Procedures for Judge Tony M. Davis


 

Procedure for Responding to Post-Confirmation Trustee's Motions to Dismiss

Electronic Exhibits

Searchable, Bookmarked, Non-Duplicative Exhibits to Motions and Other Filings

Continuances

Motions to Expedite

Telephonic Appearances

Objection to Claim

Motions to Extend Time to File Schedules

Requests Relating to 341 Meetings (All Chapters)

Recusal

Sample Order Waiving Right to Claim a Default Based Upon Failure to Reaffirm a Debt

Copy Affected Parties when Communicating with the Court by Email

Redaction

Complex Chapter 11 Cases

Notice to Chapter 13 Trustee and Secured Creditors on Extend-Stay Motions

Proposed and Revised Confirmation Orders

Disclosure Statement Tips

Miscellaneous

Forms/Links

Electronic Exhibits

Courtroom #1 (Judge Davis’s Courtroom) is equipped with VGA cables to allow attorneys to display electronic exhibits and demonstrative presentations on the Court’s TV monitors. Electronic exhibits also will be displayed on screens on the witness stand and on the bench.
Parties wishing to use electronic exhibits simply need to bring their computer or electronic device to the courtroom and connect it to one of the Court’s VGA cables, one of which is available at each counsel table and the podium. Most PCs support VGA connectivity. Apple Computers, iPads, and other tablets are also compatible with this system, but they require additional components to connect that are not supplied by the Court.
Any party wishing to use electronic exhibits should test their computer on the Court’s system at least one day prior to the first time they plan to present. Parties who attend court regularly only need to conduct this test once. To coordinate a time to come to the courtroom and test the system, please email the Courtroom Deputy.

What do you need to bring to court for electronic presentation:

  • Your laptop, notebook and/or tablet
  • Three CDs for Judge Davis and extra copies for opposing counsel (for their electronic presentation or viewing).  
  • Adapters needed to connect to the VGA cables ( i.e. iPad, HDMI, Apple)

What I need to prepare prior to court:

  • Let affected parties know that electronic exhibits will be used for hearing.
  • Save your exhibit folder to your desktop for quick access or be able to readily access your exhibit folder from a thumb drive or both.
  • Prepare CDs - Save all pleadings to CD in PDF and OCR format.  Optical Character Recognition, or OCR, is a technology that enables you to convert different types of documents, such as scanned paper documents, PDF files or images captured by a digital camera into editable and searchable data. (The court requires PDF; you may use other format that allows you to make your presentation in the desired manner from your laptop/ipad/notebook.)
    • Label each pdf at top and/or bottom of page (i.e. Exhibit 1; pg. 1 of 4)
    • Include a witness and exhibit list
    • Save PDF (label files with description  as listed on witness and exhibit list)
    • Include any presentation (i.e. power point) file, if used.
    • Add labeled exhibits to CD  
  • Label the CD and CD cover
    • Indicate whose exhibits (i.e. Plaintiff’s  Exhibits 1-10)
    • Caption of the case
    • Matter being heard
    • Date of hearing
    • Number of exhibits on CD and if more than one CD (i.e.  Exhibits #1 -10, Vol. 1 of 2).
  • DO NOT COMBINE multiple cases on one CD

On the day of the hearing:
ARRIVE AT LEAST 30 MINUTES PRIOR TO COURT TO TEST YOUR EQUIPMENT (Courtroom Deputy needs to do a quick virus scan of the CDs being provided for the court’s use)

  • Connect to a VGA cable at either one of the counsel cables and/or at the podium
  • Toggle your screen to “duplicate” (some devices might automatically toggle and display on video monitors)
  • Have a clean monitor screen (no personal file folders visible)
  • Turn off email/messaging notification
  • Turn off sound on laptop/ipad/notebook (for notifications, i.e. airplane mode)
  • Perform a test run of the exhibits with the Courtroom Deputy

While giving your presentation:
When ready to display your exhibits, parties will need to request access to display their exhibits. Parties in the courtroom view exhibits on the video monitors.

  • Narrate while displaying exhibits to make the record clear
    • Indicate which exhibit is being displayed on the monitor
    • Indicate which page number of the exhibit (i.e. Exhibit 1 page 4 of 10) is being shown
  • Technical Recess
    • You may request a standing recess  for trouble shooting issues

REMINDER: COURT STAFF CANNOT PROVIDE TECHNICAL SUPPORT FOR NON-COURT EQUIPMENT

See also Electronic Exhibits

Searchable, Bookmarked, Non-Duplicative Exhibits to Motions and Other Filings

Judge Davis strongly prefers all documents to have gone through the OCR (optical character recognition) process and be searchable.  This includes both pleadings and exhibits.  In addition, where exhibits are submitted along with a pleading, parties should endeavor to use technologies such as “bookmarking” to ease the navigation and use of the exhibits.

Secondly, Judge Davis encourages the submission of fewer duplicative and lengthy exhibits.  If a motion references, as an exhibit, a document that already has been filed on this court’s docket (such as a debtor’s schedules), or that already has been uploaded as an exhibit to another document (such as a series of invoices or pay stubs, attached in a motion and then referenced again in a responsive brief), there is no need to upload the exhibit again.  A clear, concise reference to the exhibit (“Ex. A, Invoices, attached as Ex. B to Dkt. No. 1”) will suffice.

Creating a Really Accessible Document

Continuances

Per Local Rule 9014(f):

  1. a motion to continue a hearing must be filed at least THREE business days prior to the hearing date, or state the nature of the emergency making it impossible to have filed it by that date
  2. the motion must state good cause for the continuance
  3. the motion must contain a certificate of conference reflecting efforts to confer with affected parties regarding the relief requested or the reasons why conferring was not possible or practical. Failure to include a certificate of conference may result in dismissal of the motion due to non-compliance with Local Rule 9014(f).
  4. the motion should state with as much detail as possible the length of the continuance requested or the date or range of dates requested for the continued hearing
  5. the motion must be served on interested parties including those parties known or expected to participate in the hearing, who must be served electronically, by facsimile or by some other method reasonably calculated to provide immediate notice

In addition, to obtain a continuance of a hearing before Judge Davis:

  1. a proposed form of order granting the continuance must be uploaded (in the Expedite category via E-Orders) when the motion is filed
  2. the movant must email the Courtroom Deputy when the motion is filed to notify her of the filing
  3. when notified by the Courtroom Deputy that the motion is granted, the movant must provide notice of the continuance to all interested parties and per Local Rule 9014(f), within five days, must file a certificate of service reflecting that notice

Motions to Expedite

Per Local Rule 9014(e), unless otherwise provided by order:

  1. a motion to expedite a hearing or consideration of a matter must state good cause for expediting
  2. the motion must be filed as a separate pleading from the matter which is requested to be expedited
  3. the motion must contain a certificate of conference reflecting efforts to confer with affected parties regarding the relief requested or the reasons why conferring was not possible or practical. Failure to include a certificate of conference may result in dismissal of the motion due to non-compliance with Local Rule 9014(f).

See Form Motion to Expedite

In addition, to obtain an expedited hearing from, or expedited consideration by, Judge Davis:

  1. the underlying motion that is requested to be expedited should NOT contain the negative notice permitted under Local Rule 9014(a)
  2. a proposed form of order granting the motion to expedite, in substantially the form provided below (see Form Order Granting Expedited Hearing), must be uploaded when the motion to expedite is filed
  3. the movant must email the Courtroom Deputy when the motion to expedite is filed, to notify her of the filing
  4. when notified by the Courtroom Deputy that the motion is granted, the movant must provide notice of the continuance to all interested parties and per Local Rule 9014(e), within five days, must file a certificate of service reflecting that notice

Telephonic Appearances

Hearings may be conducted by teleconference when deemed appropriate by the Court. In approving a hearing by teleconference, consideration will be given to the nature and scope of the matter before the Court, number of parties seeking to appear by phone, associated time and cost of travel, and equity to all parties.

For telephonic appearances in Judge Davis hearings, parties will no longer file a motion with a proposed order.

Effective immediately, to request a telephonic appearance, counsel will electronically file a Request for Telephonic Appearance at least 48 hours before the hearing.

The Request for Telephonic Appearance event has been created in CM/ECF as a text only entry, there will be no PDF attachment.  It will prompt the filer to include the reason for the request, a direct (not cell) phone number, date and time of hearing, and linkage to the matter being heard.

If Judge Davis approves the request, a Judge's Notice of Party Permitted to Appear Telephonically will be entered in the case.

Party will dial-in number 1-857-232-0155. You will be responsible for your own long-distance charges. This dial-in number should be used regardless of the location of the hearing.
You will be asked to key in the conference room number. The conference room number is 511285. Once this number is entered, you will be connected live to the courtroom.
Once you are connected, you will be able to hear persons speaking in the courtroom and other persons on the call addressing the Court. You will not be able to address the Court until the Court addresses you or you request to speak and the Court grants the request.
If you wish to address the Court, you must press 5*. Do not press 5* until you need to address the Court. Within 5 seconds, the Court will receive a signal that you wish to speak. When the Court calls on you, you will hear a recorded message that your line has been unmuted. At that time, you may be heard.
When you are done, the Court will again terminate your ability to speak. You may press 5* if an additional issue arises that you wish to address with the Court.

If Judge Davis does not approve the request, a Judge's Notice of Party Not Permitted to Appear Telephonically will be entered.  

In Complex Chapter 11 cases, the Court may establish separate procedures for telephonic appearances on a case by case basis.

Please be advised of the following:

  • Unless specified otherwise by the court, the court does not permit the use of pay phones, cellular phones or speakerphones of any kind when participating in any court proceeding telephonically. Since we do not recommend the use of a speakerphone, you should schedule a separate appearance for your client so that he/she can participate in the conference.
  • Parties must be available 20 minutes prior to the hearing. The same rules regarding punctuality and conduct apply and a telephone appearance is treated the same way as any other Court Appearance.
  • Typically, the Court will take the cases in whatever order it would normally, whether there are telephonic appearances or not. There is no required preferential treatment for people making telephonic appearances.
  • Each time a participant speaks, he or she should identify himself or herself for the record.
  • Witness testimony is not permitted via teleconference.
  • If a technological problem arises, the hearing will continue without the participation of dial-in participants. The Court will not delay hearings for signal problems or interference. Accordingly, persons choosing to attend a hearing by dial-in do so at their own risk of a technological failure.

Objection to Claim

The objection must be served on the creditor at the notice address listed on the proof of claim.
The proposed order must include the claim number in the title of the order and claimant’s name and address (see Form Order Granting Objection to Claim).
The scope of the proposed order granting the objection must match the relief requested in the objection.

Motions to Extend Time to File Schedules

Rule 1007(c) allows for an extension of time in which to file schedules and statement of financial affairs for cause shown. The procedure for requesting an extension of time is as follows:

  1. Provide a specific date deadline for the extension of time in both the motion and the proposed order. The deadline request should be no less than seven (7) calendar days prior to the 341 meeting date.
  2. Do not use negative notice (i.e. 21 days) in motions to extend time to file schedules (the suspense time will run after the extension deadline, which does not give the trustee and creditors sufficient time to prepare and/or respond).

Requests Relating to 341 Meetings (All Chapters)

Any request to continue a 341 meeting or to excuse a co-debtor's appearance at a 341 meeting should be submitted to the trustee’s office prior to seeking relief from the Court. Please refer to the Court's Standing Order (Nov. 15, 2000

Recusal

Judge Davis will automatically recuse himself from any case, or proceeding within a case, involving Baker Botts, L.L.P. until April 15, 2015.

Sample Order Waiving Right to Claim a Default Based Upon Failure to Reaffirm a Debt

Some debtors, after diligently but unsuccessfully attempting to contact a lender to reaffirm a debt, have sought relief from the court, requesting an order to the effect that the lender cannot claim a default or keep them in “bankruptcy” status merely because they have failed to reaffirm the debt.  Although Judge Davis does not guarantee that he will grant such relief whenever requested, he will consider granting it if debtors use this form of order, which includes language protective of the rights of both debtor and lender.

Copy Affected Parties when Communicating with the Court by Email

The court recognizes that some administrative and scheduling matters are best dealt with by emails between court staff and the relevant parties.  But contact should not be made ex parte.  See Fed. R. Bankr. P. 9003(a).  Rather, counsel for affected parties should be copied on communications.  In Chapter 13 cases, a representative from the office of the Chapter 13 Trustee should be included as well.

Redaction

Motions to redact may be filed ex parte, without 21-day objection or negative notice language.  Judge Davis would prefer that parties use this form of order

Complex Chapter 11 Cases

In complex Chapter 11 cases that have been pending for at least a year, Judge Davis would like debtor’s counsel to provide regular updates on certain aspects of the progress of the case.  Regular (monthly or quarterly) reports should be made on matters of case administration, including:  the anticipated time frame for the pursuit and resolution of pending and anticipated adversary proceedings, contested matters, and other forms of recovery of assets of the estate; the status of each party or issue to which omnibus motions are addressed, including concluded and anticipated settlements as well as upcoming hearings.  In general, in this and in other areas, Judge Davis would like counsel to focus on not just data but usefully summarized data, so that the court and the parties in interest can assess status easily. 

Notice to Chapter 13 Trustee and Secured Creditors on Extend-Stay Motions

Debtors seeking to extend the automatic stay pursuant to §362(c) should email the Courtroom Deputy, the Chapter 13 Trustee, and affected secured creditors.  In order to provide the debtor relief where merited, the court seeks to set such matters on an expedited basis if at all possible—but it is important that all affected parties have an opportunity to be heard on the motion.

Proposed and Revised Confirmation Orders

While Local Rule 9013(b) does not require proposed confirmation orders to be filed, Judge Davis believes it is beneficial for such revisions to be circulated in the days leading up to a confirmation hearing.  Accordingly, absent unusual circumstances, he expects that proposed confirmation orders should be filed along with plans, and as revisions are made, that such revisions be circulated to the Court, counsel for any official committees, the Office of the United States Trustee, and any parties having objected to the plan or in active negotiations regarding provisions of the plan.  Prior to a hearing, he would like the most recent draft to be filed on the docket, with a “redline” demonstrating whatever changes have been made since the original proposed order was filed.

Disclosure Statement Tips

On the topic of disclosure statements, Judge Davis would direct parties’ attention to an email circulated by Lisa Fancher, Chair of the Bankruptcy Law Section of the Austin Bar Association, which says in relevant part:

Judge Davis says that the disclosure statements that he sees are generally fairly good and cover the required Metrocraft elements. He also says that Austin lawyers are doing a reasonably good job of managing Chapter 11 cases. However, he believes that with relatively minor retooling to disclosure statement forms, they could be improved and made more useful to creditors and equity holders. While his suggestions are particularly important in connection with individual and small Chapter 11 cases in which there is no creditors’ committee, all Chapter 11 disclosure statements would benefit from including them.

His suggestions are as follows:

1.   Add a thumbnail summary in the introductory section of the disclosure statement describing what the plan provides and how it will affect impaired creditors, unsecured creditors and equity holders: what, if anything, does the plan propose to distribute, and what are the risks that this proposed treatment will not occur.

2.   Make the disclosure statement adequate at the time that it is initially filed if at all possible.

3.   If it is necessary to amend the disclosure statement prior to the hearing, please  do so as far in advance of the hearing as possible,  and email his law clerk (Sarah_Wood@txwb.uscourts.gov) a redline showing the changes made.

4.   Provide better financial disclosure. This is the area of the greatest concern.

  • Don’t attach all of the monthly operating reports; they create bulk without offering enough information. If you believe the financial information in the MORs is the most appropriate information, then provide a chart showing the numbers on a monthly basis.
  • In general, before attaching any voluminous document, consider whether the information contained in the document could be summarized.  Even with disclosures, less could be more.
  • Include estimates of outstanding professional fees and projected future fees. Please note that Judge Davis will compare subsequent fee applications with the disclosure statement and may consider disallowing fees if they were foreseeable at the time of the foreclosure statement and were not sufficiently disclosed.
  • Tailor the financial disclosures to the needs of those impaired creditors and equity holders who have not already agreed to their treatment and will be voting on the plan. If it is a liquidating plan, that could be very simple.
  • If it will be an operating plan, provide historical information regarding operations or explain why operations will be different in the future.
  • In business cases, provide appropriately detailed income and balance sheet projections as well as cash flow statements reflecting cash on hand and anticipated cash as of the effective date.
  • In individual cases that resemble Chapter 13 cases, provide statements of anticipated income and expenses similar in detail to Schedules I and J, but (in most cases) on a monthly basis for the life of the plan.

5.   Include a request to vote for the plan and the reasons that the plan is preferable to the alternatives, but be modest in the sales pitch and craft appropriate disclaimers; think like a securities lawyer.

6.   Tailor the boilerplate (including the Metrocraft factors) to fit the facts of the case.

7.   A table of contents would be very helpful for both the disclosure and the plan, particularly if the document is 25 pages or more.

8.   With respect to preserving causes of action, please refer to Judge Davis’s findings of fact and conclusions of law in Ciesla v. Harney Management Partners, Adv. Pro. No. 13-01013, Doc. No. 40), which is posted on the Court’s website at: 

13-01013-tmd Michael Ciesla, Trustee of the KLN Liquidating Tru v. Harney Management Partners, LLC 2014-02-18

Miscellaneous

Continuances of Creditors Meetings in Chapter 13 Cases In re Haltom
Continuances of Creditors Meetings in Chapter 13 Cases  In re Requejo
Request for Attorneys Fees for a Motion for Moratorium In re Pina
Early Payoff as Requiring Motion to Modify In re Wilson
Request for Attorneys Fees in Advance of Performing Services  In re Spence

Forms/Links

Form Motion to Expedite
Form Order Granting Expedited Hearing
Form Order Granting Objection to Claim
Form Order Granting Redaction
Form Order Waiving Right to Claim a Default
Consolidated Standing Order for Chapter 13 Case Administration
Amended Standing Order Relating to Ongoing Mortgage Payments in Chapter 13 Cases

Official Forms - Western District of Texas
Chapter 13 Trustee