Filing And Responding To Motions
A trial in a bankruptcy case is rare, but filing and responding to motions is much more common. A debtor under chapter 7 may only have to file the bankruptcy petition and attend the creditors meeting and not usually much else, but a chapter 13 petitioner may want to file motions or may have to respond to motions for any number of reasons, such as seeking to dismiss his own case, dealing with creditors objections, or objections to the confirmation of his repayment plan, or to avoid liens on secured property.
A motion is simply a request by the movant — the party requesting the motion — to the court to act or decide some point in the movant's case. There are 2 types of motions:
- ex parte motions, when the judge listens only to the moving party;
- noticed motions, when notice is sent to an opposing party, called the respondent, so that they can oppose a motion if they wish.
Generally ex parte motions are filed when no other party is affected by the new request, or the debtor clearly has a right to the requested action, such as seeking a dismissal of his case, which a chapter 13 debtor has an absolute right to do. An ex parte motion may also be filed because the request is urgent, and there is not enough time to notify the other party, in which case, the opposing party must be notified shortly thereafter.
There are 2 types of noticed motions: a motion that contains the date and time of the hearing, and one that requires the other party to schedule a hearing if it wants to contest the motion.
To schedule a hearing for a noticed motion in bankruptcy, Form 20A is generally used and must provide the opposing party at least 25 days notice of the hearing.
The Basic Motion Process
To negate the necessity of a court hearing or ruling, the court may require that the movant and respondent meet and confer with each other to try to reach an agreement without the intervention of the court. If not, then you can try to resolve any conflicts with creditors on your own initiative by contacting them directly, possibly eliminating the need for a motion and its expense.
However, if a motion is deemed necessary, then the moving party must serve a written document called a notice of motion on the opposing party, using a 3rd party for delivery of the notice. The moving party must also file a copy with the court. If the judge agrees, the parties may even conduct a hearing by phone.
Notice of Motion
A motion is a written document that asks what the movant wants the court to do. Although the local rules determine what needs to be in the notice of motion, these elements are most common:
- A statement of legal issue that the moving party wants the judge to address and what the movant wants.
- The name and address of the movant or his attorney.
- The court case number and the address of the court.
- The name of the party to which the motion applies.
- A declaration is a statement of facts, often presented in a separate affidavit, written by someone, called the affiant, with firsthand knowledge that must be signed under penalty of perjury. Other documents can also be added as exhibits.
- A memorandum of points and authorities of the applicable law is used to explain why the motion should be granted, based on statutes, court rules, or cases that constitute the legal justification or authority for the rulings that the moving party seeks.
- Proof of service that shows that someone other than the movant mailed the notice to the other side.
- The date and time of the hearing unless the affected party is required to set up a date and time.
The motion will also inform the other party what they must do to oppose the request. If the affected party does not respond within 25 days, then the movant must file a motion asking the court to grant a default. However, the respondent may also file an an Opposition to Motion, arguing why the moving party's motion should not be granted.
If the affected party wants to oppose the motion, it must give at least 5 days notice before the scheduled hearing. At the hearing, the judge will consider both arguments, then decide either right away or take the matter under consideration. The judge will probably file a written memorandum explaining his decision, and ask the party that won the motion to prepare a formal order.
Most motions in a chapter 13 case are filed by either creditors or the trustee. Some of the common motions that creditors may file include:
- motion for adequate protection of secured property that may require more money, additional liens, or proof of insurance;
- the creditor wants to repossess secured property in which you have no equity;
- the creditor is seeking a relief from the automatic stay if there's a delay in the confirmation hearing or to proceed with a foreclosure, for instance.
A creditor or trustee may file a motion if:
- you are ineligibility for chapter 13, perhaps because you exceed the debt limits of chapter 13 or your income is insufficient for a confirmable repayment plan;
- your bankruptcy petition was filed in bad faith, which most likely will arise if you filed for bankruptcy previously one or more times within a short period of time;
- your repayment plan is not considered feasible, which is usually because the movant believes that you will not be able to make the plan payments.
The trustee may also file motions to dismiss the case if the debtor fails to cooperate with the trustee or the bankruptcy court.
In bankruptcy cases, the notice of a motion may be invalid unless it is sent to all creditors, or at least to affected creditors.
Court Hearing For A Motion
The judge may decide the motion without a hearing if the other party doesn't oppose the motion or if the judge feels it does not require a hearing. Often, the judge will rule on the motion in writing, without a court appearance.
Sometimes a judge will issue a tentative ruling, based on the written information that the court has received from both parties. The tentative ruling is either posted online or is available by phone. In those cases where a tentative ruling has been issued, the court may not hold a hearing unless either party intends to contest the ruling.
Motion hearings require only a short court appearance, usually less than 30 minutes. The court usually schedules certain days for hearing motions, and ex parte and noticed motions will often be scheduled on different days. Sometimes motions will be heard by different judges, who are sometimes called motion judges.
A motion hearing generally has no jury, and witnesses are rarely present except when there may be disputes with the declaration.
At the hearing, the clerk will call out the name of the case. The involved parties then go to the council table to argue the motion. Generally the movant argues first, then the respondent. Arguments are based on the facts and the applicable law, with the objective of showing why the judge should grant or not grant the motion.
The judge will then issue a ruling granting, modifying, or denying the motion. The judge may rule directly from the bench or give notice of the ruling by mail.
If the court issues an oral ruling, either the court clerk will write the order or the court may expect the winning party to write the order. In the latter case, it would behoove the winning party to take notes so that they can write the order for the judge to sign. The winning party must also notify the other parties of the court's ruling if any parties in interest were not present.
Pro Se Tips
- The best way to prepare for a motion hearing is to actually attend one before your own motion, so that you can see how it is actually conducted, and what the judge seems to expect.
- At the hearing, you should present your strongest arguments briefly, to amplify and clarify, and not simply recite what is already in the motion because the judge will already know its content.
- If you win your motion and the judge asks you to draft an order, ask who needs to be notified.