Local Rule 4001-1: MOTIONS FOR RELIEF FROM THE AUTOMATIC STAY

RULE 4001-1 MOTIONS FOR RELIEF FROM THE AUTOMATIC STAY

(a) Motions.

(1) General. Motions for relief from the automatic stay must state whether relief is sought under subsection (d)(1) or (d)(2) of 11 U.S.C. § 362, or both.

(2) Motions under 11 U.S.C. § 362(d)(1). Motions alleging cause based on lack of adequate protection must state with specificity the basis for the allegation.

(3) Motions under 11 U.S.C. § 362(d)(2). The movant must make a prima facie case for relief and attach documents claimed to support such relief, including the following, as necessary: o a description of the collateral for which relief is requested; o proof of a legally enforceable debt; o if the movant is the assignee of the debt, a statement identifying the original creditor and proof of assignment; o proof of a perfected security interest in the collateral; o the value of the collateral, and any documents supporting the valuation; o the existence and priority of other liens against the collateral, if known; o the total amount owed to the moving creditor; or o the dates, number, and amount of delinquent prepetition payments.

(b) Filing and Service of Motion and Notice.

(1) General. A motion for relief from the automatic stay and a notice of hearing must comply with Fed. R. Bankr. P. 4001(a) and Local Rule 9006-1(b)(2).

(2) Service of Motion. The motion and notice of hearing must be filed with the court and served on the following parties, if applicable: (A) the parties designated in Fed. R. Bankr. P. 4001(a)(1)(A); (B) the debtor; (C) the debtor's attorney; (D) the case trustee; and (E) any codebtor and codebtor's attorney.

(c) Objection and Reply.

(1) Contents. An objection to a motion for relief from the automatic stay must admit or deny each factual allegation of the motion. A factual allegation that is not admitted or denied is deemed admitted for the purpose of a hearing on the motion.

(2) Service. An objection must be filed with the court and served within the time period in Local Rule 9006-1(b)(2).

(3) Reply. The movant may file with the court and serve on the movant a reply to an objection within the time period in Local Rule 9006-1(c).

(d) Hearing.

(1) General. Hearings on motions for relief from the automatic stay may be set as a preliminary hearing on the court's law and motion calendar or as an evidentiary hearing.

(2) Preliminary Hearing.

(A) Setting a Preliminary Hearing. A movant may reserve time for a preliminary hearing on the court's law and motion calendar pursuant to Local Rule 9013-2. If an objection is timely filed, the initial hearing will be conducted as a preliminary hearing.

(B) Offer of Proof. At the preliminary hearing, the movant must make a detailed offer of proof. The court will take no live testimony. The offer of proof must describe the evidence to be presented, what the evidence tends to show, and the grounds for admitting the evidence.

(C) Disposition. The court may rule on the motion following the preliminary hearing if no genuine issues of material fact exist. If the parties raise genuine issues of material fact at the preliminary hearing, the court may set the matter for a final evidentiary hearing.

(D) Uncontested Motion. If an objection is not timely filed, the movant may request, and the court may grant, the relief requested without a hearing pursuant to Local Rule 9013-2(f).

(3) Final Hearing.

(A) Setting a Final Hearing. The movant may set the motion for a final evidentiary hearing by obtaining from the court a set date for the hearing pursuant to Local Rule 9013-1. The notice of hearing must state that the hearing will be an evidentiary hearing.

(B) Evidence. Unless the court orders otherwise, the parties must be prepared to present evidence and live testimony at the hearing.

(C) Uncontested Motion. If an objection is not timely filed, the movant may request, and the court may grant, the relief requested without a hearing pursuant to Local Rule 9013-1(f).

(e) Waiver of Stay under Fed. R. Bankr. P. 4001(a)(4). A motion requesting a waiver or reduction of the 14-day stay under Fed. R. Bankr. P. 4001(a)(4) must include the basis for the request. The court may deny the request for failure to state an adequate basis for waiver of the 14-day stay even if the motion is uncontested.