Mary Sirianni, Career Law ClerkPhone: 585.613.4250
Tina Folwell, Courtroom Deputy Phone: 585.613.4214
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.
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.
The Local Rules are out-of-date and, in many instances, not in keeping with the Federal Rules; the Local Rules are not utilized in cases before Judge Warren.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 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.
The procedure for filing Amendments is as follows:
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.
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:
Service
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
Trial of Adversary Proceeding
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 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.
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:
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:
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.