Judge Michael J. Kaplan (Retired)

Staff Information

Chambers Information

FOR MATTERS SCHEDULED BEFORE JUDGE KAPLAN:

PLEASE NOTE that, unless otherwise directed by the Court, all matters before Judge Kaplan are held telephonically only.
To access the Telephone Conference System, parties should dial 571-353-2301. When prompted for the “Number You Wish to Dial”, enter: 316729376#. When prompted for the “Security Pin,” enter 9999#.

Judge Tabs

About

About:

Michael J. Kaplan is a United States Bankruptcy Judge for the Western District of New York. At the time of his appointment to the bench in 1991 he was Clerk of the United States District Court for the Western District of New York. He served as Chief Judge from 1993 to 2000.

Judge Kaplan earned his B.A. degree from Columbia University in 1968 and his J.D. degree from Boston University School of Law in 1971.

He joined Lawyers Co-Operative Publishing Company in 1972, rising to senior editor before leaving in 1981. Also during this period he was active in the private practice of real estate law (1974 to 1981), and was an adjunct faculty member of the Rochester Institute of Technology and Monroe County Community College (1973 to 1981). He became Clerk of the United States Bankruptcy Court for the Western District of New York in 1981, serving in that position until 1988, when he was appointed Clerk of the United States District Court for the Western District of New York. He remained in the latter situation until his judicial appointment in 1991.

Judge Kaplan is a former member of the United States Judicial Conference Committee on the Administration of the Bankruptcy System, the Second Circuit Judicial Council Bankruptcy Committee, the Second Circuit Bankruptcy Appellate Panel Service, and the Board of Governors of the National Conference of Bankruptcy Judges. He is a current member of the National Conference of Bankruptcy Judges and the Erie County Bar Association.

Motion Practice

Motion Practice:

Practice Changes for Calendars in Buffalo, Batavia, Mayville, Niagara Falls and Olean (pdf)

All pleadings, notices and other papers shall be served and filed in accordance with the Federal Rules of Bankruptcy Procedure and the Local Rules for the Western District of New York.

Except as otherwise provided by Rule or ordered by the Court, Notices of Motion along with supporting affidavits and memoranda shall be served on the parties and filed electronically within CM/ECF at least ten (10) days prior to the hearing date of the motion. Discretionary responses to motions (those not required by order) shall be electronically filed and served upon the adverse party or parties as soon as possible.

An original Certificate of Service should be filed with the Notice of Motion and/or Motion documents. The Notice of Motion should be served on all appropriate parties.

Motions shall be filed in CM/ECF as follows: the Notice of Motion and Motion shall be filed as the main document; all other documents (exhibits, affidavits, certificates of service) shall be filed as attachments to the main document.

Chambers copies of all motion papers must be submitted to the court not more than two days following the filing of the motion in CM/ECF. This includes discretionary responses to motions.

Parties appearing before Hon. Michael J. Kaplan are strongly encouraged to file a proposed order with their motion and bring a copy of the order to court to expedite signing of orders that are granted.

Adjournment Policy

Motions may be adjourned only with consent of all appropriate parties. A letter confirming the adjournment must be filed with the Court before the original hearing date of motion.

Hearings noticed to all creditors and parties in interest require a Court appearance.

Obtaining a hearing date:

Due to his retirement status, Judge Kaplan has reassigned most of his cases to the other bankruptcy judges in the district. For those cases he has retained, you must consult with chambers for scheduling matters.

You may contact Chambers at (716) 362-3270 to either confirm a hearing date or schedule a hearing date.

Chapter 11

Chapter 11:

Filing Requirements

• The Bankruptcy Court for the Western District of New York is a mandatory e-filing court. All filings must be done in CM/ECF, unless a waiver has been granted. If you have received a waiver, please consult the Local Rules or contact the Bankruptcy Clerk’s office for information on filing in paper.

• Petition Page and Signature Page with /s/ slash or original signature of attorney and debtor(s). These pages must be filled in completely with all appropriate boxes checked.

Schedules A-J.

• Summary of Schedules and Statistical Summary of Certain Liabilities and Related Data (Form 6).

• List of Equity Security Holders.

• Exhibit "A" (if applicable)

• List of 20 Largest Unsecured Creditors.

• Rule 2016(b) (Attorney's Disclosure Statement) with /s/ slash or original signature of attorney.

• Statement of Intention: Regarding Secured Consumer Debts (only if debtor is an individual).

• Corporate Resolution (if applicable).

• Creditor must be uploaded as a .txt file at the time of filing the petition.

Chapter 13

Chapter 13:

Beginning December 1, 2017, use of the National Model Chapter 13 Plan will be required district-wide. The Buffalo Division and Rochester Division will issue a Case Management Order for each Chapter 13 case filed on or after that date, setting out requirements and procedures for use of the new Model Chapter 13 Plan. The Case Management Order may be modified in the future, if deemed necessary by the Court. Therefore, counsel are expected to carefully review the specific Case Management Order entered for each Chapter 13 case that they file.

Counsel are urged to become familiar with the National Model Chapter 13 Plan and each Division’s Case Management Order before the December 1st effective date.

Adversary Proceedings

Adversary Proceedings:

An Adversary Proceeding (AP) is a civil action in the bankruptcy case, and is commenced by the filing of a Complaint. PLEASE NOTE: The Bankruptcy Court for the Western District of New York requires all matters pertaining to a bankruptcy case, including Adversary Proceedings, to be filed by attorneys electronically through CM/ECF. If you are not an attorney, or fall under an exception to the e-filing requirement, please contact the Clerk’s Office for information on filing requirements.

To commence an Adversary Proceeding, it is necessary to file:

• A Complaint signed by the attorney, or by the plaintiff, if not represented by an attorney; and

• If not e-filed, an Adversary Proceeding Cover Sheet with the complete names and addresses of the Plaintiff and Defendant. All boxes should be completed accordingly. If applicable, please include the amount of damages demanded which must be consistent with the amount demanded in the Complaint. Be sure to use the current version of the Adversary Proceeding Cover Sheet.

• Please consult the Bankruptcy Court Fee Schedule to determine if a fee is required and if so, the amount of the filing fee.

Service

• The plaintiff must submit a proposed summons with the complaint.

• Federal Rule of Bankruptcy Procedure (FRBP) 7004 governs service of the Summons and Complaint.

Scheduling Matters in Adversary Proceedings

• For Adversary Proceeding Scheduling matters, please contact chambers at (716) 362-3270.

Pre-Trial Conference

• Upon receipt of an Answer, the Court will send a Notice of Pre-Trial Conference. The Pre-Trial Conference may be held either in person or by telephone.

Trial

Trial:

Exhibits:

At least 1/4 hour prior to the time set for commencement of trial, all exhibits shall be marked by counsel. Labels will be affixed to exhibit indicating whose exhibit it is and must state the date of the hearing.

Admission of exhibits may be considered before any testimony is taken.

If the Court reserves decision, exhibits may be taken by the Law Clerk at the conclusion of the trial. Exhibits will be retained until the time for appeal has expired, after which counsel must arrange to retrieve them..

If necessary to offer, explain, or examine an exhibit, counsel shall request leave to approach the bench or the witness.

Appeals

Appeals:

A bankruptcy appeal filed in this district is appealed to the U.S. District Court for the Western District of New York. The general procedure for filing an appeal is as follows, although parties are urged to consult the Bankruptcy Rules for specific requirements:

• NOTE: The Bankruptcy Court for the WDNY is a mandatory e-filing court. To properly electronically file an appeal in CM/ECF, you must docket under BANKRUPTCY > APPEAL > NOTICE OF APPEAL. If you have a waiver from e-filing, or are pro se party without an attorney, please refer to the Administrative Procedures for the requirements for filing an appeal in paper, or contact the Bankruptcy Clerk’s office.

• An appeal from a final judgment, order or decree of a Bankruptcy Judge is taken by the filing of a Notice of Appeal with the Bankruptcy Clerk. An appeal of an interlocutory judgment, order or decree is taken by the filing of a Notice of Appeal and motion for leave to appeal. See., Bankruptcy Rule 8001(a) and (b). The Notice of Appeal must be filed within the time allowed by the Bankruptcy Rules.

• The Notice of Appeal must conform to the Official Form and must contain the name(s) of all parties to the judgment, order, or decree appealed from, and the names, addresses, and telephone numbers of their respective attorneys, and be accompanied by a civil cover sheet (Form JS-44), and the statutory filing fee. See, Bankruptcy Court Miscellaneous Fee Schedule , 28 U.S.C. §1930.

• If an adversary proceeding is the subject of an appeal, the exact caption, the bankruptcy case number, and the adversary proceeding number must be noted on the Notice of Appeal.

Direct Appeal:

In 2005, Congress added new provisions allowing direct appeals to the circuit court, bypassing the normal route through the district court. 28 U.S.C. § 158(d)(2). A party may take a direct appeal:

• There “there is no controlling decision of the court of appeals for the circuit or of the Supreme Court of the United States, or involves a matter of public importance” 28 U.S.C. 158(d)(2)(A)(i);

• If the case “involves a question of law requiring resolution of conflicting decisions” 28 U.S.C. 158(d)(2)(A)(ii); or

• “An immediate appeal…may materially advance the progress of the case or proceeding…” 28 U.S.C. 158(d)(2)(A)(iii).

See, Bankruptcy Rule 8001(f) for the requirements for a direct appeal.

A direct appeal must be electronically filed in CM/ECF, unless the filer has a waiver or is proceeding pro se. To properly file a direct appeal, docket under BANKRUPTCY > APPEAL > NOTICE OF APPEAL.

Amendments

Amendments:

The procedure for filing Amendments is as follows:

• Amendments must be e-filed in CM/ECF. If you have questions as to how to file an amendment electronically, please contact the court.

• Local Rule 1009-1 and Standing Order dated June 9, 1999 require that an Amendment/Schedule Cover Sheet be attached to amended schedules, lists, etc. The current version of the Amendment/Schedule Cover Sheet must be used. This applies to: (1) Amendments to information previously filed; (2) Adding information not previously filed; or (3) Schedules/Lists required for conversions (Rule 1019), i.e., post-petition debts.

• Each item being amended must be checked in the appropriate section on the Amendment/Schedule Cover Sheet.

• The attorney (or pro se debtor) and debtor(s) must affix an /s/ slash or original signature to the unsworn declaration.

• Fed.R.Bankr.P. 1009(a) requires the debtor to give notice of the amendment to the trustee and any affected party. An /s/ slash or original signature of the attorney (or pro se debtor) verifying that the service requirement has been accomplished must be affixed on the Amendment/Schedule Cover Sheet in the space provided or on a separate Certificate of Service accompanying the amendment.

• If you are adding creditors with your amendment, upload only those creditors being added. An Amendment Fee will be imposed in accordance with the Bankruptcy Fee Schedule and Bankruptcy Fee Compendium.

• Amendments may be filed at any time prior to the closing of a case. If a case has been closed, an amendment may be filed only after the case has been re-opened.

• PLEASE NOTE: Reopening a case for the purpose of adding a creditor may not be allowed. Please refer to Judge Ninfo’s decision, In Re: Tucker, 143 B.R. 330 (Bankr. WDNY 1992.)

• Deletion of a creditor MUST be done by motion.

United States Bankruptcy Court

Western District of New York

Honorable Carl L. Bucki, Chief Judge
Lisa Bertino Beaser, Clerk of Court

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Judge Michael J. Kaplan (Retired)

Staff Information

Judge Tabs

Exhibits: