2017 Commercial & Bankruptcy Law Seminar

Transcription

1 2017 Commercial & Bankruptcy Law Seminar How to Do It Right the First Time: Proper Notice and Procedure 2:45 p.m. - 3:30 p.m. Presented by Hon. Thomas Saladino Chief Bankruptcy Judge United States Bankruptcy Court District of Nebraska 111 South 18th Plaza, Suite 1125 Omaha, NE Hon. Shon Hastings Chief Bankruptcy Judge United States Bankruptcy Court District of North Dakota Quentin N. Burdick United States Courthouse st Avenue North Fargo, ND Friday, May 12, 2017

2 NOTICE, NOTICE, NOTICE

3 Rule No. 1

4 RULES TO BE AWARE OF: FEDERAL RULES LOCAL RULES Such as

5 Example: Federal Rule 4001 (a) Relief From Stay; Prohibiting or Conditioning the Use, Sale, or Lease of Property. (1) Motion. A motion for relief from an automatic stay provided by the Code or a motion to prohibit or condition the use, sale, or lease of property pursuant to 363(e) shall be made in accordance with Rule 9014 and shall be served on any committee elected pursuant to 705 or appointed pursuant to 1102 of the Code or its authorized agent, or, if the case is a chapter 9 municipality case or a chapter 11 reorganization case and no committee of unsecured creditors has been appointed pursuant to 1102, on the creditors included on the list filed pursuant to Rule 1007(d), and on such other entities as the court may direct.

6 Example: ND IA The Bankruptcy Court for the Northern District of Iowa has 77 Local rules, many of which tell you who and how to serve notice. For example, Rule on Lien Avoidance says: Movant must serve a copy of the motion together with a notice of the right to object to the motion upon all affected creditors, the trustee and the United States trustee, and shall promptly file a proof of service.

7 Example: Nebraska The Local Rules of the Bankruptcy Court for the District of Nebraska can be found on its website and consist of appendices and index. 95 pages, including Ex:Local Rule (E) provides in part: At the time a motion is filed, the moving party shall serve the motion on and shall provide notice to all partiesin-interest and those that have requested notice pursuant to Fed. R. Bankr. P

8 Example: SD IA The website of the Bankruptcy Court for the Southern District of Iowa tells us this about their local rules: Effective August 4, 2003, this court's local rules were abolished. Attorneys and pro se parties shall consult the Federal Rules of Bankruptcy Procedure. See generally Part 3 (including appendices) of the court's former CM/ECF User's Guide for guidance regarding filing and service requirements. Note these materials were created in 2003 and will be updated at a later date. Part 3 of the User's Guide (71 pages) Appendix A (Dismissals) (10 pages) Appendix B (Conversions) (11 pages)

9 NOW THAT YOU KNOW WHO TO SERVE (or at least know where to look to determine WHO to serve), BE SURE YOU KNOW HOW TO DO IT PROPERLY.

10 Federal Rule of Bankruptcy Procedure 7004(b)(1), (3), (4) (b) Service by First Class Mail. Except as provided in subdivision (h), in addition to the methods of service authorized by Rule 4(e)-(j) F. R. Civ. P., service may be made within the United States by first class mail postage prepaid as follows: (1) Upon an individual other than an infant or incompetent, by mailing a copy of the summons and complaint to the individual s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.

11 Federal Rule of Bankruptcy Procedure 7004(b)(1), (3), (4) (3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association, by mailing a copy of the summons and complaint to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.

12 Service on Domestic or Foreign Corporation, Partnership, or Other Unincorporated Association Mr. John Smith, President ABC Corporation, Inc. 123 Main Street Omaha, NE OR Ms. Jane Doe, Registered Agent For XYZ Corporation, Inc. 456 Anywhere Street Lincoln, NE 68501

13 Federal Rule of Bankruptcy Procedure 7004(b)(1), (3), (4) (4) Upon the United States, by mailing a copy of the summons and complaint addressed to the civil process clerk at the office of the United States attorney for the district in which the action is brought and by mailing a copy of the summons and complaint to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or an agency of the United States not made a party, by also mailing a copy of the summons and complaint to that officer or agency. The court shall allow a reasonable time for service pursuant to this subdivision for the purpose of curing the failure to mail a copy of the summons and complaint to multiple officers, agencies, or corporations of the United States if the plaintiff has mailed a copy of the summons and complaint either to the civil process clerk at the office of the United States attorney or to the Attorney General of the United States.

14 Federal Rule of Bankruptcy Procedure 7004(h) (h) Service of Process on an Insured Depository Institution. Service on an insured depository institution (as defined in section 3 of the Federal Deposit Insurance Act) in a contested matter or adversary proceeding shall be made by certified mail addressed to an officer of the institution unless (1) the institution has appeared by its attorney, in which case the attorney shall be served by first class mail; (2) the court orders otherwise after service upon the institution by certified mail of notice of an application to permit service on the institution by first class mail sent to an officer of the institution designated by the institution; (3) the institution has waived in writing its entitlement to service by certified mail by designating an officer to receive service.

15 The Federal Deposit Insurance Act defines insured depository institution as any bank or savings association the deposits of which are insured by the [FDIC] pursuant to this Act.

16 Service on an Insured Depository Institution CERTIFIED MAIL RETURN RECEIPT REQUESTED ABC Bank c/o John Smith, President 123 Main Street Omaha, NE OR FIRST CLASS MAIL Attorney of record for the Bank

17 Federal Rule of Bankruptcy Procedure 9014(a), (b) Notice in Contested Matters (a) Motion. In a contested matter not otherwise governed by these rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought. No response is required under this rule unless the court directs otherwise. (b) Service. The motion shall be served in the manner provided for service of a summons and complaint by Rule 7004 and within the time determined under Rule 9006(d). Any written response to the motion shall be served within the time determined under Rule 9006(d). Any paper served after the motion shall be served in the manner provided by Rule 5(b) F. R. Civ. P.

18 Ex: NEB Local Rule Motions for Lien Avoidance B. If a proof of claim has been filed by the creditor whose lien is to be avoided, the motion to avoid lien and notice pursuant to Neb. R. Bankr. P shall be served on the creditor at the address for notice set forth in the proof of claim. If no proof of claim has been filed, the motion and notice pursuant to Neb. R. Bankr. P shall be served on the creditor in a manner that would be sufficient service of process under the Federal Rules of Civil Procedure. If no resistance is timely filed pursuant to Neb. R. Bankr. P , the Court will enter an order.

19 Service of Process Motions for Lien Avoidance If a proof of claim has been filed: Notice should be sent to address listed therein for notice (not payment address). If proof of claim has not been filed: Notice should be sent in a manner that would be sufficient service of process under the Federal Rules of Civil Procedure.

20 The goal is to ensure that the court can exercise jurisdiction over an entity whether it has subjected itself to the jurisdiction of the court by filing a proof of claim, or whether jurisdiction has been achieved through proper service of process.

21 INCORRECT Notice Examples ABC Bank P.O. Box Omaha, NE OR ABC Bank 123 Main Street Omaha, NE OR Upon an attorney not of record

22 Example of Non-Identifiable Defendant John Smith vs. Americana * There is nothing to properly identify Americana what type of entity it may be, where it is organized, whether it has a registered agent in this state, etc. There could be numerous entities containing the word Americana, and it is impossible to determine which entity is the defendant. A lawsuit against a defendant simply identified as Americana is effectively a suit against no one. *Fictitious

23 Summary Review Local and Federal Rules to know who needs to be notified. Properly identify each notice and adverse party with its full and proper name. Give notice in the manner required by the rules, including proper service of process in contested matters and adversary proceedings.

24 Tips on How to Prove Your Case

25 Advance Planning A. Elements of the Claim or Request for Relief i. Bankruptcy Law ii. State Law iii. Current Law B. Burden of Proof C. Standard of Review

26 Elements this isn t chemistry

27 Follow the Local Rules A. Attach necessary proof B. Notice interested parties

28 Evidence Issues

29 Make a Record A. Exhibits attached to pleadings are not evidence unless received i. Kaler v. Kana (In re Kana), 2001 WL (Bankr. D.N.D. 2011) B. Affidavit Evidence i. When to use it; when to object to it Dates, times, documents Intent ii. Admissibility C. Witnesses i. Know what they are going to say ii. Prepare them

30 Make a Record, Cont. D. Tricky Rules of Evidence i. Judicial Notice Not subject to reasonable dispute Capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned

31 Make a Record, Cont. D. Tricky Rules of Evidence, Cont. i. Business Records It was the regular practice of the business to make the record The record was kept in the regular course of the business The record was made by a person with knowledge of the facts contained in the record The record was made near or at the time of the event recorded ii. What s Not a Business Record Third-party correspondence Documents prepared in anticipation of litigation

32 Oral Argument A. Anticipate the issues B. Know your weaknesses C. Update your research

33 Research is for sissies!