I noticed the following tentative ruling continuing a motion for relief hearing recently:
The Motion [for relief] was . . . served on Debtor by mail, and set for hearing exactly 21 days later. While LBR 9013-1(d)(2) specifies that notice must be filed and served not later than 21 days before the hearing date, FRBP 9006(f) requires that an additional 3 days be provided for motions served by mail.
I recalled several years ago being told by a judge that the three day rule doesn’t apply to MFR. Yikes. Have I been neglecting a defense since it seems to be more common these days that these motions are served on exactly 21 days notice?
No – FRBP 9006(f) applies only to certain motions. FRBP 9006(f) states:
When there is a right or requirement to act or undertake some proceedings within a prescribed period after being served and that service is by mail . . . three days are added after the prescribed period would otherwise expire under Rule 9006(a).
Meaning? When the motion tells the debtor he must do something within a certain am0unt of time after being served, he gets three more days if served by mail. Most of our motions require a response within 14 days of the hearing, not within some amount of time after being served. So the additional three days doesn’t apply to most motions.
On a side note: a year or so ago I was served with a MFR on a very large piece of property, we thought worth $25 million. The big-firm creditor lawyers gave us exactly 21 days notice – giving me 7 days to prepare the opposition. When I complained (a little) to the judge at the hearing he scowled at me and I immediately dropped the comment. The scowl told me – “why didn’t you file a motion for continuance?” “You can’t just show up at the hearing and complain about the short time.” I’m pretty sure he would have granted the request for a continuance.