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Local Rules

(a)  Withdrawal of Appearance.  An attorney who has entered an appearance in a case or proceeding may seek to withdraw on timely motion showing good cause.  Withdrawal is only effective upon Court order after proper service of the motion and notice.  Motions filed on the eve of a hearing or deadline may not be deemed timely.

(1)  Motion Requirements.  A motion to withdraw must state the reasons for withdrawal unless the statement would violate the Colorado Rules of Professional Conduct.  Good cause for withdrawal may include an assertion that the client has failed to make timely payments for post-petition services, provided that the attorney has completed the Basic Services, defined in L.B.R. 9010-1(c)(5).  In addition, the Motion must include attorney’s statements or advice to the client and/or the Court that:

(A) the attorney wishes to withdraw;

(B) the Court retains jurisdiction;

(C) the client’s last known address and telephone number;

(D) the client has the burden of keeping the Court informed of the mailing address where notices, pleadings or other documents may be served;

(E) the client has the obligation either to prepare personally for any hearing or trial in a contested matter or adversary proceeding or to hire another attorney to prepare for any future hearing or trial;

(F)  the client is responsible for complying with all Court orders and time limitations established by any applicable statute, rule, or the Rules.

(G) if another attorney is not hired, the client has the obligation to decide whether to respond to any motion that may be filed in the case after the withdrawal of the attorney, to file a timely response, and to respond to any Court orders requiring the client to respond;

(H) if the client fails or refuses to meet these burdens, the client may suffer sanctions, including default or dismissal of the pending contested matter, adversary proceeding, or the client’s bankruptcy case in some circumstances;

(I)   the dates of any pending matters and filing deadlines, including trials and hearings on contested matters or adversary proceedings, and a warning that such matters will not be delayed or affected by the withdrawal of the attorney;

(J)  service of process may be made upon the client at the client’s address in the Court’s database;

(K) where the withdrawing attorney’s client is a corporation, partnership, or other legal entity, that such entity cannot appear without an attorney admitted to practice before this Court, and absent prompt appearance of the substitute attorney, pleadings, motions, and other documents may be stricken, and default judgment or other sanctions may be imposed against the entity including dismissal or conversion of its case if it is a debtor; and

(L)  the client or other parties in interest have the right to object to the proposed withdrawal of the attorney by filing with the Court an objection to the attorney’s motion to withdraw within seven days after filing of the notice.

(2)  Notice Requirements.  Any attorney seeking to withdraw as attorney of record must make a reasonable effort to give actual notice to the client.  In addition, the attorney must give notice in accordance with L.B.R. 9013-1 to the client, United States Trustee, trustee, and to all parties who have entered an appearance in the case or proceeding.  The notice must include notice of an opportunity to object and provide an objection deadline of no less than seven days from the date of filing of the motion.  Both the motion and notice must be filed with the Court.

(b)  Substitution of Attorney.  Any client who seeks to have a replacement attorney enter an appearance in a case or proceeding in which there is already an attorney of record for the client must make reasonable efforts to obtain a signature of an existing attorney in substantial conformity with L.B.F. 9010-4.1.  If the client is unable to obtain the signature of the existing attorney on L.B.F. 9010-4.1, then the replacement attorney must file a notice of substitution in substantial conformity with L.B.F.  9010-4.2. With either form, the form must be filed with the Court and notice given to the client, United States Trustee, trustee, and all parties who have entered an appearance in the case or proceeding.  The substitution will become effective upon filing.  The Clerk is authorized to terminate the involvement of the former attorney upon the filing of either form of substitution.  Nothing in this Rule will relieve the replacement attorney of the obligation to comply with 11 U.S.C. § § 327, 526, and Fed. R. Bankr. R. 2016, to the extent applicable.

 

Commentary

 

L.B.R. 9010-4(b) has been added to address circumstances in which the client is unable to obtain the former attorney’s signature for a substitution of attorney in circumstances such as the death or disbarment of the former attorney.  Nevertheless, every attorney of record has an obligation to assist the client with substitution of attorney when the client requests substitution.  If exigent circumstances require an immediate substitution of attorney, L.B.F. 9010-4.2 may be utilized, but exigent circumstances should not be construed so broadly as to cover new attorney’s inattention to the Rule’s requirements.  Every reasonable effort should be made to obtain former attorney’s signature on L.B.F.  9010-4.1.

(a)  Signatures.  Any electronically filed document must include the electronic signature of the electronic filer.

(b)  Retention of Original Signatures.  Electronic filers may file all electronic documents with electronic signatures.  Documents that require the signature of the debtor must be maintained by the electronic filer with the original signature(s) in paper form for two years following the expiration of all time periods for appeals after entry of a final order terminating the case or proceeding.  Documents required to be retained by attorneys with actual signatures of the debtor include all petitions, statements, schedules, lists, and amendments thereto.

(c)  Contact Information.  All attorneys and unrepresented parties must ensure that all filed documents include their name, address, telephone number, email address, and bar number, if applicable, below their signature line, and must promptly notify the Court of any changes to this information by filing a notice of change of contact information.  

(a)  Seeking Relief.

(1)  Motion, Application or Other Request for Relief.

(A) Documents to be Served.  When a statute, rule, or Court order requires service of a motion or other pleading, service must include copies of the motion, including exhibits, notice, and any proposed order.

(B) Service of Documents.  Service of the documents in (a)(1)(A) must be made on those parties against whom relief is sought pursuant to Fed. R. Bankr. P. 7004 and 9014, or as otherwise required by statute, rule, or Court order.

(C) Proposed Orders.  All motions, applications, or other requests for relief must be accompanied by a proposed order on a separate document.

(2)  Notice.  When a statute, rule, or Court order requires “notice and a hearing” or other similar phrase, the following applies:

(A) Form of Notice.  The movant must use the form of notice in substantial conformity with L.B.F.  9013-1.1. The notice must contain a specific statement describing the requested relief or intended action to be taken, in sufficient detail to meaningfully inform the parties receiving the notice.

(B) Notice of Deadline to File an Objection and Request for Hearing.  The notice must state the specific date of the deadline to object and request a hearing, which must be a date on which the Court is scheduled to be open for business, and not just the number of days within which to object.

(C) Notice to All.  For notice to all creditors and parties in interest, the movant must use, at a minimum, all of the addresses contained on the most current version of the Creditor Address Mailing Matrix.

(3)  Service.  In addition to providing notice of a motion, the movant must also serve the motion in the manner required by Fed. R. Bankr. P. 7004 whenever the interests of a particular creditor or other party in interest is directly affected by the proposed relief.

(4)  Certificate of Service.  When a statute, rule, or order requires a party to serve a document, the party must file a certificate of service specifically identifying who was served, when they were served, and the method of service.  The certificate of service should be filed with the relevant document, but not later than three days after the filing of the document.  Movant must use the form of certificate of service in substantial conformity with L.B.F.  9013-1.2.

(5)  When Notice is Not Required.  Whenever a movant requests relief that does not require a specific notice and deadline for objections:

(A) Presumptive Response Time.  A party who wishes to oppose the requested relief must file a response or objection within 14 days from service of the motion.

(B) Ex Parte Relief.  The Court may enter an order on an ex parte basis.  Whenever the Court grants relief on an ex parte basis, any interested party may move for reconsideration within 14 days from the date of the order.  The heightened standard of Fed. R. Bankr. P. 9023 will not apply when the motion seeks reconsideration of an ex parte ruling.  Service of a motion to reconsider must comply with L.B.R. 9023-1.

(b)  Objections and Requests for Hearing.  Objections and requests for hearing must be filed with the Court and a copy thereof must be served upon attorney for the movant (or movant, if unrepresented) on or before the objection deadline set forth in the notice.  Objections and requests for hearing must clearly specify the grounds upon which they are based, including the citation of supporting legal authority, if any.  The Court will not consider general objections.  Failure of the responding party to timely file a written opposition may be deemed a waiver of any opposition to granting of the motion, the relief requested, or the action to be taken.

(c)  Certificates Requesting Court Action.

(1)  Movant’s Certificate of Non-contested Matter.  In the event that no objection is filed or a stipulation has been reached, the movant should, not earlier than two days following the objection deadline set forth in the notice, file a Certificate of Non-contested Matter and Request for Entry of Order, L.B.F.  9013-1.3. The Certificate of Non-contested Matter must be verified by the movant, or movant’s attorney, and include all information and docket numbers required by L.B.F. 9013-1.3.

(2)  Movant’s Certificate of Contested Matter.  In the event that an objection is filed, the movant should, not earlier than two days following the date to object specified in the notice, file a Certificate of Contested Matter and Request for Hearing, L.B.F.  9013-1.4.  The Certificate of Contested Matter must be verified by movant or movant’s attorney and include all information and docket numbers required by L.B.F. 9013-1.4.  A copy of the Certificate of Contested Matter must be served on each respondent.

(3)  Respondent’s Certificate of Contested Matter.  Although the movant bears the burden of timely filing a Certificate of Contested Matter, the respondent may, not earlier than seven days following the date to object specified in the notice, file a Certificate of Contested Matter and Request for Hearing, L.B.F.  9013-1.4. The Certificate of Contested Matter must include all information and docket numbers required by L.B.F. 9013-1.4.  A copy of the Certificate of Contested Matter must be served on the movant and any other respondent.

(d)  Hearing.

(1)  Hearing.  Upon the filing of the Certificate of Contested Matter, the Court may issue a notice of the date, time, and place of the hearing.  The Clerk will serve the notice on the movant, respondent, and other parties as the Court may direct.

(2)  Evidentiary or Non-Evidentiary Hearing.  The notice of hearing will advise the parties whether the hearing will be an evidentiary or non-evidentiary hearing.

(3)  Expedited Hearing.  A motion for expedited hearing may be filed pursuant to Fed. R. Bankr. P. 9006(c) and L.B.R. 2081-1.  Such request must be filed as a separate motion.

(e)  Defective or Deficient Motion.  Failure to comply with the motion, notice and service requirements of the Fed. R. Bankr. P. or these Rules may result in the denial of your motion, application, or other request for relief.

(f)   Non-Prosecuted Motions.  Any contested matter unresolved at the time the bankruptcy case is closed is moot and will be deemed denied for lack of prosecution. 

(g)  Application in Contested Matters.  Discovery disputes in contested matters, including disputes regarding Rule 2004 motions, are subject to the requirements of L.B.R. 7026-1(d). 

 

Commentary

 

2017 Addition of 9013-1(a)(3): There is a difference between giving “notice” of a motion and “serving” a party with a motion.  Generally speaking, all creditors should receive a general notice so that they have an opportunity to provide input on the proposed action, but parties whose individual rights may be directly impacted by the motion must be “served” with a copy of the motion and notice.  For example, if the trustee wants to sell the debtor’s business “free and clear of any liens” (meaning the purchaser will acquire the property free of any pre-existing liens against the property), then the entire creditor body should be given notice of this proposed action, but in addition those creditors who hold liens of record against the property must be “served” with the motion.  Giving notice may be as simple as sending the notice in the mail addressed to the post office box of the creditor.  “Serving” a creditor whose lien rights may be impacted by the motion may require sending the notice, the motion, and all of its attachments to the creditor’s registered agent or a named officer of the company.  Fed. R. Bankr. P. 7004 governs the manner in which a party must be served.  This Rule refers to service of a complaint but it also applies to motions impacting individual party rights.  The manner of service required under this Rule differs depending on the identity of the party.  Governmental agencies must be served differently than a private company.  An “insured depository institution,” which includes many banks, requires a completely different form of service.  The purpose behind these technical rules governing service is to ensure that the motion and notice will be placed into the hands of decision makers more quickly than merely mailing it to a post office box.

(a)  Assignment of Matters to Mediation.  The Court may refer a matter to mediation sua sponte, upon written stipulation, or upon motion by a party or the United States Trustee.  Unless otherwise ordered by the Court, participation in mediation is voluntary.

(b)  Deadlines.  Unless otherwise ordered by the Court, the referral of a matter to mediation does not operate to stay, postpone, or extend any deadlines.

(c)  Report of Mediation.  As soon as practicable after the conclusion of the mediation, the mediator must file with the Court a Report of Mediation, advising only.

(1)  the date(s) that the parties conducted the mediation;

(2)  the parties in attendance at the mediation; and

(3)  whether the parties resolved the matter.

(a)  Limitations.  A party, the spouse of a party, or an attorney in a case will not be accepted as a personal surety on any bond filed in that case.

(b)  Power of Attorney.  If the surety on a bond is an approved surety by the United States Department of Treasury, a power of attorney showing the authority of the agent signing the bond must be filed with the Court.

(a)  Electronic Service.  

(1)  Attorney registration in CM/ECF constitutes consent to electronic service of all documents.

(2)  Unrepresented parties may consent to electronic service of all documents in either a bankruptcy case or an adversary proceeding by filing a completed form in substantial conformity with L.B.F. 9036-1.1 or L.B.F. 9036-1.2, as applicable.   

(3)  When a document is filed in CM/ECF, it is served electronically.  The time to respond or reply will be calculated from the date of electronic service, regardless of whether other means of service are used.  The Notice of Electronic Filing (“NEF”) generated by CM/ECF reflects the parties served. 

(b)  NEF Does Not Constitute Service.  Electronic transmission of a NEF does not constitute service or notice of the following documents that must be served non-electronically:

(1)  service of a sealed document;

(2)  service of a complaint and summons in an adversary proceeding under Fed. R. Bankr. P. 7004;

(3)  service of a subpoena issued under Fed. R. Bankr. P. 9016;

(4)  notice of the meeting of creditors required under Fed. R. Bankr. P. 2002(a)(1); and

(5)  where other means of service are otherwise required under any applicable statute, rule, or Court order.

(c)  Service on non-CM/ECF Users.  A person or entity that is entitled to service of a document, but is not an electronic filer or one who has consented to electronic service, must be served as otherwise provided by the Fed. R. Civ. P., Fed. R. Bankr. P. and these Rules.

(d)  Case Specific Service.  Until an attorney enters an appearance in a specific case, service on the attorney does not constitute service on any party.

It is the responsibility of any party filing documents, including proofs of claim, with the Court, not the Clerk, to redact social security numbers and other personal identifiers such as dates of birth, financial account numbers, and names of minor children.  This includes copies of employee payment advices, tax returns, or other financial documents that may be filed or attached as an exhibit to documents filed with the Court.  In the event a petition or other document is tendered for filing that bears the entire social security number of the debtor or other personal identifiers, the Clerk will file said petition or document as tendered without taking any action to redact the first five digits of the social security number or personal identifiers.

(a)  Witnesses and Exhibits.  Unless otherwise ordered by the Court or as set forth in the Fed. R. Bankr. P. and these Rules, the following requirements regarding witnesses and exhibits apply in all adversary proceeding trials and evidentiary hearings for contested matters.  Any list of witnesses and exhibits must be in substantial conformity with L.B.F. 9070-1.1.

(b)  Default Deadline to File Lists of Witnesses and Exhibits.  Parties intending to introduce evidence at any contested hearing must file a list of witnesses and exhibits no later than five days prior to the hearing. 

(c)  Marking of Exhibits.  Each exhibit must be individually marked for identification prior to the hearing.  Plaintiff/movant/claimant must mark exhibits numerically, and defendant/respondent/objector must mark exhibits alphabetically.  Multipage exhibits must be individually paginated/numerated for ease of reference.

(d)  Exchanging Exhibits.  Copies of marked exhibits must be exchanged with opposing attorney or party, but not filed with the Court, no later than five days prior to the hearing.  Parties may exchange marked exhibits in any manner appropriate under the circumstances of the case, including exchanging copies of marked exhibits in paper or by electronic means.

(e)  Hearing Requirements.

(1)  Paper Exhibits and Exhibit Notebooks.  If paper exhibits are to be used, parties must provide an original plus two copies of the exhibits intended to be offered at the hearing to the Law Clerk or Courtroom Deputy and one copy to each opposing attorney or party before the hearing begins.  Parties granted permission to appear by telephone must file such documents.  Original exhibits are to be used by the witnesses.  Exhibits should be placed in a binder and indexed substantially in the form of L.B.F. 9070-1.1.

(2)  Electronic Exhibits.  All courtrooms are equipped for electronic evidence presentation, and any party may elect to utilize the available presentation systems for presenting evidence.  Parties intending to use technology in the courtroom must comply with current courtroom technology procedures.  If electronic exhibits are to be used, parties must provide two USB drives with electronic copies of all marked exhibits intended to be offered at the hearing to the Court before the scheduled court proceeding begins.  Parties granted permission to appear by telephone must file such documents.

(3)  Post-Hearing Requirements.  Upon the conclusion of the trial or hearing, the attorneys or parties must retain custody of their respective original exhibits and deposition transcripts until all need for the exhibits and deposition transcripts has terminated and the time for appeal has expired, or all appellate proceedings have been terminated, plus 60 days.  In the event an appeal is filed, the attorneys or parties must provide their exhibits to the appellate court pursuant to the appellate court’s direction.

 

Commentary

 

See also L.B.R. 2081-3 and 4001-1 providing different procedures for the exchange of witness and exhibit lists in certain circumstances.  

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