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Procedures for Chapter 13 Hearings and 362 Orders: Judge Duncan

Fri, 04/02/2010 - 5:00am

Effective April 1, 2010 in chapter 13 cases filed and assigned to Judge Duncan, the Consent/Dispute calendar process will be modified.  All chapter 13 plans will be set for confirmation hearings.  If the trustee or a creditor objects to confirmation the hearing will be continued to a dispute calendar and a statement of dispute must be filed, as under present practice.  Otherwise counsel for the debtor and pro se debtors must appear at the first scheduled confirmation hearing and shall briefly describe the treatment of each creditor or class and be otherwise conversant with all elements of the proposed plan.  Judge Duncan will preside at these hearings and the trustee will make a recommendation as to confirmation following the brief presentation by counsel.  Judge Duncan may continue confirmation to a dispute calendar if testimony of the debtor is necessary or if there are issues requiring further review.  Further information concerning the presentation by counsel will be forthcoming.  The presentation will include a description of the treatment of each creditor or class of creditor, an affirmative statement as to any debt that may fall in a non-dischargeable category and disclosure of any plan provision that modifies the form plan.  This applies to chapter 13 cases filed on and after April 1 for Judge Duncan only.


Judge Duncan will no longer enter orders with a waiver of the Fed. R. Bankr. P. 4001(a)(3) and 6004(h) stay without a hearing and a showing of cause.  Please note that the term of these stays, effective December 1, 2009, is 14 days rather than 10.  For a limited transition time chambers will contact the proponent of a proposed order to determine whether stay waiver language should be stricken or the motion should be set for hearing.  For § 362(d) motions and applications for sale filed after May 1, 2010 a proposed order containing a stay waiver will be considered at the hearing on the date contained in the notice or, for ex parte settlement default order submissions, on a date set by the court.  Additionally, if fiduciary sales applications served on all parties in interest contain a specific showing of cause for waiver of the stay – as opposed to a boilerplate request – and no objection is made to the sale or waiver, the order approving sale and waiving the stay will be considered in chambers, but may be set for hearing.