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Judge Nielsen Ammends Contested Lift Stay Procedures

A. Common Errors Regarding Compliance with Local Rules and General Orders

Particular attention should be given to General Order 82, regarding first day orders and the following Local Bankruptcy Rules: Local Rule 1073-1(d) and (e) requiring motions for joint administration to be filed in the lower-numbered case; 4001-1 governing motions for relief from stay; 6004-1 governing asset sales; 9004-1(e) requiring hearing dates and times to be included in captions when known; 9013-1(d) requiring a form of order to accompany a motion that may be granted ex parte; 9013-1(e) requiring certification of personal attempts to resolve discovery disputes; 9013-1(h) governing procedures for obtaining accelerated hearings; and 9013-1(j) requiring a notice of hearing to accompany any motion that requires a hearing. Copies of all general orders and local rules can be downloaded from the Arizona Bankruptcy Court web site.

B. Using Notice with Bar Dates for Responses

In addition to the bar date procedures established by the Local Rules, unless the court orders otherwise, the moving party may use a bar date notice for all:

  • approvals of compromises and settlements
  • objections to exemptions claimed by debtor
  • notice of claims bar date
  • applications for an award of professional fees
  • any matter which counsel anticipates will not draw objections.

The party using the bar date notice procedure must give detailed notice of the requested relief and clearly state the requirement to respond within the time allowed. Movant must serve all parties entitled to notice and file a service certificate. Upon expiration of the time stated in the Bankruptcy Rules or Local Rules, and an additional three (3) days for mailing, provided there are no objections filed, movant may file a certificate of service of no objections and upload an order granting the relief requested. The uploaded order should conform to the original relief requested.

If an objection is filed, the movant is responsible for preparing and sending a "Request for Hearing Date In An ECF Case" to gbnecfhearing@azb.uscourts.gov. Upon receiving a hearing date, movant shall give notice to all interested parties of the hearing and file a certificate of service. It is not necessary to forward a copy of the actual "Notice of Hearing" to the court.

In the alternative, particularly if an objection is anticipated, a hearing date may be obtained for any motion or application by preparing and sending a "Request for Hearing Date In An ECF Case" to gbnecfhearing@azb.uscourts.gov along with a copy of the "Notice of Electronic Filing."

C. Filing Pleadings

Judge Nielsen does not accept pleadings sent directly to chambers via fax, personal delivery or e-mail. All pleadings must be electronically filed before the time of the hearing.

D. Continuances and Vacating Calendared Hearings

Any request for a continuance, or to have a hearing vacated, shall be electronically filed prior to the hearing and shall state whether the continuance or vacation is opposed. The motion should be accompanied by an uploaded proposed order and should include the hearing date and time in the caption.

A courtesy call to courtroom deputy Jan Hernandez, (602) 682-4168, advising of the request to continue or vacate and indicating that the appropriate papers are forthcoming is greatly appreciated. An uploaded order is required to continue or vacate a hearing.

E. Exhibit Procedures

Exhibits shall be brought to court at the time of commencement of the evidentiary or final hearing. Voluminous exhibits shall be in tabbed and indexed binders. Exhibits will be marked by the courtroom deputy at the time they are offered into evidence. The original exhibits shall be maintained by the courtroom deputy. Additional copies for opposing counsel, the witness and one copy for the bench are to be provided by the proponent of the exhibit.

F. Docketing Calls

Except in the case of an emergency, Inquiries regarding the entry of pleadings and orders on the docket should be directed to the Bankruptcy Court Clerk's Office. In an emergency, parties may inquire of chambers staff whether an order has been signed or entered on the docket.

Chambers staff will not give parties legal advice or provide status reports concerning items before the court. If a matter has been under advisement for more than 60 days, counsel should send a letter of inquiry directly to the judge, with a copy to all parties. See Local Bankruptcy Rule 9010-1(d).

G. Telephonic Appearances

Telephonic appearances shall be requested by motion and uploaded order, prior to the scheduled hearing, preferably at the time the moving papers are filed. Any telephonic appearance is to be arranged by the person so requesting. Providing sworn testimony by telephone for evidentiary hearings is disfavored.

H. Obtaining a Compact Disc Recording or Transcript of a Hearing

A party may obtain a transcript or compact disc recording of a hearing by contacting the Electronic court reporting ("ECR") department at (602) 682-4200. The current cost for a compact disc recording is $26 per disc.

The cost of a transcript is determined by the number of pages and whether the party requests expedited delivery. Upon request, ECR staff can provide an estimate of transcript costs.

I. Obtaining Hearing Dates for Electronic Case Filing ("ECF") Matters

Upon completion of filing a motion or application, counsel may obtain a hearing date through gbnecfhearing@azb.uscourts.gov and include the following:

  1. A copy of the Notice of Electronic Filing
  2. The form: REQUEST FOR HEARING DATE IN AN ECF CASE

Counsel will then be provided with a hearing date and time for noticing by return e-mail.

Complete instructions regarding ECF procedures can be downloaded from the Bankruptcy Court web site.

J. General Trial Procedures

The Court will set a specific time for the exchange of exhibits and identification of witnesses for an evidentiary hearing. In the absence of an order to the contrary, all witnesses which a party proposes to call must be identified and copies of all exhibits that a party proposes to admit into evidence must be exchanged no later than two weeks prior to the hearing. If a witness will be asked to express an expert opinion, the witness must be identified as an expert and a report submitted at the time exhibits are exchanged. The report need not be elaborate, but must set forth the matters on which the opinion will be offered, the nature of the opinion and the materials the expert relied upon in reaching the opinion. Failure to follow these procedures may lead to exclusion of the witness or the exhibit. The parties may agree to a different disclosure schedule or procedure. Such agreement will be enforced against a noncomplying party only if the agreement complies with Local Rule 9071-1. Stipulated pretrial orders will be required for complex litigation.

K. Motions for Relief from Stay

The court will not routinely waive the ten-day stay of Federal Bankruptcy Rule 4001(a)(3) and will strike language to that effect contained in a submitted order. If the movant believes such relief is appropriate, a separate affidavit specifically supporting the relief must be submitted with the order. "Boilerplate" statements are disfavored.

Obtaining a Final Hearing Date on Contested Motions for Relief From Stay

  1. After an objection or response has been filed to a Motion for Relief from Stay, the moving party must promptly e-mail Jan Hernandez with the form "REQUEST FOR HEARING DATE IN AN ECF CASE" at gbnecfhearing@azb.uscourts.gov to obtain a date for a 30 minute Final Hearing. The form, once completed, MUST include the "relate to" number of the underlying motion. Failure to promptly request a hearing will be deemed a waiver of the priority hearing provisions of 11 U.S.C. Section 362(e)(2).
  2. Download the PDF Order: PROCEDURE ORDER.
  3. Prepare a notice of final hearing. Attach the PROCEDURE ORDER to the notice of hearing. A copy of the PROCEDURE ORDER MUST be attached to the notice of hearing for notice to be effective. Please include the "relate to" docket number of the underlying motion under the subject of the hearing.
  4. Serve the notice of hearing, with the Order attached, to the appropriate parties and file the notice and certificate of service via ECF.

L. Use of Declarations and Affidavits

Unless otherwise ordered, the Court will not accept affidavits or declarations as trial evidence over the objection of an opposing party. Prior to the 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' testimony to be provided by direct examination.

M. ECF Orders

When lodging a form of order that counsel expect the Court may modify, please e-mail an extra copy in a word processing format, such as Word or WordPerfect, to the judicial assistant at Rachael_Stapleton@azb.uscourts.gov.

N. First Day Motions in Chapter 11 Cases

In addition to compliance with General Order 82, it would be appreciated if one paper copy of first day motions and orders, including all exhibits, could be provided to chambers. When first day motions are numerous, chamber's copy should be provided in tabbed three-ring binders with a table of contents.

Files for download (PDF):