Presides in Tucson Courtroom 329
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:
• 1015-1 - Joint Administration/Consolidation
• 2002-2 - Procedures for 21-Day Negative Notice
• 2084-10 - Trustee's Recommendation/Objection
• 2084-15 - Trustee Motion to Dismiss
• 2084-25 - Sale of Property or Incurring New Debt (Chapter 13 only)
• 3003-1 - Filing Proof of Claim or Equity Security Interest in Chapter 9 and Chapter 11 Cases
• 4001-1 - Automatic Stay - Relief From or Absence of
• 6004-1 - Sales Not in the Ordinary Court of Business
• 9013-1 - Motions Practice
• 9022-1 - Judgments or Orders
1. LOCAL RULES 7037-1 and 9013-1(e)-(f)
Notwithstanding Local Rules 7037-1 and 9013-1(e)-(f), parties are directed to NOT call chambers prior to filing a discovery related motion. Parties are permitted to file discovery related motions without prior Court approval, but should pay close attention to the requirements in Rules 7030-7037 pertaining to time, good faith consultation, and sanctions.
2. LOCAL RULES 9013-1(l) and 2002-2
As a limited exception to Local Rules 9013-1(l) and 2002-2, Judge Gan will no longer accept a 21-day negative notice/bar date procedure for objections to exemptions claimed by the debtor. Pursuant to Federal Rule of Bankruptcy Procedure 4003(c), the objecting party bears the burden of proving that an exemption is not properly claimed. Thus, it is the Court’s opinion that granting the objecting party relief through a negative notice/bar date procedure improperly omits that requisite burden.
As the filing of an objection to a claim of exemption creates a contested matter, such objections shall also comply with Federal Rules of Bankruptcy Procedure 9013 and 9014 and the applicable provisions of Local Rule 9013-1. Upon filing an objection to a claim of exemption, the objecting party shall obtain a hearing date from the courtroom deputy, Teresa Mattingly, in compliance with the Court’s procedure below. See Subsection “A. Obtaining Hearing Dates.” The objecting party shall then give notice of the hearing to all interested parties and file a certificate of service.
Notwithstanding the setting of a hearing on the objection, the parties may resolve the matter prior to the hearing. If the objection is resolved, the parties may file a stipulation and order, or the objecting party may move to withdraw the objection on the docket. The parties may therein request to vacate the hearing on the objection. If the objection is not resolved prior to the hearing, the parties shall appear at the hearing as scheduled. At such hearing, the Court will adjudicate the issues presented by the objection.
B. 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. Counsel are requested to consider the totality of the circumstances before filing such a request.
A party requesting an accelerated hearing pursuant to Local Rule 9013-1(h) must email a copy of the docketed motion along with the motion to expedite hearing to the Judge's Courtroom Deputy, Teresa Mattingly, at Teresa_Mattingly@azb.uscourts.gov with a copy to the Law Clerk, Nicole Brindejonc, at Nicole_Brindejonc@azb.uscourts.gov.
If after reviewing the the motion the Court is inclined to grant it, the Courtroom Deputy will inform the movant of the expedited hearing date and time. The movant must then lodge a form order granting the expedited hearing. 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. However, the court may, after review of the request, deem the matter to be routine and set it in the ordinary course within approximately thirty (30) days.
C. MOTIONS FOR CONTINUATION OF THE AUTOMATIC STAY
Motions for continuation of the automatic stay pursuant to § 362(c)(3) and motions for the automatic stay to take effect pursuant to § 362(c)(4) should be filed at the time of filing the petition to ensure adequate time for a hearing. Counsel are advised that hearings on these motions should be noticed with a provision that if there are no objections filed within five (5) days of the hearing date, the Court may accept evidence through declarations or verified pleadings and may vacate the hearing.
The following required language should be used when submitting Orders Extending Stay Under §362(C):
"Extending the stay under §362(C) until further order of this Court"; or
"Extending the stay under §362(C) unless modified by this Court in a subsequent order".
D. LAST MINUTE FILINGS/LATE FILED PLEADINGS
E. CONTINUANCES & RESOLUTION OF MATTERS SET FOR HEARING
Any request to continue or vacate a hearing requires a motion and an uploaded order. Motions and the corresponding orders to vacate or continue a hearing should be filed no less than forty-eight hours prior to the scheduled hearing time. Parties should be prepared to appear at any scheduled hearing until receiving notice that the motion has been granted. The proposed order should include the hearing date and time in the caption.
Parties should contact the Courtroom Deputy to obtain a continued hearing date prior to uploading a continuance order, and include the date and time in the order. Proposed orders with blank hearing dates will be deleted and the requesting party informed. If granted, the requesting party shall either serve the signed order and/or file a new form of notice for the continued hearing and notice it out. A copy of the signed continuance order and/or notice of hearing is to be sent to the Courtroom Deputy for calendaring.
F. LODGING ORDERS AND INQUIRIES REGARDING THE STATUS OF 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. For questions regarding the status of lodged orders, please contact Alicia Johns at 520-202-7556, Alicia_Johns@azb.uscourts.gov .
G. EXHIBIT PROCEDURES
1. ATTORNEY EXHIBITS
All exhibits presented at trial before Judge Gan are required to be presented electronically. This applies to all trials held in Tucson, Phoenix or Yuma . This does not apply to pro se parties. Electronic exhibits may be presented in the courtroom in the following formats: Thumb drive, Audiotape, Videotape, Electronically filed documents, Power Point, or other exhibit programs, such as Sanctions or Trial Director. The Courtroom Deputy will not mark the electronic exhibit with a traditional exhibit tag. Instead, counsel and/or parties are to work together to properly mark the exhibits and to provide an electronic list of all exhibits to the Courtroom Deputy. (Sample of Exhibit list below - Exhibit List Form - Word version) Please contact Teresa Mattingly if you have any questions about the format. Counsel are required to supply their own laptop on which they will display the exhibits. The courtroom is able to readily support a VGA or HDMI connection to the courtroom audio/video system. If counsel's laptop is anything other than a Windows laptop that uses a VGA or HDMI connection, they should contact the Courtroom Deputy at least one week prior to the trial to make special arrangements.
Counsel are to provide one official copy of the exhibits at least 72 hours prior to trial to the Courtroom Clerk on a Thumb Drive (or CD-Rom).
2. ADMISSION OF EXHIBITS
A stipulation for admission of exhibits will not result in their admission unless referenced and discussed during the trial proceedings.
3. NUMBERING OF EXHIBITS
The Courtroom Deputy will not mark the electronic exhibit with a traditional exhibit tag. Debtors must label their exhibits as letters (e.g, Exhibit A, Exhibit B) and opposing parties must label their exhibits as numbers (e.g., Exhibit 1, Exhibit 2). Counsel should avoid marking duplicate exhibits. Either side may move the other side’s exhibit(s) into evidence.
4. ADDITIONAL EXHIBITS INTRODUCED AT TRIAL OR HEARING
If exhibits are added after the original CD Rom or thumb drive is submitted to the clerk, counsel must provide the clerk with a new CD Rom or thumb drive containing the additional exhibits, and an updated copy of the exhibit list Exhibit List Form - Word version.
5. RETURN OF EXHIBITS
Pursuant to Local Rule 5005-1
(b) Exhibits. Exhibits in the custody of the Clerk after being marked for identification or having been introduced and/or admitted into evidence shall be disposed of as follows:
(1) Returned to the party who offered the exhibit if the Clerk receives a written request for their return within thirty (30) days after the time for taking an appeal has expired or after an appeal has become final.
(2) If not returned pursuant to a timely request, the Clerk will destroy the exhibits.
6. PRO SE EXHIBITS
Exhibits should be brought to the courtroom in tabbed and indexed exhibit books at the time of commencement of any trial/evidentiary hearing. The Court requires one original exhibit book, which the witness may use during testimony, one bench copy and one copy for opposing counsel. Each exhibit book should also contain an index of the exhibits. (Sample of Exhibit list below - Exhibit List Form - Word version)
II. CASE SPECIFIC INFORMATION
A. CHAPTER 11 CASES
1. CHAPTER 11 FIRST DAY MOTIONS POLICIES
The Court requests that copies of first day motions and orders, including all exhibits, be provided to chambers by e-mail at Teresa_Mattingly@azb.uscourts.gov with a copy to Nicole_Brindejonc@azb.uscourts.gov. The Court will make every effort to promptly review all motions and forms of order and arrange a timely hearing.
2. CHAPTER 11 CASE MANAGEMENT ORDER
Upon filing of a new Chapter 11 case, the Court issues a “Case Management Order” 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 time of the hearing.
3. CHAPTER 11 CASH COLLATERAL
Cash collateral matters are the most critical “first day” or early motions. The Court will set these matters as quickly as it can, 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.
4. CHAPTER 11 ORDERS FOR EMPLOYMENT OF PROFESSIONALS
Please include the following language on employment orders:
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.
5. CHAPTER 11 CLAIMS BAR DATE (Local Rule 3003-1)
The Court requires compliance with Local Rule 3003-1. The Court requires use of Local Rule Form 3003-1 or Local Rule Form 3003-2.
6. APPROVAL OF DISCLOSURE STATEMENT AND SETTING OF CONFIRMATION HEARING
The Court requires use of Local Rule Form 3003-3.
B. CHAPTER 13 CASES
1. CHAPTER 13 AVOID/STRIP LIENS
Please use Judge Gan's preferred form of order (or a version with all the specifics included), which is located as the last item on this procedure page.
C. CHAPTER 7 CASES
1. FEE APPLICATIONS FOR TRUSTEE'S COUNSEL
Attorney fee applications submitted by counsel for the Chapter 7 Trustee must state in the caption whether the application is an interim or final application.
Final fee applications requesting payment of attorneys' fees to counsel for the Chapter 7 Trustee: (1) must disclose the estimated return to unsecured creditors in the case; and (2) will not be considered until the Trustee's Final Report has been filed with the Court.
2. DISCLOSURE OF ATTORNEY FEE AGREEMENTS
Every agreement that pertains, directly or indirectly, to the compensation paid or to be paid to or for the benefit of the debtor’s attorney, must be attached to the attorney’s Rule 2016(b) disclosure.
Any agreement entered into after the filing of counsel’s initial Rule 2016(b) disclosure must be filed as a supplement to that disclosure within 14 days of the date the agreement is entered into.
Agreements subject to this procedure include, but are not limited to, retention agreements, fee and expense agreements, wage assignments, security agreements of all kinds, and financing agreements.
III. CALENDARING AND APPEARANCE INFORMATION
A. OBTAINING HEARING DATES
Parties filing motions which cannot be granted on an ex-parte basis must set a hearing or use a negative notice procedure to obtain relief. Parties must obtain a hearing date by contacting the Courtroom Deputy, Teresa Mattingly, by e-mail at Teresa_Mattingly@azb.uscourts.gov. The request for hearing must be accompanied by a copy of the “ECF Filing Receipt”. Counsel will then be provided with a hearing date and time for the notice. Once a hearing date is obtained the moving party must provide notice to all interested parties and file a certificate of service, as well as e-mail the Courtroom Deputy a copy of the hearing notice and ECF receipt for calendaring purposes.
APPEARANCE INFORMATION (Pursuant to General Order 20-3, in person appearances are suspended until further notice):
TUCSON (Courtroom #329)
United States Bankruptcy Court
James A. Walsh Federal Courthouse
38 South Scott Avenue, Suite 100,
Tucson, AZ 85701-1608
PHOENIX (Courtroom #301, unless otherwise assigned)
United States Bankruptcy Court
U.S. Courthouse and Federal Building
230 North 1st Avenue, Suite 101
Phoenix, AZ 85003
United States Bankruptcy Court
John M. Roll U.S. Courthouse
98 West 1st Street, Suite 270
Yuma, AZ 85364
B. PRELIMINARY HEARINGS/LIFT STAYS
Once a response has been filed, the moving party is responsible for scheduling a preliminary hearing on the lift stay motion by contacting the Courtroom Deputy, Teresa Mattingly, by e-mail at Teresa_Mattingly@azb.uscourts.gov. The movant is responsible for noticing and sending the Courtroom Deputy a copy of the notice and ECF receipt for calendaring.
At the Preliminary Hearing it is generally the Court’s practice to set a “1 Minute” Final Hearing to allow the parties to negotiate a settlement. If the matter is not resolved by the time of the “1 Minute” Final, the Court will promptly set an evidentiary hearing.
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 Rule 4001;
• Abandonment language (abandonment requests require notice on the entire creditor body. See 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 you desire an evidentiary hearing, then the court can prepare findings).
C. APPEARANCE INFORMATION
PARTIES ARE DIRECTED TO REVIEW ORDERS SETTING HEARING AND NOTICES TO CONFIRM THE MANNER IN WHICH THE COURT WILL HOLD A PARTICULAR HEARING.
1. POLICY GOVERNING TELEPHONIC APPEARANCES
Attorneys are to appear by videoconference when available. Counsel may only appear telephonically by permission in emergency situations. Permission to appear telephonically is not guaranteed.
UNLESS OTHERWISE ORDERED BY THE COURT, TELEPHONIC APPEARANCES ARE NOT PERMITTED FOR EVIDENTIARY HEARINGS OR TRIALS.
2. SCHEDULING A TELEPHONIC APPEARANCE
Parties may request permission to appear telephonically by sending an email to the courtroom deputy, Teresa Mattingly at Teresa_Mattingly@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 guarantee it will be granted for subsequent 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.
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.
3. VIDEO APPEARANCES
All routine hearings held before the Honorable Scott H. Gan are to be conducted by videoconference using the Zoom for Government platform. Parties are directed to review the case docket to confirm the manner in which the Court will conduct a specific hearing. All participants are encouraged to review the Videoconference Hearing Guidelines posted at the Court’s website on the front page.
4. IN-PERSON HYBRID APPEARANCES (i.e. in-person appearances combined with video conference).
Hybrid Appearances are reserved for trials and evidentiary hearings only. The Court will determine whether hybrid appearances are necessary on a case-by-case basis when scheduling a trial/evidentiary hearing or at the request of counsel.
5. TRIALS/EVIDENTIARY HEARINGS/ORAL ARGUMENT
Requests by counsel to set a hearing in-person will be considered on a case-by-case basis when scheduling a trial/evidentiary hearing/oral argument.
In order to obtain a transcript from a Tucson or Yuma hearing, contact Alicia Johns, ECR Operator, 520-202-7556 or e-mail at Alicia_Johns@azb.uscourts.gov.
In order to obtain a transcript from a Phoenix hearing, contact the PhoenixCourt’s ECR Operators by phone at 602-682-4200 or email at firstname.lastname@example.org.
Mary Ellen Butera, Judicial Assistant
Nicole Brindejonc, Law Clerk
Teresa Mattingly, Courtroom Deputy
For status on orders, contact: Alicia Johns at 520-202-7556, Alicia_Johns@azb.uscourts.gov.
Files for download:
Preferred Form of Order Avoiding a Lien on Real Property (Chapter 13)
Exhibit List Form - Word version
Trial Scheduling Order
Evidentiary Hearing Scheduling Order
Local Rule Form 3003-1
Local Rule Form 3002-2
Local Rule Form 3003-3