PROCEDURES FOR CASES ASSIGNED TO JUDGE HESTON

Calendar Settings: Judge Heston’s available motions calendar dates are posted on the court’s website. Reaffirmation and fee waiver hearings are set by the court and heard telephonically.

Please contact chambers to request that a matter be special set or if it appears the matter requires an evidentiary hearing.  Local Rules W.D. Wash. Bankr. 9013-1(b)(3).

Pretrial Conferences: Judge Heston will not automatically conduct a pretrial conference in adversary proceedings. If an answer is filed, Judge Heston will enter a Notice of Trial and Order Setting Deadlines, which may schedule a pretrial conference. A party may also request a pretrial conference by letter electronically filed with the court.

Section 105 Conferences: Judge Heston will conduct a scheduling conference under Section 105 of the Bankruptcy Code in some, but not all, newly filed Chapter 11 cases. If a Section 105 conference is scheduled, counsel for the debtor-in-possession will receive an order via ECF.

Confirming Motions and Trials: Judge Heston requires confirmation of all motions and trials. Motions are to be confirmed in accordance with the timeframes set forth in the chart in Local Rules W.D. Wash. Bankr. 9013-1(d)(8), by submitting a "Notice to Court of Intent to Argue" through ECF in the E-Confirmation Process. The E-Confirmation Process is set forth on the court's website under the Hearings & Locations tab>Confirm a Hearing. Trials should also be confirmed using the E-Confirmation Process. Hearings and trials not confirmed may be stricken by the court. Local Rules W.D. Wash. Bankr. 9013-1(b)(5). Pro se filers should contact Judge Heston's courtroom deputy to confirm hearings:  Sammii Bergeson (Courtroom Deputy) (253) 882-3951.

Continuing or Striking Motions, Evidentiary Hearings and Trials:

      --Motions may not be continued or stricken from the calendar without the agreement of any party who has filed an objection or other response to the motion. By uploading an E-docket request for continuance or notice of motion being stricken or withdrawn, counsel is representing that the agreement of all interested parties has been obtained. If the status of a motion changes after it has been confirmed, the party who confirmed the matter is responsible for updating the court using the E-Confirmation Process as soon as counsel is aware of the change in status. If a motion is continued, it must be reconfirmed for the continued hearing date using the E-Confirmation Process according to Local Rules W.D. Wash. Bankr. 9013-1(d)(8). Notwithstanding the foregoing, a chapter 13 matter may not be continued for more than four (4) months from the original date of the hearing without the consent of Judge Heston, whose consent may be requested by motion in advance of the hearing.

      --Evidentiary hearings and trials may not be continued or stricken without court approval. A request to continue or strike a trial date must be made by motion and noted for hearing prior to the trial date. When a matter set for evidentiary hearing or trial is resolved prior to the court date, counsel should notify chambers through the E-Confirmation Process as soon as they are aware that an agreement has been reached.

Fee Applications and Final Reports: Applicants who have filed fee applications to which no party has objected need not appear at the scheduled hearing unless instructed to do so by chambers. No appearance is required for a Final Report hearing where no objections have been filed unless the trustee is otherwise advised by chambers.

Order Upload: Orders ready for the Judge’s signature should be submitted in ECF via Bankruptcy > Order Upload, or Adversary> Order Upload, respectively.

Shortening Time: Under Local Rule W.D. Wash. Bankr. 9013-1(d)(3), 9013-1(d)(3), motions to shorten time or limit notice are disfavored. A motion to shorten time must be made by separate motion and may be filed ex parte. Counsel should simultaneously file (1) the motion to shorten time, (2) a received unsigned order shortening time (using the Order Upload docket event), and (3) the underlying substantive motion. The motion to shorten time must include a certification by the movant’s attorney in writing stating the efforts made to give notice to opposing counsel of the movants intent to bring a motion on shortened time and the reasons why further notice should not be required. The received unsigned order shortening time must include (a) the proposed date and time of the hearing on the underlying motion, (b) the proposed response date, and (c) a deadline for providing notice of the underlying substantive motion to parties in interest, which shall be no later than 24 hours after entry of the order shortening time. However, a hearing on a motion to shorten time or to limit notice may be scheduled at the Court’s discretion. Additionally, the Court may change the dates and times set forth in the order shortening time. Notice of a hearing on shortened time should be given to all parties in interest within the deadline set forth in the signed order shortening time that sets the hearing on the underlying motion and response date.
 

Uncontested Matters: Orders for uncontested matters should be submitted via ECF with a certificate of no objections (see Local Rules W.D. Wash. Bankr. 9013-1(f)(2)). Unopposed matters may also be presented at the date and time of the hearing. Judge Heston calls agreed and unopposed matters initially on her motions calendars prior to contested matters.

Formatting and Linking of Motion Papers/Exhibits: Format and linking requirements are set out in Local Rules W.D. Wash. Bankr. 9004-1; respecting exihibits, see Local Rules W.D. Wash. Bankr. 9004-1(d).

Chambers’ Copies of Filed Papers: Pursuant to Local Rules W.D. Wash. Bankr. 9013-1(d)(4), you are no longer required to provide chambers with copies of pleadings that are filed electronically, except when the pleading and supporting documents exceed 25 pages in length. In the event a chambers copy is required, one copy is sufficient.

Telephonic Attendance: Attendance at hearings or other conferences may be by telephone if approved by the Judge in advance of the hearing/conference. Telephonic appearance must be requested via letter in ECF no later than 48 hours prior to the scheduled hearing. If the party does not have ECF filing capabilities, the letter may be sent to the clerk's office to be docketed. The letter must include the party's name, phone number and email address. If telephonic appearance is approved, the requesting party will be contacted by the Courtroom Deputy with the information for calling in. The Judge will not permit any telephonic appearance that has not been approved in advance of the hearing.

Contacting Chambers: Judge Heston's chambers can be reached at 253-882-3950. Please respect the prohibition against ex parte communication (Fed. R. Bankr. P. 9003(a)), and avoid communications with law clerks concerning matters affecting a particular case other than procedural or scheduling matters. Emails should not be used to communicate with chambers regarding a case. Communication with a law clerk is deemed to be communication with the Judge.

Chapter 11 Plan Confirmation Hearings and Orders: Evidence sufficient to permit Judge Heston to make the findings necessary to confirm the plan under Section 1129 of the Bankruptcy Code should be submitted with the pre-confirmation report required by Local Rules W.D. Wash. Bankr. 3020-1(a). Absent a showing of compelling circumstances, the confirmation order should substantially comply with Fed. R. Bankr. P. 3020(c)(1) and the Official Form referred to in that rule.

Subchapter V Case Procedures: Upon the filing of a chapter 11 case in which the Debtor elects to be a debtor under subchapter V, the Court will issue an order setting the status conference required by  11 U.S.C. § 1188(a). The Court will provide notice of this order to the Debtor, Debtor’s attorney, and the trustee.

The status conference will be scheduled for a date between 45 and 60 days after entry of the order for relief and will be held telephonically. The Debtor, Debtor’s attorney, and the trustee will be required to attend the status conference; creditors and other parties in interest may voluntarily attend as well. The order setting the status conference will require the Debtor to prepare and serve the report required by 11 U.S.C. § 1188(c) no later than 14 days before the date set for the status conference. The order setting the status conference will also set the deadline for filing proofs of claim, and require debtors to serve the notice of the Claim Deadline on all creditors, equity security holders and other parties in interest by a date specified in the order setting the status conference.

11 U.S.C. § 1189(b) requires the debtor in a subchapter V case to file a plan no later than 90 days after the order for relief. Upon the filing of a plan in a subchapter V case, the Court will issue an order setting the confirmation hearing. That order will also set the deadlines for voting to accept or reject the plan, for filing objections to confirmation of the plan, and for secured creditors to make an election under 11 U.S.C. § 1111(b)(2). The order will require the Debtor to mail a copy thereof to all creditors, equity security holders, and other parties in interest.

Notice/Service: If notice must be given to all parties in interest, notice is presumed adequate if mailed to all entities on the master mailing list, provided the list is current to within 21 days of mailing as evidenced by (1) the notation on the list showing the date it was extracted from ECF or PACER, or (2) counsel's verification in the affidavit of service. See Local Rules W.D. Wash. Bankr. 2002-1(e); Fed. R. Bankr. P. 2002(a)(5).

Local Rules W.D. Wash. Bankr. 9013-1(d)(2)(B) requires that proof of any conventional (non-ECF) service of the notice and the motion be filed by the response date. 

Service of a motion in a contested matter must be in compliance with Fed. R. Bankr. P. 7004, unless otherwise governed by the Federal Rules of Bankruptcy Procedure. Fed. R. Bankr. P. 9014(b). This includes service of a motion to avoid a lien pursuant to 11 U.S.C. § 522(f), a motion to sell free and clear under 11 U.S.C. § 363(f), and a motion to strip a wholly unsecured mortgage lien and a request to value collateral in a Chapter 13 case.

When service in compliance with Fed. R. Bankr. P. 7004 is required, please pay attention to the rules for service upon specific parties.  For instance, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association must be to the attention of a specifically identified officer, managing or general agent, or agent authorized to receive service.  Fed. R. Bankr. P. 7004(b)(3). Service on an insured depository institution shall be made by certified mail addressed to an officer of the institution.

Order of Default/Default Judgments: An order of default must be entered prior to entry of a default judgment and they must be separate documents.  Fed. R. Bankr. P. 7058. Proof of proper service in compliance with Fed. R. Bankr. P. 7004 is required. A motion for default judgment must be supported by evidence to establish the truth of the allegations in the complaint, i.e. declaration in support or the complaint must be verified. A default judgment may not be entered against an individual without an affidavit of non-military service in compliance with the Servicemembers Civil Relief Act. 11 U.S.C. § 3931.

Chapter 13 Applications for Post-confirmation Fees: If counsel was awarded the presumptive fee without filing a written application pursuant to Local Rules W.D. Wash. Bankr. 2016-1(e)(1), and later seeks approval of post-confirmation fees, please indicate in either the application or time records filed in support the total amount of fees earned pre-confirmation versus the amount of post-confirmation fees.