9013-1(d)(2) - Do I add +3 days to the 21 day notice if mailed?
Posted: Wed Oct 22, 2014 1:21 pm
9013-1(d) says 21 days--no extra 3 days in the rule.
9013-1(d) applies to noticed motions which are set for hearing. The only
exceptions to the 21 day rule in 9013-1(d) are the exceptions for: (1)
motions that may not require a hearing (9013-1(o) and others), claim
objections (30 days), and emergency motions (see LBR 9075).
Clifford Bordeaux
Certified Bankruptcy Specialist*
Bordeaux Law, P.C.
3731 Wilshire Boulevard, Suite 600
Los Angeles, CA 90010
T: 323-762-5529
F: 626-628-1820
E: cliff@bordeauxlaw.com
WEB: www.bordeauxlaw.com
*By State Bar of California Board of Legal Specialization
On Wed, Oct 22, 2014 at 12:54 PM, Jim Selth jim@wsrlaw.net [cdcbaa] wrote:
>
>
> I agree with Michael and believe it has been the accepted practice in this
> District for many years that the extra 3 days for mailing is only required
> for shout or die motions under 9013-1(o), which is why that extra 3 days
> language is included in the form Notice of Motion. Creditors routinely
> serve Motions for Relief from Stay 21 days before the hearing, and they are
> obviously mailed to the debtor, even if the attorney and trustee are served
> by ECF.
>
>
>
> Interestingly, last week I served and filed a Motion for Relief (Unlawful
> Detainer) exactly 21 days before the hearing date in a Judge Bason case,
> and the Debtors attorney (who has almost no bankruptcy experience per
> PACER) is demanding that I stipulate to continue because she is not an ECF
> user and was served by mail, so she says we needed to add 3 days for
> mailing. I searched Judge Basons relief from stay Tuesday calendars for
> the last few months and found a tentative ruling which read:
>
>
>
> Local Bankruptcy Rule 4001-1(c)(1) (incorporating 9013-1(d)(2)) requires
> that a notice of motion and motion for relief from the automatic stay be
> served on the debtor and the debtors attorney, among others, at least 21
> days prior to the hearing date designated on the notice. The motion was not
> served until 8/20/14 (see dkt. 23), which is less than 21 days before the
> scheduled hearing, which is not timely under the applicable rules, and
> under the circumstances Judge Bason is not persuaded to excuse such
> untimely service.
>
>
>
> James R. Selth
> Certified Bankruptcy Specialist*
> Weintraub & Selth, APC
> 11766 Wilshire Boulevard, Suite 1170
> Los Angeles, California 90025
> Telephone: (310) 207-1494
> Facsimile: (310) 442-0660
> E-Mail: jim@wsrlaw.net
>
> *Certified by State Bar of California as Certified Legal Specialist in
> Bankruptcy Law
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Monday, October 20, 2014 11:57 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] 9013-1(d)(2) - Do I add +3 days to the 21 day
> notice if mailed?
>
>
>
>
>
> My personal opinion is all you need is a 21 day notice even when serving
> by mail.
>
>
>
> Assuming you want to be overly cautious and to comply with the 21+3 day
> rule then you can circumvent the 3 additional day requirement by personal
> service of either the FRCP 5(b)(2)(a) or (b) type.
>
>
>
> Note: I think a negative notice motion though requires a 17 day notice
> window because the rule specifically says "14 days from date of service"
> which makes it fall under 9006(f). I am obviously reading 9006(f) to apply
> only to those things which the served party must begin to do things once
> they are served.
>
>
>
> The reason I don't think 9006(f) applies to regular motions is because
> they time to respond does not depend on when they are served. If you file a
> motion 60 days ahead of the hearing, they get to oppose 14 days prior. If
> you file 21 days prior to a hearing, opposing party still has to respond 14
> days prior.
>
>
>
> Experience wise I have seen experienced attorneys do both 21 and 24 day
> notice periods. I hope this helps.
>
>
>
> Sincerely,
>
> Michael Avanesian
>
>
>
> On Mon, Oct 20, 2014 at 9:12 PM, 'Leventhal Law Group, P.C.' law@3yl.com
> [cdcbaa] wrote:
>
>
>
> 21 plus 3 days if served by mail!
>
>
>
>
>
> Jonathan Leventhal, Esq..
> Leventhal Law Group, P.C.
> 818-347-5800
>
>
>
> NO EX-PARTE NOTICE VIA VOICE MAIL OR EMAIL: I do not accept e-mail notice
> for ex parte Applications via voicemail or by email.
>
>
>
> This email and any attachments thereto may contain private, confidential,
> and privileged material for the sole use of the intended recipient. Any
> review, copying, or distribution of this email (or any attachments thereto)
> by others is strictly prohibited. If you are not the intended recipient,
> please contact the sender immediately and permanently delete the original
> and any copies of this email and any attachments thereto.
>
>
>
> Leventhal Law Group, P.C. is a Debt Relief Agency under federal law.
>
>
>
> Note: The Leventhal Law Group, P.C. does not represent you until a
> written fee agreement has been signed by you and a representative of the
> Leventhal Law Group, P.C. and all fees listed in the agreement have been
> paid.
>
>
>
> -------- Original message --------
>
>
> Date:10/20/2014 8:52 PM (GMT-08:00)
>
> To: cdcbaa
>
> Subject: [cdcbaa] 9013-1(d)(2) - Do I add +3 days to the 21 day notice if
> mailed?
>
>
>
>
>
> I seem to recall it used to be that we had to give 24 days' notice for a
> motion, but then at some point it changed to 21 days. I still continue to
> calculate 24 days' notice because I cannot break that habit.
>
> Right now, for a particular motion, I really need my notice to be a strict
> 21 days, because I am a day shy of 24. Am I required to add 3 days to a
> mailed notice, or is it a strict 21 days whether mailed or personally
> served?
>
>
>
> Holly Roark
>
> Certified Bankruptcy Specialist*
>
> *and Sports Lawyer*
>
> holly@roarklawoffices.com **primary email address**
>
> www.roarklawoffices.com
>
> Central District of California
>
> Consumer Bankruptcy Attorney
>
> 1875 Century Park East, Suite 600
>
> Los Angeles, CA 90067
>
> T (310) 553-2600
>
> F (310) 553-2601
>
> *By State Bar of California Board of Legal Specialization
>
>
>
> *Reply via web post*
>
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