PROCEDURES FOR CASES ASSIGNED TO JUDGE HESTON

[Last updated 12/14/2023 ]

Tacoma Motion Calendars: Non-evidentiary hearings set on the Tacoma calendar will be held in person. Requests for telephonic appearances should be submitted according to the telephone attendance procedures below.

Vancouver Motion Calendars: Until further notice, all Vancouver calendars will be held via ZoomGov beginning with the November 8, 2022 calendar. IFP and Reaffirmation Agreement hearings will remain telephonic. The assigned Judge will set the format for evidentiary hearings and trials (e.g., by ZoomGov or in person) by order on a case-by-case basis.

If parties do not have access to the appropriate technology to appear via video, please contact the assigned Judge’s Courtroom Deputy: Judge Heston’s Courtroom Deputy at alice_timken@wawb.uscourts.gov 

Evidentiary Hearings, Trials, and Specially Set Motion Hearings:  Judge Heston will set the format for evidentiary hearings, specially set non-evidentiary hearings, and trials (e.g., by Zoom or in person) by order on a case-by-case basis during the pretrial conference.

Telephonic Attendance: Attendance at hearings or other conferences may be by telephone if approved by the Judge at least 48 hours prior to 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 name, phone number, email address, and the reason for the telephonic appearance. 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 and the standards for approval are according to pre-covid guidelines. Masks are not required, but are available upon request. The court has retained its enhanced ventilation system installed pre-covid and has individual air purifiers in each courtroom. Additional safety precautions may be requested at least 48 hours prior to the hearing/conference via email to Judge Heston’s Courtroom Deputy at alice_timken@wawb.uscourts.gov. No recording of the hearing is permitted, but parties may download a recording directly from CM/ECF: order-audio-recording-hearing. Parties may also contact the Clerk’s Office after the hearing to request audio or an official transcript of the hearing.

Pretrial Conferences: 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 11 U.S.C. § 105 in some, but not all, newly filed chapter 11 cases. If a § 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 contested motions, evidentiary hearings, and trials. Motions must be confirmed according to the timeframes found in Local Rules W.D. Wash. Bankr. 9013-1(d)(8), by submitting a "Notice of Intent to Argue" through ECF in the E-Confirmation Process. The E-Confirmation Process is set forth on the court 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: Alice Timken, (253) 882-3950.

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 before the hearing date.

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 before 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.

         Procedure for Requesting a Continuance of Confirmation Hearing for Subchapter V Cases. Subchapter V confirmation hearings may not be continued or stricken without court approval. A party requesting a continuance of the confirmation hearing must file a motion and set the motion for a hearing in accordance with Local Rules W.D. Wash. Bankr. 9013-1.

Fee Applications and Final Reports: Movants who have filed fee applications and final reports to which no party has objected need not appear at the scheduled hearing unless instructed to do so 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), 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. A hearing may not be set on the underlying motion unless an order setting the hearing is first signed by Judge [Lynch/Heston], at which time the Clerk's Office will set the hearing on the judge's calendar. 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 movant's 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.

Counsel are reminded if they wish the underlying motion to be heard for argument, it must be timely confirmed in accordance with LBR 9013-1(d)(8) and by using the E-Docket Confirmation Process. If a matter is not timely confirmed, even though an Order Shortening Time has been signed, the matter may not be heard.

Uncontested Matters: Orders for uncontested matters should be submitted via ECF with a declaration of no objection. 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 before contested matters but prefers orders to be submitted electronically.

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

Chambers’ Copies of Filed Papers: For dispositive motions: parties moving for or opposing dismissal or summary judgment shall provide 1 (one) chambers' copy of all papers contemporaneously with each filing. For all other motions: if an opposition or response is filed to any other motion, any party whose filings (including the motion, brief, memorandum, attachments and exhibits) exceed fifty (50) pages in length shall provide 1 (one) chambers' copy of all papers within 1 (one) court day after the filing of the opposition or response. Chambers' copies shall be clearly indexed in three-ringed binders and delivered to chambers or to the Clerk's Office.

Contacting Chambers: Judge Heston 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 13 Attorney Applications for Fees in Excess of the Presumptive Fee: The presumptive or “no-look” fee is $5,000 for all chapter 13 cases filed after December 15, 2022. See General Order No. 2022-3. An application for pre-confirmation attorneys’ fees in excess of the presumptive fee must be filed not more than 21 days after entry of the confirmation order. Local Rules W.D. Wash. Bankr. 2016-1(e)(2). An attorney who has taken the presumptive fee and seeks approval of fees for pre- or post-confirmation services in an amount above the presumptive amount shall (1) file an itemized time record for all services provided in connection with the case in order to establish the attorney has earned the presumptive fee and the additional amount, and (2) file an application and proposed order seeking approval for only the amount above the presumptive fee. For example, if an attorney seeks compensation of $5,500 after the Court approved a $5,000 presumptive fee in the confirmation order, only $500 should be requested in the application and proposed order.

Chapter 11 Plan Confirmation Hearings and Orders: Evidence sufficient to permit Judge Heston to make the findings necessary to confirm the plan under 11 U.S.C. § 1129 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 where 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 7 days of mailing. Parties must attach a copy of the master mailing list used for noticing to the proof of service filed with the court. See Local Rules W.D. Wash. Bankr. 2002-1(e).

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 comply 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 under 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 before 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 must be filed. See Local Rules W.D. Wash. Bankr. 7055-1.