LBR 2085-1. CHAPTER 15 CASES

LBR 2085-1. CHAPTER 15 CASES

(a) Chapter 15 Motions – Form and Service.
(1) A motion under chapter 15 must comply with FRBP 9013.
(2) The motion must be served on the 20 largest unsecured creditors located in the
United States, the administrator appointed in any foreign proceeding with respect
to the debtor or a member of the same corporate group as the debtor, the 20 largest
unsecured creditors in each such foreign proceeding, all United States secured
creditors, all secured creditors in foreign countries who are known to the movant,
persons requesting special notice under LBR 2002-1(a), and the United States
trustee. Furthermore, every such motion other than one which may be considered
ex parte must be served by the moving party on the trustee, if the motion arises in
a case filed under chapter 7, 9, 11, 12, or 13.
(b) Authorization to Act in a Foreign Country.
(1) Every trustee or other entity (including an examiner) appointed in a bankruptcy
case pending in the United States (except for a case under chapter 15) must obtain
authority under 11 U.S.C. § 1505 before acting in a foreign country.
(2) Authorization to act in a foreign country pursuant to 11 U.S.C. § 1505 must be
made on motion of the trustee or other entity seeking such authorization. The
motion must be made in compliance with FRBP 9013, and must be served as
provided in subsection (a) of this rule.
(3) An order pursuant to this provision may be granted after notice and a hearing.
(c) Requirement to Obtain Order for Recognition. Any foreign representative seeking to appear in any United States court or the court of any State in the United States must first obtain an order for recognition under 11 U.S.C. § 1517. No such order is required if the sole purpose of the appearance is to collect accounts receivable on behalf of the foreign debtor.
(d) Motion for Comity or Cooperation. A request for comity or cooperation under 11
U.S.C. § 1509(b)(3) must be made by motion pursuant to subsection (a) of this rule.
(e) Advice of Foreign Representative’s Intent to Commence a Case Under 11 U.S.C.
§ 1511. Any foreign representative who intends to commence a case under 11 U.S.C. § 1511(a) must file a notice of intent to commence a domestic bankruptcy case with the court that has granted a petition for recognition under 11 U.S.C. § 1515. The notice must be served as provided by subsection (a) of this rule.
(f) Filing Proof of Claim or Equity Security Interest by Foreign Creditor or Equity
Security Holder in Chapter 7 Liquidation, Chapter 9 Municipality, or Chapter 11
Reorganization Case.
(1) This subsection applies in all chapter 7, 9, and 11 cases to each creditor and equity security holder that does not have an address in the United States.
(2) Every secured creditor described in subsection (f)(1) of this rule must file a proof
of claim. This obligation applies to every such creditor claiming rights in rem against property of the debtor (whether moveable or immoveable), or holding a claim based on a registration in a public register or based on intellectual property (such as a patent or trademark).
(3) The filing of a claim or statement of interest under FRBP 3003 by a foreign
creditor or security interest holder must be made as provided by that rule.
(4) Notice to a foreign creditor or security interest holder must be given at least 90
days before the deadline for filing a claim or notice of interest, unless otherwise
ordered by the court.
(5) Notice of a deadline to file a claim or security interest under FRBP 3003 must be
given in the official language of the country to which the notice is directed. In addition, the notice must be delivered by the same means that domestic notices and legal proceedings are delivered in that country, unless the court orders otherwise.
(g) Application for Recognition.
(1) A foreign representative’s petition for recognition must be filed with the bankruptcy court in the proper venue as provided by 28 U.S.C. § 1410. In
addition, it must be set for hearing pursuant to subsection (a) of this rule upon
notice as required by LBR 9013-1 or, if applicable, LBR 9075-1.
(2) A petition for recognition must be served pursuant to subsection (a) of this rule.
(3) If a petition for recognition requests the recognition of a foreign proceeding as a
foreign main proceeding, the petition must be accompanied by evidence of the
location of the debtor’s registered office, or the debtor’s residence in the case of
an individual. All such documents must be translated into English pursuant to 11
U.S.C. § 1515(d).
(4) A party contending that a foreign proceeding is not a foreign main proceeding must file evidence complying with FRBP 7056 in support of the party’s contention.
(5) A party seeking to rebut the presumption of 11 U.S.C. § 1516(c), that the debtor’s registered office or habitual residence is the center of the debtor’s main interests, must file evidence complying with FRBP 7056 in opposition to such a
determination. Should it appear from the affidavits or declarations of such a party
that the party cannot for reasons stated present evidence essential to justify the
party’s opposition, the court may order a continuance to permit evidence to be
obtained or discovery to be had or may make such other order as is just. When a
motion for recognition of a foreign main proceeding is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or
denials of the adverse party’s pleading, but the adverse party’s response, supported
by admissible evidence, must set forth specific facts showing that there is a
genuine issue for trial.
(6) If the court finds that there is a genuine issue for trial on the recognition of a
foreign main proceeding, the court will conduct an evidentiary hearing at the earliest practicable time, consistent with 11 U.S.C. § 1517(c).
(h) Relief from Automatic Stay; Prohibiting or Conditioning Use, Sale, or Lease of
Property; Use of Cash Collateral.
(1) A motion for relief from stay, or prohibiting or conditioning the use, sale, or lease
of property must be made pursuant to FRBP 4001(a). A motion for use of cash
collateral must be made pursuant to FRBP 4001(b). A motion pursuant to this
paragraph must be served pursuant to subsection (a) of this rule.
(2) A motion for relief from the automatic stay of 11 U.S.C. §§ 361 and 362, as
provided by 11 U.S.C. § 1520, must be made pursuant to FRBP 4001(a).
(i) Adversary Proceedings under FRBP 7001.
(1) FRBP 7001 applies to adversary proceedings under chapter 15.
(2) In addition to those proceedings listed in FRBP 7001, the following proceedings
in a chapter 15 case are adversary proceedings governed by FRBP 7001, et. seq.:
(A) A proceeding to recover money or property under 11 U.S.C. §§ 549 or 552;
(B) A proceeding to obtain an injunction or other equitable relief under 11
U.S.C. § 1519;
(C) A request for relief under 11 U.S.C. § 1521(a)(1), (2), (3) or (6); and
(D) An action initiated by a foreign representative pursuant to 11 U.S.C.
§ 1523.
(j) Protection of Creditors and Other Interested Persons. Any request for security or bond sought in connection with relief under 11 U.S.C. § 1522(b) or (c) must be made by motion pursuant to subsection (a) of this rule.
(k) Intervention by a Foreign Representative. Intervention in any proceedings in a state or federal court in the United States by a foreign representative must be pursuant to the rules applicable to that court.
(l) Cooperation and Direct Communication Between the Trustee and Foreign Courts.
A trustee or other person, including an examiner, acting on behalf of the debtor must
obtain authorization from the court to communicate directly with a foreign judge. Such
authorization may be requested by application after notice and a hearing.
(m) Protocols. A party seeking approval in the form of a protocol of an agreement concerning the coordination of proceedings must seek such approval by motion pursuant to subsection
(a) of this rule.
(n) Recognition of Domestic Case as a Main or Non-main Proceeding.
(1) A party in interest may request that the court designate a case under chapter 7, 9,
11, 12, or 13 as a main proceeding or a non-main proceeding. Such a request must
be made by motion and comply with the requirements of subsection (a) of this rule.
(2) A motion for designation of a case as a main proceeding pursuant to subsection
(n)(1) must be supported by evidence that the center of the debtor’s main interests
is located in the United States.
(3) A motion for designation of a case as a non-main proceeding pursuant to
subsection (n)(1) must be supported by evidence that the debtor has an
establishment in the United States.
(o) Final Report by Foreign Representative. A foreign representative who has been
recognized pursuant to 11 U.S.C. § 1517 must file a final report when the purpose of the representative’s appearance in a court in the United States is completed. A representative must report completely and accurately on the nature and results of the representative’s activities in the court in the United States.
(p) Foreign Authorities. Any paper filed with the court that cites a foreign or international authority in a case under the Bankruptcy Code must attach a copy of the international foreign authority, with a translation into English.
(q) Court-to-court Communication.
(1) A court may communicate with a foreign court in connection with matters relating
to proceedings before it for the purposes of coordinating and harmonizing proceedings before it with those in the other State.
(2) A court may communicate with an administrator in a foreign State or an authorized
representative of the court in that State in connection with the coordination and
harmonization of the proceedings before it with the proceedings in the other State.
(3) A court may permit a duly authorized administrator to communicate with a foreign
court directly, subject to the approval of the foreign court, or through an administrator in the other jurisdiction or through an authorized representative of the foreign court on such terms as the court considers appropriate.
(4) A court may receive communications from a foreign court or from an authorized
representative of the foreign court or from a foreign administrator. The court may
respond directly if the communication is from a foreign court (subject to subsection
(q)(6) of this rule) in the case of two-way communications and may respond
directly or through an authorized representative of the court or through a duly
authorized administrator if the communication is from a foreign administrator.
(5) Communications from a court to a foreign court may take place by or through:
(A) Sending or transmitting copies of formal orders, judgments, opinions, reasons for decision, endorsements, transcripts of proceedings, or other documents directly to the foreign court and providing advance notice to counsel for affected parties in such manner as the court considers appropriate;
(B) Directing counsel, a foreign administrator or a trustee to transmit or deliver
copies of documents, pleadings, affidavits, factums, briefs or other documents that are filed or to be filed with the court to the foreign court in such fashion as may be appropriate and providing advance notice to counsel for affected parties in such manner as the court considers appropriate; and
(C) Participating in two-way communications with the foreign court by telephone or video conference call or other electronic means, subject to subsection (q)(6) of this rule.
(6) In the event of communications between the courts in accordance with subsections
(q)(1) and (4) by means of telephone or video conference call or other electronic
means, unless otherwise directed by either of the two courts:
(A) Counsel for all affected parties may participate in person during the communication. Advance notice of the communication must be given to all parties in accordance with the rules of procedure applicable in each court;
(B) The communication between the courts must be on the record; and
(C) The courts and judges in each court may communicate fully with each other
to establish appropriate arrangements for the communication without the necessity for participation by counsel unless otherwise ordered by either of the courts.
(7) In the event of communications between the court and an authorized representative of the foreign court or a foreign administrator in accordance with subsections (q)(2) and (4) by means of telephone or video conference call or other electronic means, unless otherwise directed by the court:
(A) Counsel for all affected parties may participate in person during the communication. Advance notice of the communication must be given to all parties in accordance with the rules of procedure applicable in each court;
(B) The communication must be on the record; and
(C) Judges in each court may communicate fully with the authorized representative of the foreign court or the foreign administrator to establish appropriate arrangements for the communication without necessity for participation by counsel unless otherwise ordered by the court.
(8) A court may conduct a joint hearing with another court. In connection with any
such joint hearing, the following provisions apply, unless otherwise ordered or
unless otherwise provided in any previously approved protocol applicable to such
joint hearing:
(A) Each court must be able to simultaneously hear the proceedings in the other
court;
(B) Evidentiary or written materials filed or to be filed in one court must be transmitted to the other court or made available electronically in a publicly accessible system in advance of the hearing. Transmittal of such material to the other court or its public availability in an electronic system must not subject the party filing the material in one court to the jurisdiction of the other court;
(C) Submissions or applications by the representative of any party should be made only to the court in which the representative making the submissions is appearing unless the representative is specifically given permission by the other court to make submissions to it;
(D) Subject to subsection (q)(6)(B), the court may communicate with the foreign court in advance of a joint hearing, with or without counsel being present, to establish guidelines for the orderly making of submissions and rendering of decisions by the courts, and to coordinate and resolve any procedural, administrative or preliminary matters relating to the joint hearing; and
(E) Subject to subsection (q)(6)(B), the court, subsequent to the joint hearing,
may communicate with the foreign court, with or without counsel present, for the purpose of determining whether coordinated orders could be made by both courts to coordinate and resolve any procedural or non-substantive matters relating to the joint hearing.
(9) The court may, except upon proper objection on valid grounds and then only to the extent of such objection, recognize and accept as authentic the provisions of
statutes, statutory or administrative regulations, and rules of court of general
application applicable to the proceedings in the foreign jurisdiction without the
need for further proof or exemplification thereof.
(10) The court may, except upon proper objection on valid grounds and then only to theextent of such objection, accept that orders made in the proceedings in the other
jurisdiction were duly and properly made or entered on or about their respective
dates and accept that such orders require no further proof or exemplification for
purposes of the proceedings before it, subject to all such proper reservations as in
the opinion of the court are appropriate regarding proceedings by way of appeal
or review that are actually pending in respect of any such orders.
(11) The court may coordinate proceedings before it with proceedings in another State by establishing a service list that may include parties that are entitled to receive
notice of proceedings before the court in the other State (“non-resident parties”).
The court may also order that all notices, applications, motions, and other materials
served for purposes of the proceedings before the court be provided to or served
on the non-resident parties by making such materials available electronically in a
publicly accessible system or by facsimile transmission, certified or registered mail
or delivery by courier, or in such other manner as may be directed by the court.
(12) The foreign administrator or a representative of creditors in the proceedings in the other State or an authorized representative of the court in the other State may
appear and be heard by the court without thereby becoming subject to the jurisdiction of the court.
(13) The court may direct that any stay of proceedings affecting the parties before it
shall, subject to further order of the court, not apply to applications or motions
brought by such parties before the other court or that relief be granted to permit
such parties to bring such applications or motions before the other court on such
terms and conditions as it considers appropriate. Court-to-court communications
in accordance with subsections (q)(5) and (6) hereof may take place if an application or motion brought before the court affects or might affect issues or proceedings in the court in the other State.
(14) A court may communicate with a foreign court or with an authorized representative of such court in the manner prescribed by this rule for purposes of coordinating and harmonizing proceedings before it with proceedings in the other jurisdiction regardless of the form of the proceedings before it or before the foreign court wherever there is commonality among the issues and/or the parties in the
proceedings.
(15) Directions issued by the court under this rule are subject to such amendments,
modifications, and extensions as may be appropriate for the purposes described in
this rule and to reflect the changes and developments from time to time in the proceedings before it and before the foreign court. Any directions may be supplemented, modified, and restated from time to time and such modifications,
amendments, and restatements should become effective upon being accepted by
both courts. If either court intends to supplement, change or abrogate directions
issued under this rule in the absence of joint approval by both courts, the court
must give the foreign courts involved reasonable notice of its intention to do so.
(16) Arrangements contemplated under this rule do not constitute a compromise or
waiver by the court of any powers, responsibilities or authority and do not constitute a substantive determination of any matter in controversy before the court or before the foreign court nor a waiver by any of the parties of any of their substantive rights and claims or a diminution of the effect of any of the orders made by the court or the foreign court.
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