Judge Brenda Moody Whinery
Presides in Tucson Courtroom 446
I. GENERAL INFORMATION
A. COMPLIANCE WITH LOCAL RULES
Counsel are expected to comply with all applicable Local Rules, Bankruptcy Rules and the Code. Particular attention should be paid to the following Local Rules:
• 1073-1(d) and (e) - Motions for joint administration
• 2084-25 - Sale of property or incurring new debt (Chapter 13 only)
• 4001-1 - Stay relief motions
• 6004-1 - Asset sales
• 9004-1(f) - Hearing dates within captions
• 9013-1(d) - Orders to accompany ex parte motions
• 9013-1(j) - Notices to accompany motions
B. INQUIRIES REGARDING THE ENTRY OF PLEADINGS ON THE DOCKET
Inquiries regarding the entry of pleadings on the docket should be directed to the Office of the Clerk of the Court at (602) 682-4000.
C. LODGING ORDERS
Uploaded orders should relate to the initiating motion or stipulation and not the notice of lodging or the certificate of service and no objection. Counsel is required to file the Notice of Lodging Proposed Order pursuant to Local Rule 9022-1.
D. INQUIRIES REGARDING THE STATUS OF ORDERS
Unless otherwise instructed by the court, please allow 10 business days to pass before inquiring about the status of an uploaded order. For questions regarding the status of lodged orders, contact Lupe Martinez at Lupe_Martinez@azb.uscourts.gov.
E. ACCELERATED OR EMERGENCY MOTIONS
The court does not attempt to “second guess” an attorney’s decision to move for an emergency hearing. In such an instance, the court will almost always set the matter promptly. The court urges counsel to consider the totality of the circumstances before filing such a request.
A party requesting an accelerated hearing pursuant to Local Rule 9013-1 must email a docketed copy of the Motion to Expedite Hearing to the courtroom deputy, Rebecca Volz at Rebecca_Volz@azb.uscourts.gov, and the law clerk, Eli Enger at Eli_Enger@azb.uscourts.gov. The court will review the request and determine whether to set the matter on an expedited basis or set the matter for hearing in the normal course (within approximately 35 days). If an accelerated or emergency hearing is granted, the courtroom deputy will inform the movant of the expedited hearing date and time and the proposed order shall be lodged thereafter. The order setting the expedited hearing and notice of hearing are to include specific dates by which responsive pleadings are to be filed and are to be served by the movant upon all interested parties.
F. LAST MINUTE FILINGS
Where time is short, i.e., less than 48 hours, the parties shall send copies of filed pleadings to Judge Whinery's law clerk, Eli Enger, via email at Eli_Enger@azb.uscourts.gov. The privilege to email documents to chambers should be used sparingly. All emails should be received no later than 4:00 p.m. on the business day prior to the hearing.
G. CONTESTED MOTIONS OR APPLICATIONS EXCEEDING 50 PAGES, INCLUDING MOTIONS FOR SUMMARY JUDGMENT
If a motion, pleading or application and its exhibits exceed 50 pages, including motions for summary judgment, the court may require that a courtesy copy be provided. Contact the courtroom deputy via email at least 14 days prior to the hearing date, if non-emergency, or as soon as possible before an accelerated or emergency hearing, for instructions regarding courtesy copies.
H. COURT MINUTE ENTRIES
The audio and minute entries for all court proceedings are available on the docket. Parties that did not attend a hearing may listen to the audio and review the minute entries on the docket.
I. OBTAINING TRANSCRIPTS
In order to obtain a transcript from a hearing for a Tucson or Yuma case, contact Alicia Johns, ECR Operator, via e-mail at Alicia_Johns@azb.uscourts.gov.
In order to obtain a transcript from a hearing for a Phoenix case, contact the ECR Operators via email at email@example.com or by phone at (602) 682-4200.
II. CALENDARING AND APPEARANCE INFORMATION
A. TO OBTAIN A HEARING FOR ANY MATTER
The moving party may request a hearing date by contacting the courtroom deputy, Rebecca Volz, via email at Rebecca_Volz@azb.uscourts.gov. The request must be accompanied by the ECF filing receipt for the pleading which will be the subject of the hearing. Counsel will then be provided with a hearing date and time. The moving party MUST give notice of the hearing to all interested parties and file a certificate of service. The matter will not be placed on calendar until counsel provides a copy of the ECF filing receipt for the Notice of Hearing via email to the courtroom deputy. The calendar is posted to the court’s web site at http://www.azb.uscourts.gov/court-calendars every Friday at 8:30 AM for the following week.
B. APPEARANCE INFORMATION
1. COURT LOCATIONS
James A. Walsh Federal Courthouse
38 S. Scott Avenue, Courtroom 446
Tucson, AZ 85701
US Courthouse and Federal Building
230 N. 1st Avenue, Courtroom 301
Phoenix, AZ 85003
US Courthouse and Federal Building
230 N. 1st Avenue, Courtroom 602
Phoenix, AZ 85003
John M. Roll United States Courthouse
98 W. 1st Street, Courtroom 1
Yuma, AZ 85364
2. VIDEO APPEARANCES
Video calendars save money for both the courts and counsel, and allow the court to hear more matters each month. Parties may appear by video for routine matters any time that video is available but video is not available for every hearing. Please consult the Notice of Hearing, the minute entry setting the hearing, or the court hearing calendar posted at http://www.azb.uscourts.gov/court-calendars to determine whether video is available for a particular hearing. The calendar is posted to the court’s web site at http://www.azb.uscourts.gov/court-calendars every Friday at 8:30 AM for the following week.
VIDEO APPEARANCES ARE NOT PERMITTED FOR EVIDENTIARY HEARINGS OR TRIALS.
3. TELEPHONIC APPEARANCES
a. POLICY GOVERNING TELEPHONIC APPEARANCES
Tucson attorneys are to appear in the Tucson courtroom, Phoenix attorneys are to appear in the assigned Phoenix courtroom and Yuma attorneys are to appear in the Yuma courtroom when the courtrooms are available. Tucson, Phoenix and Yuma counsel may only appear telephonically by permission in emergency situations or when the local courtroom is unavailable. Any interested party located outside of Tucson, Phoenix or Yuma may request permission to appear telephonically for routine matters.
UNLESS OTHERWISE ORDERED BY THE COURT, TELEPHONIC APPEARANCES ARE NOT PERMITTED FOR EVIDENTIARY HEARINGS OR TRIALS.
b. SCHEDULING A TELEPHONIC APPEARANCE
Parties may request permission to appear telephonically by sending an email to the courtroom deputy, Rebecca Volz at Rebecca_Volz@azb.uscourts.gov, at least 3 business days prior to the scheduled hearing, preferably at the time the moving papers are filed. Permission to appear telephonically at a previous hearing does not carry forward to future hearings. The email requesting permission is to include: the full name of the person appearing telephonically and their relationship to the case, case name, case number, and the contact information for a person to call if there are questions or concerns.
c. PROCEDURE FOR TELEPHONIC APPEARANCES
The phone line will not be open unless a party has received permission to appear telephonically. To ensure the quality of the record, callers are not permitted to use cellular phones or speaker phones.
Individuals making use of the conference line are cautioned that they do so at their own risk. Hearings will not be rescheduled due to missed connections or poor call quality.
Please note that you are dialing into a conference line which is immediately connected to the electronic recording equipment and broadcast through the courtroom’s speakers. The callers may only hear "airspace" until such time as the courtroom deputy opens the line. Additionally, although the parties may not be able to hear the court while waiting for their case to be called, the court can hear the parties. Callers are to place their phone on mute unless addressing the court. After the line is opened, cases will be called and the judge will request appearances and direct the manner in which each hearing proceeds. Each time you speak, identify yourself for the record. When your hearing is completed, you may disconnect.
C. REQUESTS TO CONTINUE OR VACATE MATTERS SET FOR HEARING
CHAMBERS BEGINS PREPARING FOR SCHEDULED HEARINGS AT LEAST 7 DAYS PRIOR. IF A REQUEST TO VACATE OR CONTINUE A HEARING IS RECEIVED WITHIN 7 DAYS OF THE HEARING, THE HEARING MAY PROCEED AS SCHEDULED DESPITE THE PARTIES’ REQUEST TO VACATE OR CONTINUE THE MATTER.
IF PARTIES INTEND TO APPEAR ONLY TO REQUEST A CONTINUANCE OR VACATE A MATTER, PLEASE INFORM THE COURTROOM DEPUTY VIA EMAIL AS SOON AS POSSIBLE.
1. REQUESTING A CONTINUANCE
a. CONTINUING AN UNCONTESTED MATTER
An uncontested matter* which is set for hearing may be continued by the movant. The movant shall email the courtroom deputy for a continued hearing date. The email shall indicate that the matter is uncontested. If the request to continue is granted, the courtroom deputy will email the movant with a new hearing date and time. The movant must file and serve a Notice of Continued Hearing. If the matter being continued is one that requires notice to the entire mailing matrix, the movant is responsible for noticing the entire mailing matrix. Parties should be prepared to appear at any scheduled hearing until the Notice of Continued Hearing has been docketed.
b. CONTINUING A CONTESTED MATTER
A contested matter* which is set for hearing may be continued by the parties via Stipulation to Continue. The parties shall file the stipulation and then one of the parties shall email the courtroom deputy to request a continued hearing date. If the request to continue is granted, the courtroom deputy will email the party with a new hearing date and time. One of the parties must file and serve a Notice of Continued Hearing. If the matter being continued is one that requires notice to the entire mailing matrix, the parties are responsible for noticing the entire mailing matrix. Parties should be prepared to appear at any scheduled hearing until the Notice of Continued Hearing has been docketed.
2. VACATING A HEARING
The movant may vacate a hearing by filing a Notice of Withdrawal and informing the courtroom deputy via email that the motion is no longer pending because it has been withdrawn.
If a matter is resolved via stipulation, the stipulation and/or the order approving such stipulation shall include language vacating any scheduled hearings.
A hearing regarding a contested matter may be vacated by the movant through the filing of a Motion to Vacate, or by opposing counsel through the filing of a Stipulation to Vacate. The motion/stipulation shall indicate why the matter is being vacated (i.e. if the matter has been resolved and, if so, how it has been resolved, or if the parties intend to vacate the matter subject to call). Once the motion/stipulation has been filed, the party shall notify the courtroom deputy via email of the request to vacate the hearing. The courtroom deputy will inform the party whether the hearing will proceed as scheduled or whether the hearing will be vacated. Parties should be prepared to appear at any scheduled hearing until receiving notice from the courtroom deputy that the hearing has been vacated.
*An "uncontested matter" refers to any matter where no objecting pleadings have been filed.
A "contested matter" refers to any matter where an objection or limited objection etc. has been filed.
III. SPECIFIC PROCEDURES (ALL CHAPTERS)
A. PRELIMINARY HEARINGS FOR LIFT STAY MOTIONS
Once a response has been filed, the moving party is responsible for requesting a preliminary hearing regarding the lift stay motion by contacting the courtroom deputy via email. Once a preliminary hearing date and time has been obtained, the movant shall notice the hearing out and forward a copy of the ECF receipt for the Notice of Hearing to the courtroom deputy for calendaring.
At the preliminary hearing it is generally the court’s practice to set a “one minute” final hearing to allow the parties time to negotiate a settlement. If the matter is not resolved by the “one minute” final hearing, the court will promptly set an evidentiary hearing if requested.
If no response is filed, the creditor may lodge a form of order. However, the order is not to include excessive “self-serving” language which is intended to deprive other interested parties of valuable rights. Examples of such overreaching language are:
• Waivers of the automatic 14-day stay of Local Rule 4001-1;
• Abandonment language (abandonment requests require notice on the entire creditor body pursuant to 11 U.S.C. § 554);
• Orders that require the debtors to surrender the collateral to the creditor (this is what state law provisional remedies are for!);
• Annulment of the stay (unless this remedy actually applies);
• Voluminous findings of fact (if an evidentiary hearing is needed, then the court can prepare findings).
B. BAR DATE/NEGATIVE NOTICE
In addition to the bar date procedures established by the Local Rules, and unless the court orders otherwise, the moving party may use a twenty-one (21) day bar date notice for the following matters:
• motions to continue the automatic stay pursuant to 11 USC 362(c)(3) if the debtor has provided evidence (via Declaration or verified pleading) addressing the requirements set forth in the Code;
• motion to extend Debtor’s exclusivity period (Chapter 11 only);
• motion for entry of discharge, entry of final decree and for order to close case (Chapter 11 only).
The party using the negative notice/bar date procedure must give detailed notice of the proposed motion or application and clearly state the requirement to respond within the time allowed. Movant must serve all parties entitled to notice and file a certificate of service. Upon expiration of the time allowed plus an additional three (3) days for service by mail, and provided there are no objections filed, the movant may file a certificate of service and no objection and lodge an appropriate form of order granting the relief requested. The lodged order is to conform to the relief requested in the motion or application.
If an objection to the motion or application is filed, the MOVANT is responsible for obtaining a hearing date from the courtroom deputy and upon receiving a hearing date, shall give notice of the hearing to all interested parties and file a certificate of service.
C. ORDERS FOR EMPLOYMENT OF PROFESSIONALS
The following language must be included in all orders for employment of professionals:
Approval of employment of a professional person DOES NOT automatically approve any fee arrangement set forth in the application or any attachments thereto. No fees are pre-approved by the court. Any request for a professional fee must be made separately, by a detailed application supporting the request, notice must be given to creditors and other parties-in-interest, and the court must have an opportunity to review any objections which any party may have. The court may also consider the application in the absence of any objections, and may adjust the fees according to the merits of the particular case. 11 U.S.C. §§ 327, 328, 329, 330, and 331.
IV. SPECIFIC PROCEDURES (CHAPTER 11)
A. FIRST DAY MOTIONS POLICIES
Parties are to notify chambers upon the filing of first day motions via e-mail at Rebecca_Volz@azb.uscourts.gov and Eli_Enger@azb.uscourts.gov. The Court may require hard copies of first day motions and proposed orders, including all exhibits, if the documents are voluminous. Contact the courtroom deputy via email as soon as possible before an accelerated or emergency hearing for instructions regarding the provision of hard copies.
B. CASH COLLATERAL
Cash collateral matters are the most critical “first day” or early motions. These matters will be set as quickly as possible, sometimes on the same day. The moving party should provide a proposed BUDGET (short-term) for the secured creditor’s review. The parties should confer on the budget, if possible, prior to the hearing. Orders concerning cash collateral will be promptly entered.
C. CASE MANAGEMENT ORDER
Immediately upon the filing of a new Chapter 11 case, a “Case Management Order” will be issued which sets the date for the Case Management Status Hearing. Counsel is to notice out the hearing. Counsel and the court shall address all issues set forth in the Order at the hearing.
D. ORDERS FOR EMPLOYMENT OF PROFESSIONALS
See Section III, paragraph C.
E. CLAIMS BAR DATE
The court requires 60 days notice of claims bar dates in Chapter 11 cases. This is important in connection with orders for hearings on disclosure statements that include a provision or statement with regard to the noticing of the claims bar date. Alternatively, the debtor may request a separate claims bar date by ex parte motion and order, without the need for a hearing, however creditors will need to be allowed at least 60 days notice to file their claims. Proof of service of the order upon all creditors and interested parties must be filed with the court.
V. SPECIFIC PROCEDURES (CHAPTER 13)
A. CHAPTER 13 ATTORNEY’S FEES ORDERS
This section currently under construction.
B. LIEN AVOIDANCE/”LIEN STRIPS”
Please use Judge Whinery's preferred form of order (or an order that addresses all points addressed in the preferred form of order) located on this procedure page.
VI. SPECIFIC PROCEDURES (LOAN MODIFICATIONS)
A. ORDER LANGUAGE
In addition to the requirements set forth in the Local Rules, any order for a loan modification shall also include the following language:
IT IS FURTHER ORDERED that, by granting the Motion, this Court expressly makes no findings, conclusions or rulings regarding the legal validity of the terms of the subject loan modification agreement.
VII. SPECIFIC PROCEDURES (EVIDENTIARY HEARINGS AND TRIALS)
A. SCHEDULING ORDER
The court will issue a scheduling order for all contested or adversarial matters set for evidence. Parties are to strictly comply with all deadlines and requirements set forth in the scheduling order or the hearing/trial may be vacated.
B. AFFIDAVITS OR DECLARATIONS
Unless otherwise ordered, the court will not accept affidavits or declarations as evidence over the objection of an opposing party. Prior to the hearing/trial, the parties shall stipulate which, if any, declarations or affidavits may be received into evidence without qualification, which may be received in evidence, provided the witness is available at the hearing for cross examination and which witnesses must testify on direct examination. Notwithstanding the parties' agreement, the court may require any witness' testimony to be provided by direct examination.
VIII. CONTACT INFORMATION
Rebecca Volz, Courtroom Deputy
Eli Enger, Law Clerk
Sherry Leavitt, Judicial Assistant
B. DELIVERY ADDRESS
United States Bankruptcy Court
38 S. Scott Avenue, Room 100
Tucson, AZ 85701-1608
IX. FILES FOR DOWNLOAD:
Procedures updated on 01/06/2017.