter.

(7)  Sanctions for Violations; Standing.  After notice and hearing, the Court, acting sua sponte or on a motion filed by any interested party, may impose monetary or other sanctions against an attorney for violations of L.B.R. 9010-1(c), including an award of reasonable attorney fees.  Repeated violations may be grounds for prohibiting the attorney from practicing before the Court.

(d)  Disciplinary Matters.  The bankruptcy judges of this Court may refer issues relating to professional responsibility or other disciplinary matters to the Disciplinary Panel or Committee on Conduct of the United States District Court for the District of Colorado pursuant to the Local Rules of Practice of the United States District Court for the District of Colorado, or any other grievance committee of any bar or court of which the attorney in question may be a member.

(e)  Representation of a Corporation, Partnership, Other Unincorporated Organization, or Entity.  No corporation, partnership, other unincorporated organization, or entity may file a petition under Title 11 of the United States Code, or otherwise appear in cases or proceedings before this Court, unless it is represented by an attorney authorized to practice in this Court.  Where a corporate debtor is involved, the attorney representing such an entity must sign the petition and pleadings.

(f)   Entry of Appearance.  Attorneys who enter appearances in a case will be placed on the Creditor Address Mailing Matrix for the case as a party in interest and will receive only copies of notices, orders, and other documents to which parties in interest may be entitled pursuant to Fed. R. Bankr. P. 2002 or these Rules.

 

Commentary

 

L.B.R. 9010-1(c)(1), Scope of Representation:  This subsection prohibits the debtor’s attorney from unbundling legal services except as expressly permitted by subsection (c)(2).  The Rule intends to allow debtor’s attorney flexibility in setting his or her fee arrangements.  For example, an attorney may charge a flat fee for the Basic Services (defined in subsection (c)(5)) and then charge hourly thereafter or an attorney may charge hourly for all services rendered.  What this Rule prohibits, however, is charging a set fee for the Basic Services and then refusing to provide additional services as they become necessary in the case unless the debtor agrees to pay in advance for additional services, while still remaining attorney of record.  If the debtor fails to pay for additional services, the attorney may move to withdraw, but he or she cannot remain attorney of record and refuse to provide services.  Such practices (of remaining attorney of record but refusing to represent the debtor on some matters) have prevented the debtor from being able to speak directly with opposing counsel on a matter on which debtor’s attorney is not representing the debtor, such as relief from stay motions on mortgages and car loans.  Nor may an attorney agree to perform only pre-confirmation services in a chapter 13 case and then refuse to provide post-confirmation services.  As long as the attorney remains attorney of record, the attorney must provide all Necessary Services until he or she has obtained a Court order allowing withdrawal.  Nothing in this Rule, however, is intended to require debtor’s attorney to perform legal services for the debtor that are unconnected with the bankruptcy case.  For example, this Rule does not require the attorney to advise the debtor in connection with a pending divorce proceeding or a real estate transaction, unless the debtor and the attorney have expressly contracted to expand the scope of the attorney’s services to provide such additional services.  In summary, while debtor’s attorney remains attorney of record, he or she must file either a response or a Notice of Advisement in substantial conformity with L.B.F. 9010-1.1 for every motion or application filed that may impact the debtor, debtor’s property, or, in a reorganization case, property of the estate.  Debtor’s attorney must also perform all Necessary Services.

 

L.B.R. 9010-1(c)(4), Necessary Services:  Whether a service is necessary refers to whether the circumstances of the case give rise to the need for the services.  For example, if a creditor files a motion for relief from the automatic stay, then the debtor is required to file a response if the debtor wishes to oppose the relief.  In this instance, responding to the motion is a Necessary Service.  On the other hand, if no such motion is filed, then the service of defending against a stay relief motion is not a Necessary Service in that particular case.  In some cases, the debtor’s home may be encumbered by judicial liens.  If so, then debtor’s attorney must advise the debtor and, if grounds exist, file a motion to avoid such liens.  Not every case will require lien avoidance motions, but when such services are applicable to the particular case, then they are deemed Necessary Services.  Similarly, if the debtor wishes to reaffirm a particular debt, then debtor’s attorney must advise the debtor as to whether reaffirmation is in the debtor’s best interest or would impose an undue hardship on the debtor and his or her dependents.  Nothing in the definition of Necessary Services, however, should be construed to require an attorney to perform services for the debtor that would cause the attorney to violate his or her ethical obligations.  If the attorney has ethical constraints, then the attorney should file a Notice of Advisement in substantial conformity with L.B.F. 9010-1.1 pursuant to subsection (c)(2)(B).

With the approval of the Court, a law student may, under the supervision of an attorney admitted to practice in this Court, appear in that matter on behalf of any party who has consented in writing.  

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