Local Rule RULE 4001–1: Relief from The Automatic Stay; Prohibiting or Conditioning the Use, Sale, or Lease of Property; Using Cash Collateral; Obtaining Credit; Various Agreements

RULE 4001–1 Relief from The Automatic Stay; Prohibiting or Conditioning the Use, Sale, or Lease of Property; Using Cash Collateral; Obtaining Credit; Various Agreements

(a) Form of Motion.

(1) Title. Generally, a motion for relief from automatic stay of 11 U.S.C. § 362(a) shall bear a title clearly identifying it as a motion for relief from the automatic stay. The motion may be combined with a request for relief from co-debtor stay pursuant to 11 U.S.C. § 1201(a) or 11 U.S.C. § 1301(a), and the title shall clearly state the additional request for relief. Any motion for relief from stay that includes a request for the imposition of an equitable servitude, or any other prospective relief that would limit a stay arising under 11 U.S.C. § 362(a), shall be titled in a manner that clearly and conspicuously so states.

(2) Combining Motions. In addition to complying with Bankruptcy Rule 4001(a), each motion under 11 U.S.C. § 362(d) for relief from the automatic stay may be filed together with any other motion requesting unrelated relief. A motion that is combined with alternative forms of relief shall be titled in a manner that clearly and conspicuously so states. The moving party must comply with applicable NextGen CM/ECF docketing protocols, noticing requirements, and fee requirements.

(3) Proposed Order. The motion must be submitted with a proposed order that includes the description of any property involved. The proposed order must be attached as an exhibit or attachment to the motion rather than as a separate docket entry.

(b) Contents of Motion. The following material, when applicable, shall be included in a motion for relief from stay:

(1) A detailed statement of debt owed to movant.

(2) If periodic payments are in arrears, the amount of arrears that have accrued pre-petition and/or post-petition.

(3) A description of the property encumbered.

(4) A description of the security interest related to the motion, with all documents evidencing the interest and its perfection attached.

(5) A statement of Bankruptcy Code section(s) and the factual basis for relief, such as lack of adequate protection, absence of equity, or that the property is not necessary for an effective reorganization.

(i) The specific facts constituting cause shall be set forth if a motion is brought for cause.

(6) If the moving party asserts a valuation of the subject property, a statement of valuation amount, date, and the basis of the valuation. and/or

(7) The specific nature of the relief from stay that is requested.

(c) Notice.

(1) Filing of Notice of Hearing with Motion. The moving party shall file and serve with the motion with at least fourteen (14) days' notice, a notice of the motion and notice of hearing (which complies with this Rule and Local Bankruptcy Rule 9013–1). If the hearing is set more than thirty (30) days from the date of filing of the motion, the moving party is deemed to have waived the 30-day automatic termination rule of 11 U.S.C. § 362(e).

(2) Notice of § 1301(c)(2) Co-Debtor Relief. If a motion seeks relief under 11 U.S.C. §1301(c)(2), the notice filed therewith must include the following language: "If you do not file a written response by the deadline shown, the law provides that the stay protecting you from further legal action against you by this creditor will automatically terminate as provided for in 11 U.S.C. §1302(d)."

(d) Service of Motion. The moving party shall serve a copy of the motion upon the debtor and if applicable, upon: (1) debtor's attorney; (2) any duly appointed trustee; (3) any official committee appointed in the case or its authorized representative; (4) if a chapter 11 case, any additional creditors if required by Bankruptcy Rule 4001(a)(1); and (5) any other party in interest as directed by the Court.

(e) Obtaining a Hearing Date. Prior to filing a motion for relief from the stay, the moving party shall consult the Court's website to obtain a date and time for the hearing from the dates that are available or contact the Courtroom Deputy. The first hearing scheduled on a contested motion for relief shall be a preliminary hearing unless the Court orders otherwise.

(f) Response to Motion for Relief from Stay. A response to a motion for relief from stay shall include detailed answers to each numbered paragraph of the motion, be timely filed, and be served on the movant. All defenses to the motion shall be stated in the response. If a timely opposition is not filed, the Court may grant or otherwise dispose of the motion prior to the scheduled hearing date.

(g) Obligation to Provide Payment History. If a motion seeking relief from the automatic stay includes as a ground for relief the failure to make post-petition payments, then at least seven (7) days prior to the hearing, the movant must file and serve upon the debtor's attorney (or the debtor, if pro se) a payment history.

(h) Discovery Related to Motions for Relief. A party to a motion for relief may take deposition testimony of any party or witness and may request the production of documents or things and inspection of land, upon actual delivery of at least fourteen (14) days' notice, and the minimum time requirements of Bankruptcy Rules 7030 and 7034 shall not apply. If a party files a motion to shorten time to respond to any discovery requests made under this Rule, the motion shall contain conspicuous notice that the objection deadline is seven (7) days from the filing of the motion. In extraordinary circumstances, the Court, upon motion of a party but without notice or hearing, may authorize the use of interrogatories or other discovery procedures, and it may shorten the notice requirements of any applicable rule.

(i) Rent Deposit and Transmittal Procedure Under 11 U.S.C. § 362(l). Any deposit of rent made by or on behalf of the debtor, pursuant to § 362(l)(1)(B), shall be made in the form of a certified check or money order payable to the order of the lessor, and it shall be delivered to the Clerk upon the filing of the petition. The Clerk shall promptly transmit the rent deposit to the lessor, by certified mail, return receipt requested, to the address listed on the petition.