Trustee’s Policy Change Affecting Attorneys’ Appearances at Court Hearings

“Will you inform the court that we have agreed to continue the hearing?”  “Now that we’ve reached a resolution, will you tell the judge?”  “Do I need to come to the hearing?”  “Do I need to stay around until my case is called?”

Attorneys make these requests to avoid spending time in court for a chapter 13 docket call.  I get it – time is money to attorneys, and if you have only one or two cases on the docket, you don’t want to travel to the courthouse and sit around until your case is called just to ask for a continuance or to tell the court that you will be converting the case, for example.

In the past, I and my staff attorneys have tried to be accommodating by relaying such information to the court on the attorney’s behalf, but the requests are becoming too much.  Taken to the extreme, why should any attorney (particularly debtors’ attorneys) appear in court if I can inform the court of the status of their cases and prepare all of the necessary orders?

Last week I made a tough decision:  I and my staff attorneys will no longer make representations to the court on behalf of an attorney who cannot or chooses not to appear at a hearing.  No more courtesy announcements of continuances, settlements, agreements, withdrawals, or the like for absent attorneys.

This doesn’t mean that you must attend every hearing.  There are alternatives.  Here are some suggestions:

  • If it’s a confirmation hearing – fix the plan to get it confirmable.  Be proactive.  Review secured claims.  Hound your clients about filing tax returns or getting necessary documents to you.  Discuss settlement with objecting creditors.  File the amended plan nine (9) or more days before the hearing.  Once I recommend confirmation, the case comes off the docket.
  • If it’s a motion to dismiss for failure to make plan payments – take advantage of the agreed order process (click here to find forms and instructions).
  • If you file a motion to modify a plan in response to my motion to dismiss, file it more than 2 days before the hearing, and I’ll renotice the motion to dismiss to the next month.  By then, the objection time will have run on your motion to modify, I’ll withdraw the motion to dismiss, and no hearing will be necessary.
  • If I file an objection to your motion to modify and on further review you agree with the objection, withdraw your motion.  That moots my objection and gets the matter off the docket.  Then you can file a new motion to modify.
  • If you want a continuance of a hearing, draft and submit to my office for approval an agreed order continuing the hearing (especially confirmation hearings), and then file the proposed order with the court in time for the court to process and enter the order before the hearing.
    • It is rare that I will refuse to continue a hearing as long as I know the case is progressing towards confirmation or a resolution of the matter.
    • Get the agreed order done at least 2 days before the hearing.  Waiting until late on the day before the hearing is not a good idea, because the agreed order might not be entered in time to get the case off the docket.
    • If the case is still on the docket, appear or face the consequences.  Don’t expect me to ask for a continuance on your behalf.  Sorry, but I am not going to make it easy for attorneys to avoid a hearing if they are waiting until the last minute to do what could have been done days earlier.  It just isn’t fair to those of you who get things done in a timely manner or who do come to court.
    • Don’t forget to put the date, time, and location of the continued hearing in the agreed order.
  • If you must wait until the last minute, file a motion to continue the hearing, as long as you put in your motion some valid reason why the continuance is necessary.  Tender an order with the motion and request that the order be entered without notice and hearing pursuant to local rule 9013-1(c)(v).  Again, your proposed order must state the date, time, and location of the continued hearing.
  • Have another attorney appear on your behalf to request a continuance, explain the status of the case, or confirm that the matter has been resolved.
  • Finally, come to the hearing.  Until your case is called, you can read, text, email, work on a laptop or tablet, or just listen to what’s going on in other cases.  You can learn a lot from listening to and observing the judges as they ask questions or make oral rulings.

 

One comment

  1. Trustee Burden – your last point is spot on! When I was a newbie attorney, attending Court during my downtime was instrumental in my learning the ways of the bankruptcy world. I recommend it to attorneys who are new to this area of law to this day.

    Liked by 1 person

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