The President of Bankla, John Lester, and I recently met to discuss our common desire to improve the quality of bankruptcy practice in this District. To that end we will be working together to sponsor the second annual paralegal training seminar to be held at the Court on a date in October or early November. The seminar will focus on “how-to” instructions regarding issues in a consumer bankruptcy practice, from both a debtor and creditor perspective. If you would like to work on this seminar or suggest topics, please contact John or Gretchen Holland.
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Chambers' Bulletins
Judge Waites is seeking experienced bankruptcy counsel to serve as mediators in several adversary proceedings pending before the Court. These proceedings are primarily in the nature of dischargeability or preference actions. Attorneys that are certified mediators in state or federal court, or those with specialized experience in the specified area, are requested. Please indicate your interest via letter setting forth your qualifications and the hourly rate for which you would be willing to serve (and any other relevant information you wish to provide) by facsimile to Judge Waites at 803-253-3464 on or before Friday, August 27, 2004.
In order to reconcile the § 362 continuance and settlement procedures required by Judge Waites and stated herein on July 31, 2003 with the new Chapter 13 hearing procedures, effective July 1, 2004 the time for requesting continuances and submitting settlement orders or withdrawals for purposes of removal from the calendar has been changed to 12:00 p.m. on the day prior to the hearing.
In light of the United States Supreme Court’s recent decision in Till v. SCS Credit Corp., 124 S. Ct. 1951, the committee appointed by this Court to review interest rates to be applied to secured claims in Chapter 13 cases has recommended that the interest rate currently set forth in Amended Operating Order - Interest Rate in Chapter 13 Cases (8%) remains in effect until further review and a formal meeting of such committee can be held to coincide with the South Carolina Bankruptcy Law Association meeting in September 2004. The purpose of the further review and meeting will be to make recommendations for future interest rate application based upon the holding by the Supreme Court. The Court encourages the bar to be mindful of the upcoming review of this matter and notes that the Court may defer matters directly addressing the Supreme Court’s decision pending recommendations by the committee.
I enjoyed meeting with several consumer creditor attorneys over lunch on May 18, 2004 to discuss court procedures and other matters of interest. This was a follow-up to a similar meeting held with several consumer debtor attorneys in September of 2003.
Such efforts to visit "outside of the courthouse" and share ideas and concerns is always enjoyable and I believe beneficial. Thanks to all who attended.
An Operating Order which sets deadlines for parties to respond to a demand for jury trial in a bankruptcy proceeding and to indicate if each party does or does not consent for the jury trial to be conducted in the bankruptcy court has recently been signed and will soon be posted on the Web page.
Counsel in adversary proceedings should also observe Bankruptcy Rule 7008 which requires a statement in a pleading if the proceeding is core or non-core and if the pleader does or does not consent to entry of a final order and judgment by the bankruptcy judge.
Also, an Operating Order providing for dismissal of a Chapter 13 case upon failure to provide to the Chapter 13 Trustee information or documents necessary for case administration has recently been signed and will soon be posted on the Web page.
If you have any problems or concerns in this area, please contact me or a member of the User’s Committee.
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).
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.
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.
In order to assist me in considering issues arising in connection with CM/ECF, I have organized a User’s Committee. Its members are the President of Bankla, John Lester; a member of the Local Rules Committee, Mike Church; a Trustee, Jimmy Wyman; and a member of the Bar, Brad Richardson.
One of our objectives in the near future is to review the Administrative Procedures upon which the implementation of CM/ECF in this district is based. Frankly, it was a document copied and cobbled together from procedures used by other Courts and appears to have some inconsistencies in critical areas, such as the rules regarding service of pleadings and when documents are to be considered deficient.
If you have any concerns or suggestions on CM/ECF, please let me or a member of this Committee know.