A plaintiff’s summary judgment motion in Bankruptcy Court is the topic of this blog post.
A plaintiff’s summary judgment motion in an adversary proceeding in United States Bankruptcy Court is authorized by Rule 7056 of the Federal Rules of Bankruptcy Procedure and rule 56 of the Federal Rules of Civil Procedure which states in pertinent part that summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P 56(a) and Fed. R. Bkr. P. 7056 (Rule 56)
Rule 7056 of the Federal Rules of Bankruptcy Procedure states that, “Rule 56 F.R.Civ.P. applies in adversary proceedings, except that any motion for summary judgment must be made at least 30 days before the initial date set for an evidentiary hearing on any issue for which summary judgment is sought, unless a different time is set by local rule or the court orders otherwise.”
Deadline for filing a plaintiff’s summary judgment motion in Bankruptcy Court.
Any party moving for summary judgment in an adversary proceeding in United States Bankruptcy Court must file the motion no later than 30 days after the close of all discovery in the case unless a different time is specified by a local rule or specific order of the Court.
The moving party should give at least 31 calendar days notice of the motion unless a different time is specified by a local rule or specific order of the Judge hearing the case. The moving party should carefully review the local rules for their Court as well as standing orders for the Judge as many districts and even individual Judges have very specific rules and procedures that must be followed.
One United States Bankruptcy Court that has very specific local rules is the Central District of California where local rules require that the moving party must meet and confer with the opposing party in an attempt to resolve any issues before any motion is filed and local rule 7056-1 has very specific requirements for the documents that must be included with the motion including a requirement that a Statement of Uncontroverted Facts and Conclusions of Law and proposed Judgment granting summary judgment must be served and filed with the motion.
Filing a Rule 56 summary judgment motion should be considered by any plaintiff who can show that their complaint clearly alleges sufficient facts to establish each and every required element of all causes of action contained in the complaint and that the answer filed by a defendant consists of nothing but generic “boilerplate” affirmative defenses which fail to state any facts sufficient to constitute affirmative defenses and that the discovery responses provided by defendant are also deficient and lacking in any specific facts or evidence.
The United States Supreme Court has stated that the moving party on a Rule 56 motion for summary judgment has the burden of demonstrating that there is no genuine issue of fact in dispute that requires a trial.
Once the moving party has met their burden the party opposing the motion cannot just rely on any denials in their pleadings but instead they must set forth specific facts showing a genuine issue of fact in dispute that requires trial.
The Ninth Circuit Court of Appeals has stated that the opposing party cannot defeat a motion for summary judgment simply by relying on conclusory allegations that are not supported by any evidence. And they have also stated that an issue of fact alone is not sufficient reason to deny a motion for summary judgment unless there is a genuine issue of material fact that is capable of directly affecting the outcome of the case, and that the evidence must be substantial and not merely speculative.
Sample plaintiff’s summary judgment motion in Bankruptcy Court for sale.
Attorneys or parties who would like to view a portion of a 20 page sample motion for summary judgment in United States Bankruptcy Court containing brief instructions, a table of contents and table of authorities as well as a memorandum of points and authorities with citations to case law and statutory authority, statement of uncontroverted facts and conclusions of law, sample declaration, proposed judgment granting summary judgment and proof of service by mail sold by the author can see below.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.
For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.