Procedure for Motion to Delay Entry of Discharge
The Court receives numerous Motions to Delay Entry of Discharge and/or Motions to Extend Time to Delay Discharge filed with 21-day negative notice language and would like to share the following:
- Please use the title "Motion to Delay Entry of Discharge."
- Per Local Rule 9013, 21-day negative notice language is not necessary.
- In filing a Motion to Delay Entry of Discharge, please refer to Bankruptcy Rule 4004(c)(2) which appears to create the need for an extraneous motion. In light of this, consider uploading the attached form of order which we will routinely grant, absent any unusual circumstances, with a proper Motion to Delay Entry of Discharge. When using the form of order, be sure to include the "date requested," the Court will not provide this information.
The Court appreciates your cooperation with the above. Feel free to contact chambers if you have any questions regarding filing these pleadings.
Procedure for Responding to Post-Confirmation Trustee’s Motions to Dismiss
- A Trustee’s Motion to Dismiss Case (TMTD) filed after confirmation shall contain 21-day negative notice language and will be set for hearing not less than 60 days from the date of the filing of the motion.
- If the Debtor is able to bring plan payments current, the Debtor shall file a Response which provides the date on which the plan payments will be current. The Parties may incorporate this deadline in an Agreed Order.
- If the Debtor desires to cure the default over time and continue the Chapter 13 case, then the Debtor should respond to the TMTD with a Motion to Modify Plan in Response to the TMTD. It is preferred that the Debtor’s motion be entitled:
DEBTOR’S MOTION TO MODIFY PLAN IN RESPONSE TO TRUSTEE’S MOTION TO DISMISS CASE
- The Motion to Modify Plan in Response to Trustee’s Motion to Dismiss Case must contain twenty-one day negative notice language prominently indicated on the first page of the pleading and must be linked to the TMTD in ECF.
- The negative notice language on the Motion to Modify should supply the date and time of the hearing on the TMTD (as any potential hearing on the Motion to Modify Plan will be heard at the same time as the TMTD).
- If no timely response to the TMTD is filed, no earlier than the 25th day after the TMTD was filed, the Court will enter the dismissal order and the hearing on the TMTD will be terminated. Counsel may file a response stating that the Debtor intends to file a Motion to Modify; however, the Motion to Modify must be filed timely as set forth below.
- If a Motion to Modify is required to resolve the TMTD, the motion must be filed in time for the hearing on the motion to be set along with the pending TMTD, meaning that the motion must be filed at least 32 days before the TMTD hearing.
- If a Motion to Modify is required to resolve the TMTD but is not filed in time to be set with the TMTD, the Court will grant the TMTD, absent extraordinary circumstances.
Form 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.
When filing a Stay Extension Motion
Debtors seeking to extend the automatic stay pursuant to §362(c) should email the Courtroom Deputy (link sends e-mail), 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.