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Chief Judge Brenda Moody Whinery

 

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Presides in Tucson Courtroom 446


 

NOTICE - REDUCING EXPOSURE TO CORONAVIRUS (COVID-19): 

In accordance with General Order 20-3 signed March 18, 2020 and extended on September 1, 2020, interested parties shall appear via videoconference or telephone for all hearings scheduled through December 31, 2020. Consult the pleading that set the hearing to determine how to appear for the hearing. Please confirm your appearance by sending an email to Courtroom Deputy Rebecca Volz, at Rebecca_Volz@azb.uscourts.gov, at least three (3) business days prior to your hearing. The email is to include the full name of the person appearing and that person's relationship to the case, the case name, and the case number.  

 

I. GENERAL INFORMATION

A. COMPLIANCE WITH LOCAL RULES  

Counsel are expected to comply with all applicable Local Rules, Bankruptcy Rules and the Code. Particular attention should be paid to the following Local Rules:
       • 1015-1  -  Motions for joint administration
       • 2084-25  -  Sale of property or incurring new debt (Chapter 13 only)
       • 4001-1  -  Stay relief motions
       • 6004-1  -  Asset sales
       • 9004-1(e)  -  Hearing dates within captions
       • 9013-1(d)  -  Orders to accompany ex parte motions
       • 9013-1(j)  -  Notices to accompany motions 

B. INQUIRIES REGARDING THE ENTRY OF PLEADINGS ON THE DOCKET

Inquiries regarding the entry of pleadings on the docket should be directed to the Office of the Clerk of the Court at (602) 682-4000.

C. LODGING ORDERS

Uploaded orders should relate to the initiating motion or stipulation and not the notice of lodging or the certificate of service and no objection. Counsel is required to file the Notice of Lodging Proposed Order pursuant to Local Rule 9022-1.

D. INQUIRIES REGARDING THE STATUS OF ORDERS

Unless otherwise instructed by the Court, please allow 10 business days to pass before inquiring about the status of an uploaded order. For questions regarding the status of lodged orders, contact Alicia Johns at 520.202.7556 or  Alicia_Johns@azb.uscourts.gov.

E. ACCELERATED OR EMERGENCY MOTIONS

The Court does not attempt to “second guess” an attorney’s decision to move for an emergency hearing. In such an instance, the Court will usually set the matter promptly.  The Court urges counsel to consider the totality of the circumstances before filing such a request.

A party requesting an accelerated hearing pursuant to Local Rule 9013-1 must email a docketed copy of the Motion to Expedite Hearing to the courtroom deputy, Rebecca Volz at Rebecca_Volz@azb.uscourts.gov, and the law clerk, Hannah Willett at Hannah_Willett@azb.uscourts.gov.  The Court will review the request and determine whether to set the matter on an expedited basis or set the matter for hearing in the normal course (within approximately 35 days).  If an accelerated or emergency hearing is granted, the courtroom deputy will inform the movant of the expedited hearing date and time and the proposed order shall be lodged thereafter.  The order setting the expedited hearing and notice of hearing are to include specific dates by which responsive pleadings are to be filed and are to be served by the movant upon all interested parties. 

F. LAST MINUTE FILINGS 

Where time is short, i.e., less than 48 hours, the parties shall send copies of filed pleadings to Judge Whinery's law clerk, Hannah Willett, via email at Hannah_Willett@azb.uscourts.gov.  The privilege to email documents to chambers should be used sparingly. All emails should be received no later than 4:00 p.m. on the business day prior to the hearing.

G. CONTESTED MOTIONS OR APPLICATIONS EXCEEDING 50 PAGES, INCLUDING MOTIONS FOR SUMMARY JUDGMENT 

If a motion, pleading or application and its exhibits exceed 50 pages, including motions for summary judgment, the Court may require a hard copy.  Contact the courtroom deputy via email at least 14 days prior to the hearing date, if non-emergency, or as soon as possible before an accelerated or emergency hearing, for instructions regarding hard copies. 

H. COURT MINUTE ENTRIES 

The audio and minute entries for all court proceedings are available on the docket. Parties that did not attend a hearing may listen to the audio and review the minute entries on the docket.

I. OBTAINING TRANSCRIPTS

In order to obtain a transcript from a hearing for a Tucson or Yuma case, contact Alicia Johns, ECR Operator, via e-mail at Alicia_Johns@azb.uscourts.gov.

In order to obtain a transcript from a hearing for a Phoenix case, contact the ECR Operators via email at azbml_phx_ecr@azb.uscourts.gov or by phone at (602) 682-4200. 

 

II. HEARINGS AND APPEARANCES

A. TO OBTAIN A HEARING FOR ANY MATTER

The moving party may request a hearing date by contacting the courtroom deputy, Rebecca Volz, via email at Rebecca_Volz@azb.uscourts.gov.  The request must be accompanied by the ECF filing receipt or docket entry number for the pleading that is the subject of the hearing.  Counsel will then be provided with a hearing date and time.  The moving party MUST give notice of the hearing to all interested parties and file a certificate of service.  The matter will not be placed on calendar until counsel provides a copy of the ECF filing receipt for the Notice of Hearing via email to the courtroom deputy. The calendar is posted to the Court’s web site at http://www.azb.uscourts.gov/court-calendars every Friday at 8:30 AM for the following week.     

B. REQUESTS TO CONTINUE OR VACATE MATTERS SET FOR HEARING

CHAMBERS BEGINS PREPARING FOR SCHEDULED HEARINGS AT LEAST 7 DAYS PRIOR.  IF A REQUEST TO VACATE OR CONTINUE A HEARING IS RECEIVED WITHIN 7 DAYS OF THE HEARING, THE HEARING MAY PROCEED AS SCHEDULED DESPITE THE PARTIES’ REQUEST TO VACATE OR CONTINUE THE MATTER.  

IF PARTIES INTEND TO APPEAR ONLY TO REQUEST A CONTINUANCE OR VACATE A MATTER, PLEASE INFORM THE COURTROOM DEPUTY VIA EMAIL AS SOON AS POSSIBLE.   

1. REQUESTING A CONTINUANCE

a. CONTINUING AN UNCONTESTED MATTER

An uncontested matter* which is set for hearing may be continued by the movant.  The movant shall email the courtroom deputy for a continued hearing date.  The email shall indicate that the matter is uncontested.  If the request to continue is granted, the courtroom deputy will email the movant with a new hearing date and time.  The movant must file and serve a Notice of Continued Hearing.  If the matter being continued is one that requires notice to the entire mailing matrix, the movant is responsible for noticing the entire mailing matrix.  Parties should be prepared to appear at any scheduled hearing until the Notice of Continued Hearing has been docketed.

b. CONTINUING A CONTESTED MATTER

A contested matter* which is set for hearing may be continued by the parties via Stipulation to Continue.  The parties shall file the stipulation and then one of the parties shall email the courtroom deputy to request a continued hearing date.  If the request to continue is granted, the courtroom deputy will email the party with a new hearing date and time.  One of the parties must file and serve a Notice of Continued Hearing.  If the matter being continued is one that requires notice to the entire mailing matrix, the parties are responsible for noticing the entire mailing matrix.  Parties should be prepared to appear at any scheduled hearing until the Notice of Continued Hearing has been docketed.

2. VACATING A HEARING

a. WITHDRAWAL

The movant may vacate a hearing by filing a Notice of Withdrawal and informing the courtroom deputy via email that the motion is no longer pending because it has been withdrawn.  

b. STIPULATION

If a matter is resolved via stipulation, the stipulation and/or the order approving such stipulation shall include language vacating any scheduled hearings.  

c. STIPULATION TO VACATE HEARING

A contested matter* which is set for hearing may be vacated by the parties via Stipulation to Vacate.  The stipulation shall indicate why the matter is being vacated (i.e. if the matter has been resolved and, if so, how it has been resolved, or if the parties intend to vacate the matter subject to call).  Once the stipulation has been filed, one of the parties shall notify the courtroom deputy via email of the stipulation.  The courtroom deputy will inform the parties whether the hearing will proceed as scheduled or whether the hearing will be vacated.  Parties should be prepared to appear at any scheduled hearing until receiving notice from the courtroom deputy that the hearing has been vacated.

*An "uncontested matter" refers to any matter where no objecting pleadings have been filed. 
  A "contested matter" refers to any matter where an objection or limited objection etc. has been filed. 

C. APPEARANCE INFORMATION

The Order Setting Hearing, Notice of Hearing and corresponding docket entry, minute entry setting hearing, and/or the calendar posted to the Court’s website will specify how an interested party may appear for a specific hearing. The calendar is posted to the Court's website at http://www.azb.uscourts.gov/court-calendars every Friday at 8:30 a.m. for the following week.

1. APPEARING IN PERSON

Any interested party may appear in person at the courtroom listed in the Order Setting Hearing, Notice of Hearing and corresponding docket entry, minute entry setting hearing, and/or the calendar posted to the Court’s web site. If more than one courtroom is listed, then the additional courtrooms will be connected by video (“Video Courtrooms”). Interested parties may appear in any of the courtrooms listed.

APPEARANCES FROM VIDEO COURTROOMS ARE ONLY PERMITTED FOR EVIDENTIARY HEARINGS OR TRIALS IF AND AS INDICATED IN THE ORDER SETTING THE EVIDENTIARY HEARING OR TRIAL. 

It is the Court's preference that attorneys and any interested parties appear in person at their local courtroom when in person appearances are available.                                                  

Attorneys located in Pima County are to appear in the Tucson courtroom, attorneys located in Maricopa County are to appear in the assigned Phoenix courtroom, and attorneys located in Yuma County are to appear in the Yuma courtroom when those courtrooms are available. When in person appearances are available, counsel may only appear remotely with permission, in emergency situations, or when such counsel’s local courtroom is unavailable. Parties may request permission to appear remotely by sending an email to the courtroom deputy, Rebecca Volz, at Rebecca_Volz@azb.uscourts.gov, at least 3 business days prior to the scheduled hearing, preferably at the time the moving papers are filed. The email requesting permission is to include the full name of the person who is requesting to appear remotely and that person’s relationship to the case, the reason for the request, the case name, the case number, and that person’s contact information should the Court need to contact them with any questions or concerns.

Attorneys and any interested parties located outside Pima County, Maricopa County, and Yuma County may request permission to appear remotely for routine matters. Permission to appear remotely is not guaranteed and does not carry forward to future hearings.

INDIVIDUALS OPTING TO APPEAR REMOTELY WHEN IN PERSON APPEARANCES ARE AVAILABLE ARE CAUTIONED THAT THEY DO SO AT THEIR OWN RISK. HEARINGS WILL NOT BE RESCHEDULED DUE TO POOR INTERNET CONNECTIVITY AND/OR POOR CALL QUALITY, ETC.

a. COURT LOCATIONS FOR IN PERSON APPEARANCES

TUCSON 
James A. Walsh Federal Courthouse
38 S. Scott Avenue, Courtroom 446
Tucson, AZ 85701

PHOENIX 
US Courthouse and Federal Building
230 N. 1st Avenue, Courtroom 301
Phoenix, AZ 85003

                    OR

                    US Courthouse and Federal Building
                    230 N. 1st Avenue, Courtroom 602
                    Phoenix, AZ 85003

YUMA 
John M. Roll United States Courthouse
98 W. 1st Street, Courtroom 1
Yuma, AZ 85364

2. APPEARING REMOTELY

Any interested party may appear remotely via videoconference when that option is available. Any interested party may appear remotely via telephone when that option is available. Please consult the Order Setting Hearing, Notice of Hearing and corresponding docket entry, the minute entry setting the hearing, and/or the calendar posted to the Court’s website to determine if remote appearances are permitted for a specific hearing. Alternatively, any interested party may request permission to appear remotely by contacting the courtroom deputy via email pursuant to section II.C.1 above.                  

REMOTE APPEARANCES ARE ONLY PERMITTED FOR EVIDENTIARY HEARINGS OR TRIALS IF AND AS INDICATED IN THE ORDER SETTING THE EVIDENTIARY HEARING OR TRIAL.

a. VIDEOCONFERENCE APPEARANCES

Interested parties are to consult the Order Setting Hearing, Notice of Hearing and corresponding docket entry, the minute entry setting the hearing, and/or the calendar posted to the Court’s web site to determine if appearances by videoconference are available for a specific hearing. The Videoconference Hearing Guidelines have been implemented by this Court and will be applicable to all videoconference hearings. 

The hearing ID, passcode, and hearing link for a videoconference hearing will be listed in the Order Setting Hearing, the Notice of Hearing, or the minute entry setting the hearing. In some instances, interested parties will also receive an email with the hearing ID, passcode, and hearing link. Each interested party is to confirm their videoconference appearance by sending an email to the courtroom deputy, Rebecca Volz, at Rebecca_Volz@azb.uscourts.gov, at least three (3) business days prior to the scheduled hearing, preferably at the time the moving papers are filed. The confirmation email is to include the full name of the person appearing and that person’s relationship to the case, the case name, the case number, and that person’s contact information should the Court need to contact them with any questions or concerns.

1. PROCEDURE FOR VIDEOCONFERENCE APPEARANCES

Attorneys and any other interested parties who wish to enter an appearance or address the Court during a videoconference hearing (“Participants”) are to follow the instructions for Participation in a Videoconference Hearing set forth in the Videoconference Hearing Guidelines. Interested parties who wish to monitor the videoconference hearing, without entering an appearance or addressing the Court, are to follow the instructions for Monitoring or Listening to a Videoconference Hearing set forth in the Videoconference Hearing Guidelines

b. TELEPHONIC APPEARANCES

Interested parties are to consult the Order Setting Hearing, Notice of Hearing and corresponding docket entry, the minute entry setting the hearing, and/or the calendar posted to the Court’s web site to determine if appearances by telephone are available for a specific hearing. 

The telephone number and access code will be listed in the Order Setting Hearing, the Notice of Hearing, or the minute entry setting the hearing. Each interested party is to confirm their telephonic appearance by sending an email to the courtroom deputy, Rebecca Volz, at Rebecca_Volz@azb.uscourts.gov, at least three (3) business days prior to the scheduled hearing, preferably at the time the moving papers are filed. The confirmation email is to include the full name of the person appearing and that person’s relationship to the case, the case name, the case number, and that person’s contact information should the Court need to contact them with any questions or concerns.

1. PROCEDURE FOR TELEPHONIC APPEARANCES

To ensure the quality of the record, callers are not permitted to use speakerphones. Please note that the hold music ceases once the conference line is connected to the courtroom. Further, when there is no music playing, please be aware that the conference call is connected to the electronic recording equipment and is being broadcast through the courtroom’s speakers. Callers may hear "airspace" until hearings begin. Once hearings begin, cases will be called, and the judge will request appearances and direct the manner in which each hearing proceeds. In order for the Court to preserve the record, callers are to identify themselves each time they speak. Callers may disconnect from the call once their hearing has been completed.

 

III. SPECIFIC PROCEDURES FOR ALL CHAPTERS

A. PRELIMINARY HEARINGS FOR LIFT STAY MOTIONS

If a response is filed, the moving party is responsible for requesting a preliminary hearing regarding the lift stay motion by contacting the courtroom deputy via email.  Once a preliminary hearing date and time has been obtained, the movant shall notice the hearing out and forward a copy of the ECF receipt for the Notice of Hearing to the courtroom deputy for calendaring. 

At the preliminary hearing, it is generally the Court’s practice to set a “one minute” final hearing to allow the parties time to negotiate a settlement. If the matter is not resolved by the “one minute” final hearing, the Court will promptly set an evidentiary hearing if requested.

If no response is filed, the creditor may lodge a form of order. However, the order is not to include excessive “self-serving” language which is intended to deprive other interested parties of valuable rights. Examples of such overreaching language are:
     • Waivers of the automatic 14-day stay of FRBP 4001(a)(3);
     • Abandonment language (abandonment requests require notice on the entire creditor body pursuant to 11 U.S.C. § 554);
     • Orders that require the debtors to surrender the collateral to the creditor (this is what state law provisional remedies are for!);
     • Annulment of the stay (unless this remedy actually applies);
     • Voluminous findings of fact (if an evidentiary hearing is needed, then the Court can prepare findings).

B. BAR DATE/NEGATIVE NOTICE 

In addition to the bar date procedures established by the Local Rules, and unless the Court orders otherwise, the moving party may use a twenty-one (21) day bar date notice for the following matters:
     • motion to extend Debtor’s exclusivity period (Chapter 11 only);
     • motion for entry of discharge, entry of final decree and for order to close case (Chapter 11 only).

The party using the negative notice/bar date procedure must proceed pursuant to Local Rule 2002-2.

If an objection to the motion or application is filed, the MOVANT is responsible for obtaining a hearing date from the courtroom deputy and upon receiving a hearing date, shall give notice of the hearing to all interested parties and file a certificate of service. 

C. ORDERS FOR EMPLOYMENT OF PROFESSIONALS

The following language must be included in all orders for employment of professionals:

Approval of employment of a professional person DOES NOT automatically approve any fee arrangement set forth in the application or any attachments thereto. No fees are pre-approved by the Court. Any request for a professional fee must be made separately, by a detailed application supporting the request, notice must be given to creditors and other parties-in-interest, and the Court must have an opportunity to review any objections which any party may have. The Court may also consider the application in the absence of any objections, and may adjust the fees according to the merits of the particular case. 11 U.S.C. §§ 327, 328, 329, 330, and 331. 

D. ORDERS FOR LOAN MODIFICATIONS

In addition to the requirements set forth in the Local Rules, any order for a loan modification shall also include the following language:

IT IS FURTHER ORDERED that, by granting the Motion, this Court expressly makes no findings, conclusions or rulings regarding the legal validity of the terms of the subject loan modification agreement.

E. DISCOVERY DISPUTES

The parties are to notify the law clerk, Hannah Willett at Hannah_Willett@azb.uscourts.gov, and the courtroom deputy, Rebecca Volz at Rebecca_Volz@azb.uscourts.gov, if a discovery dispute remains unresolved after the parties have engaged in personal consultation pursuant to Local Rule 9013-1(e). The parties will be instructed how to proceed thereafter. An informal conference with the judge will be scheduled or the parties will be instructed to file their discovery related motions.

    

IV. SPECIFIC PROCEDURES FOR CHAPTER 11

A. FIRST DAY MOTIONS POLICIES

Parties are to notify chambers upon the filing of first day motions via e-mail at Rebecca_Volz@azb.uscourts.gov and Hannah_Willett@azb.uscourts.gov.  The Court may require hard copies of first day motions and proposed orders, including all exhibits, if the documents are voluminous. Contact the courtroom deputy via email as soon as possible before an accelerated or emergency hearing for instructions regarding the provision of hard copies.   

B. CASH COLLATERAL 

Cash collateral matters are the most critical “first day” or early motions. These matters will be set as quickly as possible, sometimes on the same day. The moving party should provide a proposed BUDGET (short-term) for the secured creditor’s review. The parties should confer on the budget, if possible, prior to the hearing. Orders concerning cash collateral will be entered promptly.

C. CASE MANAGEMENT ORDER 

Upon the filing of a new Chapter 11 case, a “Case Management Order” will be issued which sets the date for the Case Management Status Hearing. Counsel is to notice out the hearing. Counsel and the Court shall address all issues set forth in the Order at the hearing.

D. ORDERS FOR EMPLOYMENT OF PROFESSIONALS 

The following language must be included in all orders for employment of professionals:

Approval of employment of a professional person DOES NOT automatically approve any fee arrangement set forth in the application or any attachments thereto. No fees are pre-approved by the Court. Any request for a professional fee must be made separately, by a detailed application supporting the request, notice must be given to creditors and other parties-in-interest, and the Court must have an opportunity to review any objections which any party may have. The Court may also consider the application in the absence of any objections, and may adjust the fees according to the merits of the particular case. 11 U.S.C. §§ 327, 328, 329, 330, and 331. 

E. CLAIMS BAR DATE

The Court requires 60 days notice of claims bar dates in Chapter 11 cases. Ordinarily the claims bar date is the date set for the initial hearing regarding the approval of the disclosure statement. Alternatively, the debtor may request a claims bar date by ex parte motion and order, without the need for a hearing, but creditors are to be allowed at least 60 days notice to file their claims. Please use Local Rule Form 3003-1, which can be downloaded from the Court's web site at https://www.azb.uscourts.gov/court-forms, for the order setting the claims bar date. Proof of service upon all creditors and interested parties of the order setting the claims bar date must be filed with the Court.

F. ORDER SETTING HEARING ON APPROVAL OF DISCLOSURE STATEMENT

Please use Local Rule Form 3003-2, which can be downloaded from the Court's web site at https://www.azb.uscourts.gov/court-forms

G. ORDER APPROVING DISCLOSURE STATEMENT AND SETTING INITIAL CONFIRMATION HEARING

Please use Local Rule Form 3003-3, which can be downloaded from the Court's web site at https://www.azb.uscourts.gov/court-forms

 

 V. SPECIFIC PROCEDURES FOR CHAPTER 13

A. CHAPTER 13 ATTORNEY’S FEES ORDERS

This section currently under construction.  

B. LIEN AVOIDANCE/"LIEN STRIPS"

Please use Judge Whinery's preferred form of order (or an order that addresses all points addressed in the preferred form of order) located on this procedures page.

  

VI. SPECIFIC PROCEDURES FOR EVIDENTIARY HEARINGS AND TRIALS

A. SCHEDULING ORDER

The Court will issue a scheduling order for all contested or adversarial matters set for evidence. Parties are to comply with all deadlines and requirements set forth in the scheduling order or the hearing/trial may be vacated.

B. DISCOVERY DISPUTES

The parties are to notify the law clerk, Hannah Willett at Hannah_Willett@azb.uscourts.gov, and the courtroom deputy, Rebecca Volz at Rebecca_Volz@azb.uscourts.gov, if a discovery dispute remains unresolved after the parties have engaged in personal consultation pursuant to Local Rule 9013-1(e). The parties will be instructed how to proceed thereafter. An informal conference with the judge will be scheduled or the parties will be instructed to file their discovery related motions.

C. AFFIDAVITS OR DECLARATIONS

Unless otherwise ordered, the Court will not accept affidavits or declarations as evidence over the objection of an opposing party. Prior to the hearing/trial, the parties shall stipulate which, if any, declarations or affidavits may be received into evidence without qualification, which may be received in evidence, provided the witness is available at the hearing for cross examination and which witnesses must testify on direct examination. Notwithstanding the parties' agreement, the Court may require any witness to testify on direct examination.

 

VII. CONTACT INFORMATION

A. STAFF 

Rebecca Volz, Courtroom Deputy
520-202-7988
Rebecca_Volz@azb.uscourts.gov

Hannah Willett, Law Clerk
520-202-7966
Hannah_Willett@azb.uscourts.gov

Sherry Leavitt, Judicial Assistant
520-202-7984 
Sherry_Leavitt@azb.uscourts.gov

B. DELIVERY ADDRESS

United States Bankruptcy Court
38 S. Scott Avenue, Room 100
Tucson, AZ  85701-1608

 

VIII. FILES FOR DOWNLOAD:

Form of Order for Avoiding a Lien on Real Property in a Chapter 13 case (pdf) 
Exhibit List (pdf)
Exhibit List (Word)

  

Procedures updated on 09/01/2020.