Local Rule RULE 4001-1: MOTIONS FOR RELIEF FROM STAY; MOTIONS TO CONTINUE OR IMPOSE STAY; MOTIONS CONFIRMING NO STAY IN EFFECT; SERVICE; HEARING
Bankr. D. Mass. — General rule
RULE 4001-1. MOTIONS FOR RELIEF FROM STAY; SUBMISSION OF MOTIONS AND OPPOSITIONS TO CONTINUE OR IMPOSE STAY; MOTIONS CONFIRMING NO STAY IN EFFECT; SERVICE; HEARING
(a) (a) Motion for Relief from Automatic Stay and Opposition
(1) A party in interest seeking relief from the automatic stay provided by 11 U.S.C. § 362(a) shall file, in accordance with Fed. R. Bankr. P. 9014, a motion, in which the moving party specifies the statutory basis for the relief sought, and a proposed order.
(b) If the motion contains a request for authority to foreclose pursuant to a mortgage or security interest, the movant shall provide the following information:
(2) (1) If the movantmoving party seeks relief for cause pursuant to 11 U.S.C. § 362(d)(1), thenthe moving party shall specify with particularity the cause shall be specifically stated in the motionwarranting relief.
(3) (2) If the movantmoving party seeks relief with respect to a stay of an act against property pursuant to 11 U.S.C. § 362(d)(1) or (d)(2), then the motion shall stateset forth:
(A) (A) the amounts and priority of the debt alleged to be owed to the movantmoving party;
(B) (B) the identification, amount, and priority of each other encumbrance affecting the property, including real estate taxes and other municipal charges;
(C) (C) the total of the amounts set forth in subsections (A) and (B);
(D) (D) the fair market value and liquidation value of the collateral, with any available appraisal(s) attached;
(E) (E) either that (i) there is no other collateral securing the obligation, or (ii) there is other collateral securing the obligation, indicating the identity, value, and valuation method and attaching any available appraisal(s);;
(F) (F) the original holder of the obligations secured by the security interest and/or mortgage and every subsequent transferee, if known to the movantmoving party, and whether the movantmoving is the holder of that obligation or an agent of the holder; and
(G) (G) if known to the movantmoving party, whether and where any declaration of homestead has been recorded against the property.
(4) (3) If the movantmoving party seeks relief from stay pursuant to 11 U.S.C. § 362(d)(3), the motion shall:
state :
(H) (A) (A) whether a plan of reorganization has been filed in the case;
(I) (B) (B) state whether the debtor has commenced monthly payments to creditors with interests in the real estate pursuant to 11 U.S.C. § 362(d)(3)(B); and
(J) (C) (C) identify the original holder of the obligations secured by the security interest and/or mortgage and every subsequent transferee, if known to the movantmoving party, and whether the movantmoving party is the holder of that obligation or an agent of the holder.
(4) (5) (4) If the movantmoving party seeks in rem relief from stay pursuant to 11 U.S.C. § 362(d)(4), the motion shall include:
(A) the information set forth in MLBR 4001 1(b)(2); and
(A) (B) the circumstances of the alleged scheme to delay, hinder, and defraud creditors with particularity, including:
(i) (i) the history of bankruptcy filings affecting the real property at issue (including the filing date(s),, docket number(s) and disposition of the prior bankruptcy filing(s)); and/); or
(ii) (ii) the details of any transfers of the real property at issue without Court approval or the consent of the movantmoving party (including the date of the transfer(s),, the stated consideration and the actual consideration, the name of the grantee(s) and the recording information for the deed(s) at issue).
(5) (6) (c) A party opposing a motion for relief from the automatic stay must file an opposition to the motion within fourteen (14) days, inclusive of the three (3) day mailing period provided in Fed. R. Bankr. P. 9006(f), after service of the motion. The opponentopposing party shall either admit, deny, or state that the opponentopposing party has insufficient knowledge to admit or deny each and every allegation of the motion, shall state specifically why the motion should not be granted, and shall state the terms of any offer of adequate protection made by the debtor or trustee. If the value alleged by the movantmoving party is disputed, any appraisal available to the opponentopposing party shall be attached to the opposition. If the motion is scheduled for an expedited hearing before the expiration of the fourteen (14) -day period, then the opposition shall be filed before the expedited hearing. Unless the Court orders otherwise, if the estate representative fails to file a response within the time prescribed herein, then the estate representative shall be deemed to have assented to the motion.
(b) (d) Motions to Continue or to Impose the Automatic Stay
(6) (1) Any party in interest seeking the continuation of the automatic stay pursuant to 11 U.S.C. § 362 (c)(3)(B) or seeking the imposition of the automatic stay pursuant to 11 U.S.C. § 362 (c)(4)(B) shall file a motion, an affidavit in support of the motion, and a proposed order.
(7) (2) (1) The motion shouldshall:
(A) (A) identify the priorset forth any bankruptcy case(s) filed by for the debtor, individually or jointly, pending within the preceding year(including the filing date, docket number, and its/their disposition; of such case);
(B) (B) state whether any motion for relief was pending in the prior case(s) at the time of dismissal;
(C) (C) if any motion for relief had been filed in the prior case(s),, state whether such motion(s) was/were resolved by terminating, conditioning, or limiting the stay;
(D) (D) explain the extent to which the party in interest wishes the automatic stay to be continued or imposed, including the length of the proposed continuation or imposition and the parties affected (i.e. all creditors or only particular creditors); and
(E) (E) set forth facts demonstrating that the filing of the later case is in good faith as to the creditors to be stayed.
(8) (3) (2) The motion shall be filed within fourteen (as soon as possible but no later than 14) days from the filing of the newmost recently filed petition. If the motion is not timely filed, the Court may deny the motion.
(c) (e) With regard to a motion forMotion Confirming No Stay Is In Effect
(9) (1) Any party in interest seeking an order confirming that no stay is in effect pursuant to 11 U.S.C. § 362 (j) or 11 U.S.C. § 362 (c)(4)(A)(ii), the) shall file a motion shall:and a proposed order.
(2) (1) The motion shall:
(A) set forth the debtor'sdebtor's history of bankruptcy filing(s)cases within the preceding year (including the filing date(s),, docket number(s), and disposition of the prior bankruptcy filing(s));such case); and
(B) (2) state whether the motion is filed pursuant to 11 U.S.C. § 362 (j) or 11 U.S.C. § 362 (c)(4)(A)(ii).
(b) (d) (f) All documents filed pursuant to this Rule shall be served in accordance with Fed. R. Bankr. P. 4001(a) and 9006(d) (f) upon all attorneys and parties who have filed appearancesan appearance and requested service of all notices and pleadings, and on any other party that the Court may designate. If the motion seeksmoving party requests relief with respect to an act against property, the moving party shall serve the motion shall also be served on all entities that claim an interest in the property, including all co-owners, lienholders, and taxing authorities.
(c) (e) (g) A preliminary hearing on a motion for relief from the automatic stay will be a consolidated preliminary and final nonevidentiary hearing unless at the conclusion of the preliminary hearing the Court schedules a final evidentiary or nonevidentiary hearing.
(h) If the estate representative fails to file a response within the time prescribed in section (c), then the estate representative shall be deemed to have assented to the motion.