Judge Warren

Staff Information

Mary Sirianni, Career Law Clerk
Phone: 585.613.4250

Tina Folwell, Courtroom Deputy
Phone: 585.613.4214

Judge Tabs

Adjournments

Adjournment Policy:

Adjournment Policy - revised December 2016

Late-requested and serial adjournments place a tremendous burden on chambers and increase the cost of litigation. Counsel are expected to adhere to this Court’s Adjournment Policy.

Requests for adjournment—made more than 72 hours before a scheduled hearing—will only be granted if the request is made by letter, satisfactorily explaining the reason for the requested adjournment, confirming that all affected parties consent, and filed in ECF more than 72 hours before the scheduled hearing.

Requests for adjournment—made less than 72 hours before a scheduled hearing—will not be granted absent extraordinary circumstances. Counsel believing that extraordinary circumstances exist must contact chambers [585-613-4250]. Absent sufficiently compelling circumstances, counsel for the party tardily seeking the adjournment will be required to appear at the scheduled hearing—and may be subject to the imposition of costs.

Chambers Copies

Chambers Copies:

Chambers copies of motion papers ARE NOT REQUIRED AND WILL NOT BE ACCEPTED. All motions must include a proposed order as an exhibit to the motion.

Local Rules

Local Rules:

The Local Rules are out-of-date and, in many instances, not in keeping with the Federal Rules; the Local Rules are not utilized in cases before Judge Warren.

Chapter 11

Chapter 11:

Chapter 11 Practice:

First Day Motions and Orders – First Day Orders are orders a Debtor seeks to have entered by the Court shortly after the filing of a Chapter 11 petition. Generally, the purpose of First Day Orders is to address administrative matters, to facilitate the transition to debtor-in-possession status, and to ensure that a Debtor’s business and operations are stabilized. The request for a First Day Order should be made by a First Day Motion, and a copy of the proposed First Day Order should be filed as an exhibit to the First Day Motion. First Day Motions must be filed with the petition, or within 2 days of filing the petition, and must be reviewed with the United States Trustee in advance of filing. The relief that may be granted by First Day Orders will depend upon the facts and circumstances of each case, the notice given, and other related factors, and will take into account the needs of the Debtor and the rights of other parties in interest.
While the Court recognizes the necessity and appropriateness of entertaining First Day Motions, only those motions seeking and appropriately requiring emergency relief will be heard on an expedited basis. Other motions may still be served and filed shortly after the filing of a petition, but they must be scheduled for a hearing in accordance with the Bankruptcy Code and the Bankruptcy Rules.
The Court makes extensive use of case management orders in Chapter 11 cases, to highlight deadlines and other procedural requirements. Counsel are expected to take these orders seriously.
The Court will enter an Order requiring the debtor-in-possession to provide all noticing in cases with more than 100 creditors.
Upon the filing of the Disclosure Statement and/or Plan, the Court will enter an Order scheduling the hearing on approval of the disclosure statement/and or confirmation of the plan.
Once a confirmation hearing date is set, the Court will issue a case management order requiring the Plan proponent to file a Chapter 11 Confirmation Checklist
3 business days prior to the hearing on confirmation.
An individual Chapter 11 debtor-in-possession, or principal or partner of a corporate or partnership debtor-in-possession must appear before the Court on the return date for the hearings on disclosure statements (if there have been any objections filed which have not been resolved before the scheduled hearing), confirmation hearings and all motions to convert or dismiss, if the motion is opposed. This requirement applies equally to any and all subsequent adjournments of these matters if granted by the Court.

Chapter 13

Chapter 13:

Chapter 13 Model Plan

Beginning December 1, 2017, use of the National Model Chapter 13 Plan, Official Form 113, will be required district-wide. The 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 the Rochester Division’s Case Management Order before the December 1st effective date.

Lift Stay Motions in Chapter 13 Cases

Counsel to debtors are cautioned not to rely on In re Cox, 251 B.R. 446 (Bankr. W.D.N.Y. 2000) (Ninfo, J) in responding to a lift stay motion in a Chapter 13 case. This Court has repeatedly refused to follow Cox, as the holding is not supported by the Code, Bankruptcy Rules, or appellate court precedent. Counsel would do well to focus on 11 U.S.C. § 362(g)(2) in attempting to oppose a lift stay motion.

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.
Amendment/Schedule Cover Sheet (Rev. 12/2020) must 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.
Rule 1009(a) FRBP 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.
Rochester Division—PLEASE NOTE: Motions to reopen a case under 11 U.S.C. § 350(b), implemented by Rule 5010 FRBP, must be made on notice to all affected parties-in-interest and the United States Trustee. See In re Gill, 529 B.R. 31 (Bankr. W.D.N.Y. 2015). Reopening a case for the purpose of adding a creditor may not be allowed. In re Tucker, 143 B.R. 330 (Bankr. WDNY 1992.)
Deletion of a creditor MUST be done by motion.

Motion Practice

Motion Practice:

Scheduling a Hearing Date/Time

See MOTION SCHEDULING - JUDGE WARREN (rev. 12/22/2020)

Generally, it is not necessary for the parties to contact the Court in order to schedule a routine motion. The parties may select a hearing date and time from the “Calendar” tab on Court’s website. Counsel should request a discrete date/time for matters that may require more time to be heard, by calling the Courtroom Deputy [585- 613-4214].

Cover Sheets and Proposed Order

Any motion seeking relief under sections 362(d), 506(a), 522(f), 554, 722 or 1229/1329 must include a cover sheet. All motions must include a proposed order as an exhibit. Motions submitted without the required cover sheet or proposed order will not be set for a hearing.

Negative Notice Procedures

See NEGATIVE NOTICE PROCEDURES

For cases assigned to Judge Warren, many motions are handled under the Court’s Negative Notice procedures. These motions are listed in the “NEGATIVE NOTICE PROCEDURES” link above.

Service and Filing

All pleadings, notices and other papers must be served and filed in accordance with the Federal Rules of Bankruptcy Procedure (FRBP) (The Local Rules are out-of-date and, in many instances, not in keeping with the Federal Rules; the Local Rules are not utilized in cases before Judge Warren). A Certificate of Service must be filed. Adequacy of service under the FRBP is the responsibility of the party making service. The Court does not rule on the adequacy of service unless and until the issue is litigated by the parties.

Except as otherwise provided by Rule or ordered by the Court, Notices of Motion along with supporting affidavits and memoranda of law must be served and filed electronically at least ten (10) days prior to the hearing date. Responses to motions must be electronically filed and served upon the adverse party not less than 72 hours prior to the hearing date and time. (See Administrative Order of December 2020, by which the Court "ordered otherwise" for purposes of Rule 9014(a). )

Motions, submissions in further support of motions, and responses made by letter submission (by parties represented by counsel) are unacceptable and will not be considered. (See In re Kearns, 616 B.R. 458, 465 n.6 (Bankr. W.D.N.Y. 2020) (Warren, BJ); In re Encore Prop. Mgmt., 585 B.R. at 27 n.3).

Chambers copies of all motion papers and responses ARE NOT REQUIRED.

Default Judgment

The Court will grant default judgment against any party (including the debtor), under Rule 55(b) FRCP, only on motion served and filed in keeping with this Court’s Negative Notice Procedures, with notice to the defendant(s) and their counsel (if known). Proof of service of the Motion For Default Judgment must be attached to the Motion, together with a copy of the Complaint and all evidentiary material in support of the Motion. If the Complaint is not verified, an affidavit under Rule 55(b)(2)(C) FRCP must be included, establishing the truth of the allegations in the Complaint by including evidence upon which the judgment is sought.

Evidentiary Support For All Motions

Evidentiary support, in admissible form, of all factual assertions relied on in support or in opposition to any motion must be served and filed with the moving or opposing papers. Recitals in motions or opposition papers, attorneys’ affirmation and assertions of material facts “on information and belief” are generally insufficient to establish factual matters.

Adjournment Policy - revised December 2016

Late-requested and serial adjournments place a tremendous burden on chambers and increase the cost of litigation. Counsel are expected to adhere to this Court’s Adjournment Policy.

Requests for adjournment—made more than 72 hours before a scheduled hearing—will only be granted if the request is made by letter, satisfactorily explaining the reason for the requested adjournment, confirming that all affected parties consent, and filed in ECF more than 72 hours before the scheduled hearing.

Requests for adjournment—made less than 72 hours before a scheduled hearing—will not be granted absent extraordinary circumstances. Counsel believing that extraordinary circumstances exist must contact chambers [585-613-4250]. Absent sufficiently compelling circumstances, counsel for the party tardily seeking the adjournment will be required to appear at the scheduled hearing—and may be subject to the imposition of costs.

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—Rochester Division—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, 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 amounts 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.

Default Judgment

The Court will grant default judgment against any party (including the debtor), under Rule 55(b) FRCP, **only on motion served and filed in keeping with this Court’s Negative Notice Procedures, with notice to the defendant(s) and their counsel (if known). Proof of service of the Motion For Default Judgment must be attached to the Motion, together with a copy of the Complaint and all evidentiary material in support of the Motion. If the Complaint is not verified, an affidavit under Rule 55(b)(2)(C) FRCP must be included, establishing the truth of the allegations in the Complaint by including evidence upon which the judgment is sought.

Rule 16 Conference

Immediately upon the filing of an Answer, the Court will issue a Rule 16 Order, scheduling the Rule 16 conference. Parties are expected to carefully read the Rule 16 Order and strictly comply with all directives. (A sample Rule 16 Order and a writable PDF Discovery Plan is available for review.)
Date conflict
- If an attorney or party has a conflict with the scheduled Rule 16 conference date, follow the instructions in the Order to request that the Court consider issuing a revised date or time.

Trial of Adversary Proceeding

A “Trial Scheduling Order” will be issued following the Rule 16 Conference. The deadlines set out in that Order are not subject to adjournment, except in the manner specified in the Order.
“Pre-Trial Statements” are required to be filed at least 14 days before trial. The required format and necessary information will be spelled-out in an attachment included with the Trial Scheduling Order.
After trial, the Court will issue an “Order Directing Parties to File Post-Trial Briefs, With Proposed Findings of Fact and Conclusions of Law.” Post-Trial Briefs are required to be served and filed by a date initially set by the Court in the Trial Scheduling Order—and confirmed by the Court immediately at the close of proof in the Order Directing Parties to File Post-Trial Briefs. Generally, Post-Trial Briefs will be due approximately 30 days after the conclusion of trial.

Trial

Trial:

Trial

The Court will issue a final Pretrial Order, scheduling a date certain for trial and date(s) for filing witness lists, copies of exhibits, pre-marked and bound three-ring binders, motions in limine, and, if necessary, a final Pretrial Conference several days before trial.

Exhibits

Exhibits are to be reviewed and marked by counsel and the Courtroom Deputy beginning at 8:30 a.m. the day of the trial. Trials typically begin at 9:00 a.m.

The Court will keep the original exhibits after trial until the appeal time expires, after which time exhibits are to be retrieved by the parties.

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 a 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:

Where “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.

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 Warren

Staff Information

Judge Tabs

Chapter 11 Practice:

Trial

Exhibits

Direct Appeal