C. Elizabeth (Lizzie) Weston has joined Judge Duncan's chambers as a law clerk. Lizzie is a 2017 graduate of the University of South Carolina School of Law and comes to chambers from Haynsworth, Sinker, Boyd.
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In June 2021, Judge Duncan will begin holding in person hearings in contested matters, including contested chapter 13 confirmation hearings, motions for relief from stay, and matters in chapter 7, 11, and 12 cases. These hearings will ordinarily be scheduled in person; however, if extenuating circumstances exist and all parties agree, the hearing may be held virtually. Parties should advise the Court as soon as possible if they wish for a hearing to be held remotely. Masks will still be required for all parties attending in person hearings, and social distancing guidelines will still be observed.
In order to facilitate the Court's scheduling, parties should be diligent about settling matters and reporting any settlements to the Court. Additionally, parties may not attend in person hearings if displaying any symptoms of Covid-19 or if quarantining due to possible exposure to Covid-19. Chief United States District Judge R. Bryan Harwell's standing order restricting entry to federal courthouses by certain persons remains in effect. If any party is unable to attend a hearing due to illness or exposure, the Court must be notified as soon as possible so that arrangements can be made to continue the matter to a later date.
For chapter 13 matters, Judge Duncan will continue his current practice of reviewing and disposing of all matters scheduled for 10 a.m. in advance of the hearing date. If any party believes that a matter scheduled for 10 a.m. should be heard on the hearing date, chambers should be contacted as soon as possible. To reduce the number of people in the courtroom, Judge Duncan will also continue his current practice of rescheduling matters scheduled for 10:30 a.m. for different times throughout the morning. Chambers will provide parties with the time of their hearing by email.
Judge Duncan is accepting applications for a term law clerk. The vacancy announcement can be reviewed here.
Judge Waites is pleased to welcome back to chambers Brian Calub as a law clerk in Columbia. Brian previously clerked for both Judge Waites and Judge Bishop in 2003-2006 and went on to a successful practice with Nelson Mullins in Columbia (7 years), The Hunoval Law Firm in Charlotte (2 years) and most recently with McGuire Woods in Charlotte (6 years).
Unless announced otherwise, Judge Waites will continue to use videoconferencing or telephonic appearances as the primary means of conducting uncontested hearings or hearings in which the trustee wishes to question the debtor in Chapter 12 and Chapter 13 cases. This would include the roll call of recommendations by the trustee and the conducting of status hearings in Subchapter V chapter 11 cases. Counsel should contact or coordinate with the applicable trustee to ensure you have the correct information for appearances in such matters.
The presumption of an in person hearing mentioned in operating order 20-14 posted on June 7, 2021 will apply to matters in which joint or separate statements of dispute indicate that the matter is contested and there is an expectation of the submission of evidence or testimony. Counsel in such matters should affirmatively contact courtroom deputy Nicole Stalvey to ensure the appearance requirement, to request an alternative means of appearance or hearing date and to ensure the correct location for any in person hearing. In person hearings may be held in the Columbia or Charleston court location regardless of the location originally noticed depending on other matters scheduled before the court that day.
In Chapter 11 cases, counsel should presume an in person hearing but should affirmatively contact the courtroom deputy to determine whether videoconference or telephonic hearings may be alternatively allowed and to determine the location of any in person hearing. In the instance where the attendance of out of state witnesses or counsel is expected, please contact the courtroom deputy before travel arrangements are made.
Hearing times and locations may be changed depending upon the schedule of other matters, the time necessary for the subject hearing and the location of witnesses and counsel.
Andrew Powell, Judge Waites’ career law clerk in Columbia, will be leaving the Court on June 4, 2021 to serve as the staff attorney for new chapter 13 trustee, Annemarie Mathews. Since 2015, Andrew has been an outstanding law clerk, friend, and advisor to the Judge. He has managed chambers with professionalism, skillfulness, and civility, which has been appreciated by his colleagues at the Court and the Bar. He will be missed and we wish him the best as he embarks on the next step in his career.
Agnes Babb, judicial assistant for Judge Waites for the last two years, will leave the Court on June 2, 2021 to resume her retirement. Agnes started with the Court in 1987, retired from the Court in 2019 but returned to help Judge Waites by special allowance from the Director of the Administrative Office of the U.S. Courts. Throughout her career, Agnes has shown skill, courtesy, and a kind and helpful attitude to all. Her friendship and positive spirit will be missed. We wish her many happy years in retirement.
Local Rule 9013-4 was recently amended to revise notice and service requirements for certain motions. The revised Rule now provides detailed charts in Exhibit A and B that list the parties to be served with each motion and the applicable response deadlines, as well as the party responsible for service of the resulting order. Some of the changes regarding service were made to reduce costs and expenses for counsel. For example, the Court has resumed service of confirmation and conversion orders as well as other orders set forth in Exhibits A and B.
In addition, in his Chambers Guidelines, Judge Waites has clarified that case-wide service for certain motions, including motions for hardship discharge, motions to reopen, and motions to continue administration, is not required in his cases and has listed several motions that may be filed in a closed case without the filing of a motion to reopen and the payment of a filing fee. Chambers Guidelines was also recently updated to assist with requesting supplemental fees in chapter 13 cases. To assist the bar, Chambers has prepared a summary to provide a quick reference guide to those changes and to provide other helpful information. The summary of recent changes is available here.
Revised Form for Motions to Modify Plan After Confirmation
At the suggestion of members of the Creditor Bar to assist in their review of plans, the form to be used for motions to modify plan after confirmation under SC LBR 3015-2(b) in cases assigned to Judge Waites has been modified to include a description of the changes to the plan (which is similar to the current requirement of the other Judges in this District). A copy of the revised form is available here. This form is required for cases assigned to Judge Waites beginning on March 1, 2021.
Guidance on Supplemental Fee Requests
Judge Waites’ Chambers has created guidance for the filing of fee requests in chapter 13 cases assigned to him.
When utilizing the Statement of Supplemental Chapter 13 Attorneys Fee event under SC LBR 2016-1, the following information must be included:
- Differentiating between Before and After Confirmation Supplemental Fees: The relevant fact in determining whether the Statement is “Before Confirmation” or “After Confirmation” is when the services comprising the supplemental fee are rendered. Therefore, if the services were rendered pre-confirmation, but the Statement of Supplemental Chapter 13 Attorneys Fees is not filed until after confirmation, the attorney should select “Before Confirmation” when filing the CM/ECF event.
- Explanation for Supplemental Fees: In the description of the Statement of Supplemental Chapter 13 Attorneys Fees, counsel should provide a brief explanation as to why the services were unanticipated for each component of the services rendered.
Example: Supplemental Fees in this request: $500.00. Statement of Work: Assisting with the filing of a Motion for Moratorium due to unexpected reduction in work hours.
- Breakdown of Requests Involving Multiple Services: For circumstances where the attorney is requesting approval of compensation for multiple services in a single request, the description should include a breakdown of the fees charged for each service completed.
Example: Supplemental Fees in this request: $500.00. Statement of Work: Assist with the filing of Amending Schedules and Statements ($200.00) and assist with the filing of Amended Plan ($300.00) due to a decrease in Debtor’s monthly income resulting from a change in employment.
- Approval of Services on an Hourly Fee Basis Any services to be rendered and compensated on an hourly-fee basis, even as a supplemental fee, must be requested by application for compensation pursuant to Fed. R. Bankr. P. 2002(a)(6) and 2016(a), be set for a hearing, and be approved by the Court by written order before payment.
Please provide this information starting March 1, 2021.
At the Court’s election and upon notification to the affected parties, in circumstances where the record of a contested matter is sufficient for the Court to decide the matter in advance or in lieu of a hearing, the Court may issue a tentative ruling through a proposed order prior to the hearing in an effort to save costs to the parties. The parties shall have an opportunity to timely respond to the proposed order. Upon an expression of agreement by the parties to the proposed order or upon no timely response being received, the Court may enter the proposed order as determining the matter before it and remove the scheduled hearing. If a response or objection to the tentative ruling is received, the contested matter will be heard at the scheduled hearing.
Alternatively, upon the agreement and request of the parties to a contested matter, the Court may consider issuing a tentative ruling in lieu of a hearing. The parties may request this consideration by submitting a correspondence to Chambers at least seven days before the scheduled hearing.
As a result of the recent changes to the District’s local bankruptcy rules, Judge Waites has revised his Chambers Guidelines to include additional instructions for notice and service of pleadings and to supplement the information contained in Exhibits A and B of SC LBR 9013-4. These additional instructions contain variances from past procedures and prior versions of Chambers Guidelines, as well as the current local bankruptcy rules. A stand-alone copy of these additional instructions is available here. These instructions are applicable only to the cases assigned to Judge John E. Waites.
Judge Waites is undertaking a project over the next sixty days to designate historical opinions for placement on the U.S. Government Publishing Office’s United States Courts Opinions webpage, which provides a free searchable database of select opinions from Federal courts for the general public and is available here.
As part of this project, when Chambers designates a prior opinion for distribution to the U.S. Government Publishing Office, CM/ECF may send counsel a new electronic notice for the historic opinion. Therefore, counsel may be receiving electronic notices for opinions entered several months or years ago. Counsel may disregard these particular notices as there has been no modification to these previously entered orders. If you have any questions regarding these notices, please contact Andrew Powell at Andrew_Powell@scb.uscourts.gov.