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Chambers' Bulletins

Mon, 4/26/2004 - 5:00 am

Due to the large volume of motions to reconsider dismissal of Chapter 13 cases (sometimes referred to as motions to reopen or motions to vacate dismissal) filed in recent years, Judge Waites, several months ago in association with the Chapter 13 Trustees who appear before him, implemented certain guidelines which are applicable to such motions.

Generally, on motions to reconsider dismissal due to failure to timely pay the Chapter 13 Trustee, the Court will allow reinstatement of the case under the following conditions:

  • Neither the Trustee nor affected party objects;

  • The motion was timely made (within 10-15 days of the dismissal) and set for hearing within 30 days of the dismissal (or the next available docket if Spartanburg );

  • Debtor is present at the hearing on the motion unless previously excused by the Trustee;

  • Debtor presents full catch-up payment in certified (or otherwise acceptable) funds to Trustee at the hearing; and

  • Debtor and counsel consent that any future dismissal of case is with prejudice.

However, the Court will not reconsider prior dismissals with prejudice absent extraordinary circumstances.

Situations of neglect or dismissal due to fault of counsel may require fee disgorgement/sanction before dismissal will be reconsidered.

In addition, this Court has previously determined that vacating the dismissal of a Chapter 13 case does not retroactively reinstate the automatic stay during the period when the case was dismissed. Jennings v. R&R Cars & Trucks (In re Jennings), C/A No. 01-02330, Adv. Pro. No. 01-80044, 2001 WL 1806980, at *3 (Bankr. D.S.C. Sept. 17, 2001).

Mon, 4/12/2004 - 5:00 am

RE: Parties represented by Jacobsen, Conway, Pincus & Long; Jacobsen, Pincus & Long; Jacobsen & Long; and/or Palmetto Law Group, LLC

In regards to the substitution of counsel for debtors formerly represented by the Jacobsen, Conway, Pincus & Long; Jacobsen, Pincus & Long; Jacobsen & Long; and/or Palmetto Law Group, LLC, certain parties have been appointed by the Supreme Court of South Carolina to protect the interest of clients (the “File Custodians”).

As such, the Court will sign an Order substituting counsel (without a separate motion) if the order is signed by new counsel and the debtor(s). The Court does not need the signatures of the File Custodians. If the former attorney takes issue with a substitution Order, that attorney may file a motion to vacate and a hearing will be scheduled. An Order of Substitution should be filed for each case. However, in those instances where one attorney seeks to be substituted as counsel for multiple debtors, the Judges will accept one order which covers multiple cases (with all appropriate debtor consents).

Substitution of counsel in a case does not automatically entitle new counsel to payment under a prior proof of claim filed by former counsel. The proposed Order substituting counsel should not reference claims or any transfer of claims. Prior filed claims are being handled by the Trustees. Substituted counsel may file a new proof of claim relating to their representation. The above-described procedures are applicable only to the affected cases referenced herein.

Wed, 4/07/2004 - 5:00 am

The CM/ECF User’s Committee has raised several issues regarding the future operation of the Administrative Procedures which govern electronic filings, including the inconsistency in instruction regarding service of electronically filed documents, the Clerk’s striking of documents without the “/s/” mark, the necessity of Certificates of Consent and the potential inaccessibility of CM/ECF due to mechanical problems. These matters were presented for discussion to Judge Bishop and the Clerk of Court in mid-March. I am hopeful that some modifications to the Administrative Procedures will be circulated in the near future

On March 8, 2004 , I asked the Clerk’s office to discontinue the striking of documents in my cases due to CM/ECF mistakes (as previously allowed under a delegation of authority in Operating Order 03-02) but instead to work with filers for corrections. For the time being the Clerk of Court staff will continue to call and notify filers of errors or other filing problems. You are encouraged to respond timely in order to avoid these matters being routed to Chambers.

Overall, the bar is to be congratulated for its efforts in adopting CM/ECF. Once they have committed to it, most lawyers have found it easier and more beneficial than expected.

If you have any problems or concerns in this area, please contact me or a member of the User’s Committee.

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