Local Rule RULE 4001-1: Motions to Modify Stay.

RULE 4001-1. Motions to Modify Stay.

(a) Motion. A motion to modify stay under 11 U.S.C. § 362 shall be made in conformity with Mont. LBF 8. Consents to the motion shall conform to Mont. LBF 9 and 9-A. Copies or excerpts of security documents and proof of perfection do not need to be attached to a motion to modify stay if a proof of claim has been filed on or before the motion to modify stay. Instead, copies or excerpts of security documents and proof of perfection should be attached to the proof of claim filed on or before the motion to modify stay, and reference to such proof of claim shall be made in the motion to modify stay. Evidence of proof of the moving party's standing to file the motion shall be attached to the motion to modify stay. To avoid the need for a preliminary telephonic hearing, a creditor may, in its motion to modify stay, consent to a waiver of the 30-day rule outlined in 11 U.S.C. § 362(e).

(b) Impact of Postpetition Invoicing on Content of Motion and Specificity Required in Both Motion and Response to Motion.

(1) Relief on the Basis of Payment Default. A secured creditor seeking relief from the automatic stay based upon allegations of a postpetition payment default by debtor shall state that it seeks relief based on debtor's payment default and articulate with specificity the payment amounts and dates of debtor's alleged default, and attest that it responded promptly and thoroughly to trustee or debtor's reasonable requests for account information. In the event the secured creditor has not provided debtor with the account information required by this Local Rule, the Court may deny the secured creditor's request for recovery of attorney's fees or costs in connection with the motion, regardless of the agreement terms with debtor; and the Court may order the secured creditor to pay debtor's reasonable attorney's fees, if any, for responding to the motion.

(2) Debtor Opposing Relief from the Automatic Stay. Debtor opposing relief from the automatic stay in connection with a debt within the scope of this Local Rule shall state with specificity which allegation it disputes in creditor's motion and must append to the response either debtor's affidavit or copies of records showing proof of payment on the account, and articulate debtor's legal and factual basis for asserting that creditor is not entitled to relief from stay. Debtor's failure to meet these requirements may constitute cause for the Court to deny debtor's request for additional time and/or for the Court to consider the motion unopposed.

(3) Creditor's Duty to Provide Documentation to Objecting Chapter 13 Debtor. When a Chapter 13 debtor's objection to a motion for relief from stay contests, with specificity, either the payment default or creditor's application of payments, creditor shall immediately transmit debtor's payment history and a detailed accounting of how debtor's payments were applied to the outstanding obligation to debtor's counsel (or to debtor directly, if not represented by counsel), by electronic or facsimile means, to ensure that debtor has a reasonable opportunity to review this data before the hearing on the motion for relief from stay.

(c) Response and Hearing. If debtor, trustee, or party in interest files a response, then a hearing shall be noticed pursuant to Mont. LBR 9013-1(f). In the event such scheduled hearing date is 30 days beyond the date of the motion to modify stay, then a preliminary hearing within such 30-day period will be scheduled by the responding party after such party contacts the Clerk of Court to confirm the preliminary telephone hearing date and time, which shall be outlined in the response. The response and request for a hearing must include the legal and factual basis for the objection and, as appropriate, the following:

(1) If valuation of property is an issue, the estimation of value asserted by the respondent.

(2) If the existence, validity, or any other aspect of the notes or security documents is an issue, such objections must be stated with particularity.

(3) If debtor proposes to offer adequate protection, it must state with specificity the adequate protection offered to be provided (e.g., periodic payments, substitute liens, or other indubitable equivalents).

(4) If debtor asserts that debtor has made or attempted to make all delinquent payments to the moving creditor, but creditor has refused to accept such payments, debtor shall state this fact with specificity, state the dates of such payments, and provide a copy of the check or checks debtor alleges were sent to but refused by the moving creditor.

(5) If the moving creditor has requested waiver of the 14-day stay provided for in Fed. R. Bankr. P. 4001(a)(3), debtor shall state any objection it may have to the Court's order becoming effective immediately.

(d) Stipulation to Modify Stay. A stipulation to modify stay, filed in compliance with Mont. LBF 8-B, joined by creditor, debtor, and trustee, if any, may be filed without fee, together with a proposed order, and an order shall be promptly issued without a hearing. A creditor negotiating and filing such a stipulation is not required to retain an attorney. A form of a proposed order in compliance with Mont. LBF 8-C shall accompany any stipulation to modify stay.

Related Authority: 11 U.S.C. § 362, 1201, and 1301 Comment: In a Chapter 7, 12, or 13 case, a motion to modify stay should be served upon debtor, debtor's attorney, trustee, if any, U.S. Trustee, and any entity requesting special notice. In a Chapter 9 or 11 case, a motion to modify stay should be served upon all of the above entities and any committee appointed under the Code or its authorized agent, or if no committee has been appointed, creditors listed under Fed. R. Bankr. P. 1007(d). A stipulation to modify stay only needs to be served upon the parties signing the stipulation. Debtor's and trustee's consents to modify only need to be filed and not served upon any other entity. Note that pursuant to Fed. R. Bankr. P. 7004(b)(9), 7004(g) and 9014(b), all motions directed to debtor, in addition to being served upon debtor's counsel, must be served upon debtor by mailing a copy of the motion to debtor at the address shown in the petition or to such other address as debtor may designate in a filed writing. Such service by mail can be accomplished pursuant to Fed. R. Bankr. P. 9001(8), but debtor must be served as well as its counsel. Proof of service upon debtor is required. It is incumbent upon creditor moving for stay relief to attach evidence of its standing to file the motion, such as an assignment from the original note holder. Too often, the mortgage and note are in the name of one party while the moving party is a different party, and nothing appears within the motion connecting the two.