The following definitions shall apply in interpreting this rule:
(1) A business day shall include any day other than a Saturday, Sunday, or a legal holiday as defined by Fed.R.Civ.P. 6(a).
(2) The date of presentment shall refer to the day on which the motion is to be presented in open court according to the notice required by section B of this rule.
B. Fixing the Date of Presentment; Notice of Presentment
The date of presentment contained in a notice of motion shall be within 14 calendar days of the service of the notice, unless applicable statutes or rules require a longer service period, in which case the date of presentment shall be within 7 calendar days of the expiration of the required notice period. The date of presentment may be modified by the court by standing order in counties other than Cook in order to accommodate the dates when the court sits.
C. Selection of Dates for Hearings Required to Be Set by the Court
For any motion governed by Bankruptcy Rules 2002(a)(2) (use, sale, or lease of estate property out of the ordinary course of business), 2002(a)(3) (approval of settlement or compromise), 2002(a)(5) (conversion or dismissal of Chapter 7 and Chapter 11 cases), and 2002(a)(7) (compensation or reimbursement of expenses) counsel is not required to appear in court to obtain a date for presentment of the motion. Counsel may present such motions in the ordinary course, at any regular motion call, upon proof of service indicating that not less than the required 20-day notice has been provided in compliance with section B of this rule. If notice of dismissal is to be given by the Court then Rule 701 of these rules shall apply.
D. Date of Filing of a Motion.
The date of filing of a motion will be the date on which the copy of the motion was delivered in accordance with the provisions of section G. of this rule.
E. Notice of Motion; Use of Overnight Service & Electronic Facsimile Transmission (FAX); Certificate of Service
(1) Except in the case of an emergency, written notice of the intent to present a motion must be personally served at or before 4:00 o'clock p.m. of the second business day preceding the date of presentment. Where service of such notice is by mail, the notice shall be mailed at least five business days before the date of presentment. The written notice shall specify the motion to be presented, date of presentment, time of presentment, and the judge before whom the motion will be presented. Any motion not noticed in accord with this rule may be stricken by the court without notice. Ex parte motions and motions presented on stipulation may be presented without notice, directly to the judge's courtroom deputy without compliance with section G of this rule.
(2) For the purpose of this section, personal service shall include actual delivery within the time specified by this section by a service organization providing for delivery within a specified time (e.g., overnight service) or by facsimile transmission (FAX).
(3) Each motion other than one filed ex parte shall be accompanied by a certificate of service indicating the date and manner of service and a statement that copies of documents required to be served by Fed.R.Bankr.P. 7005 (Fed.R.Civ.P. 5(a)) have been served.
(4) Where the service was by FAX, the certificate shall be accompanied by a copy of the transaction statement produced by the FAX machine. Such transaction statement shall include the date and time of service, the telephone number to which the documents were transmitted, and an acknowledgement from the receiving FAX machine that the transmission was received or, in the event that the receiving FAX machine did not produce the acknowledgement to the transmitting FAX machine, an affidavit or, if by an attorney, a certificate setting forth the date and time of service and telephone number to which documents were transmitted.
Electronic transmission of documents to the court is not permitted under this rule.
F. Date of Request to Modify Stay under 11 U.S.C. §362
The date of presentment is the date of request to modify stay under §362 of the Bankruptcy Code, provided movant has complied with service requirements under Fed.R.Bankr.P. 9014 and other requirements under local Bankruptcy Rules.
G. Copies of Motion to be Delivered to Clerk
(1) The procedures set forth in this section shall apply to all cases and proceedings arising under or related to the Bankruptcy Code.
(2) The original and one copy of each motion shall be delivered to the clerk by 4:30 p.m. on the second business day preceding the date of presentment, regardless of the location of the offices of moving counsel, unless delivery is directed otherwise by the judge. Copies of all motions delivered to the clerk shall be accompanied by proof of service of a written notice of motion as provided by section E of this rule. The person receiving the copies shall record on the motion the date on which it was received. Motions delivered to the Court or filed without proof of service of written notice of motion may be stricken by the court without notice
I. Disposition of Motion for Failure to Prosecute
Should the moving party or its counsel deliver a motion to the clerk or chambers but fail to appear and prosecute the motion at the time and place noticed, the court may without notice deny the motion or strike the motion for want of prosecution. If an opposing party or its counsel appears in response to any notice of motion not presented, the court may also upon notice and motion by that party tax and assess reasonable and necessary expenses and fees incurred as a result of the failure to prosecute the motion.
J. Copies of Motion Exhibits to Be Served
Where the motion, by reference to specified exhibits makes those exhibits part of the motion, legible copies of the specified exhibit shall be appended to and served with the motion and notice, unless excused by court order.
K. Motions for Discovery and Production; Statement of Efforts to Reach an Accord
The court shall not hear motions for discovery under Fed.R.Civ.P. 26 through 37, and corresponding Fed.R.Bankr.P. with respect thereto, or pertaining to discovery permitted to be conducted under Rule 2004, unless the motion includes a statement that (1) after consultation in person or by telephone and good faith attempts to resolve differences, the parties are unable to reach an accord, or (2) moving counsel's attempts to engage in such personal consultation were unsuccessful due to no fault of counsel. Upon failure to comply with the provisions of this paragraph, the court may impose sanctions including striking the motion and other sanctions authorized under Fed.R.Civ.P. 26 through 37 (Fed.R.Bankr.P. 7026 through 7037). Where the consultation occurred, this statement shall recite, in addition, the date, time, and place of such conference, and the names of all parties participating therein. Where counsel was unsuccessful in engaging in such consultation, the statement shall recite the efforts made by counsel to engage in consultation.
L. Minute Order Forms and Orders to be Presented with Motions
Each written motion shall be accompanied by a minute order form and proposed draft order.
(1) Minute Order Forms: The clerk shall provide, on request, blank minute order forms for use in complying with this rule. Only minute order forms provided by the clerk or reproductions of such forms will be accepted as complying with this rule.
(2) Draft Orders: Proposed draft orders shall have descriptive titles referring to the relief granted (e.g., Order Allowing Debtor's Motion to Modify Stay ), and shall state the first day the date of presentment of the related motion in open court. If hearing or trial is set within the order, the title shall include the phrase setting hearing or setting trial, and identify the issue to be heard. In lieu of a separate draft order, the moving party may submit a minute order form wherein the requirements for both minute orders and draft orders are complied with.
M. Motions for Summary Judgment; Moving Party
With each motion for summary judgment filed pursuant to Fed.R.Civ.P. 56 (Fed.R.Bankr.P. 7056), the moving party shall serve and file:
(1) any affidavits and other materials referred to in Fed.R.Civ.P. 56(e);
(2) a supporting memorandum of law; and
(3) a statement of material facts as to which the moving party contends there is no genuine issue and that entitles the moving party to judgment as a matter of law that includes:
(a) a description of the parties; and
(b) all facts supporting venue and jurisdiction in this Court.
The statement of facts referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial of the motion.
If additional material facts are submitted by the opposing party pursuant to section N of this rule, the moving party may submit a concise reply in the form prescribed in section N for a response. All material facts set forth in the statement filed pursuant to section N(3)(b) will be deemed admitted unless controverted by the statement of the moving party.
N. Motions for Summary Judgment; Opposing Party
Each party opposing a motion under Fed.R.Civ.P. 56 (Fed.R.Bankr.P. 7056) shall serve and file the following:
(1) any opposing affidavits and other materials referred to in Fed.R.Civ.P. 56(e);
(2) a supporting memorandum of law; and
(3) a concise response to the movant's statement of facts that shall contain:
(a) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon; and
(b) a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon. All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.
O. Briefing Schedule; Copies and Service of Memoranda; Oral Argument
The court may set a briefing schedule. All memoranda shall be filed in duplicate, and copies shall be served upon all other parties entitled to notice. Proof of service shall be filed with the original copy. Oral arguments may be allowed in the courtís discretion.
P. Disposition of Motion Following Failure to File Supporting or Answering Memorandum
Failure to file a supporting or answering memorandum shall not be deemed to be a waiver of the motion or a withdrawal of opposition thereto, but the court on its own motion or that of a party may strike the motion or grant the same without further hearing. Failure to file a reply memorandum within the requisite time shall be deemed a waiver of the right to file.
Q. Request for Decision; Request for Status Report
Any party may, on notice provided for by section E of this rule, call a motion that is fully briefed and ready for decision to the attention of the judge for decision.
Any party may also request the clerk of the Court or a deputy designated by the clerk to report on the status of any motion on file for at least seven months without a ruling or on file and fully briefed for at least sixty days. Such requests will be in writing. On receipt of a request the clerk will promptly verify that the motion is pending and meets the criteria fixed by this section. If it is not pending or does not meet the criteria, the clerk will so notify the person making the request. If it is pending and does meet the criteria, the clerk will thereupon notify the judge before whom the motion is pending that a request has been received for a status report on the motion. The clerk will not disclose the name of the requesting party to the judge. If the judge provides information on the status of the motion, the clerk will notify all parties. If the judge does not provide any information within ten days of the clerkís notice to the judge, the clerk will notify all parties that the motion is pending and that it has been called to the judgeís attention.
R. Clerk's Processing of Motions and Applications
Upon the tender of any motion or application, the clerk shall stamp all copies Received along with the date thereof and forward the original and copy of each of the papers to the judge to whom the motion or application is to be presented. Upon presentment of the motion or application to the judge in open court, the clerk shall stamp the original Filed along with the date thereof.
S. Service of Copies of Orders
Unless excused by the court, counsel for the party that drafted the order that is entered will serve copies of that order forthwith upon receipt thereof, conformed to the order actually entered. The conformed order shall be served on all entities of record whose rights or interests are directly and adversely affected thereby. If the draft order appended to the motion is entered without modification, there is no need to re-serve it. Service may be made by first class mail unless otherwise ordered.
Committee Note: Rule 402 is a modification of local General Rule 12.
Section B provides requirements for fixing the day of presentment and provides the motion may be dismissed sua sponte if the procedures are not followed. See section I of local General Rule 12.
Section C of General Rule 12 is omitted in view of pleading requirements in Fed.R.Bankr.P. 9013. The procedures set out in Section C of this rule were initially set out in the General Order of 30 November 1989. They eliminate the need for counsel to appear twice, the first time merely to obtain a hearing date at the end of the requisite notice period.
Section E is based on section E of General Rule 12. The major differences are its reference to the time at which the motion is to be presented and the provision for striking motions not noticed in accordance with this rule.
Section If differs from General Rule 12 F. It fixes the date of request that triggers the first 30-day period for ruling under 11 U.S.C. §362. Section If is intended to emphasize the general view that the thirty-day period to hold hearings on motions to modify stay starts when the request is made in open court. The general provision in Section A is not deemed sufficient to alert counsel to this application.
Section G is modified to put responsibility on the court rather than on the clerk to determine adequacy of notice of motions.
Section H is omitted as redundant in view of Rule 203(c). However, the section number is left in with the designation Reserved in order that the remaining sections conform to the section numbers in General Rule 12.
Section I is revised to provide sanctions for non-appearance in court by moving counsel or party.
Section J requires appended exhibits to be legible, a necessary emphasis in view of occasional illegible exhibits attached to motions. It also permits service of bulky exhibits to be excused by court order or limited to those parties in need of such copies, given the broad categories of parties required to be noticed.
Section L is modified to require information on draft orders to aid in docketing of the order and identification of the motion giving rise to the relief.
Sections M, N, O, and Q have been revised to track the revisions to sections M, N, O, and Q of General Rule 12.
Section R, previously designated S, sets out a procedure similar to that found in section If of local General Rule 12.
Section S, previously designated T, is added to ensure that all affected parties are given copies of the orders as entered.
