Local Rule 4001-1: AUTOMATIC STAY – RELIEF FROM AUTOMATIC STAY

RULE 4001-1. AUTOMATIC STAY – RELIEF FROM AUTOMATIC STAY.

(a) Debtor's Motion Through a Chapter 13 Plan. A debtor may request the stay be lifted in favor of a secured creditor as an Embedded Motion in Part 3.5 of Official Form 113. The debtor must serve that motion according to the Bankruptcy Rules, and separately file a proposed order for that relief.

(b) Contents of a Creditor's Motion for Relief from Stay, Generally. A creditor's motion for relief from stay must include the following information to the extent applicable:

(1) a description of the property (e.g., the VIN, make, and model of a vehicle, the serial number for a mobile home or equipment, the name and docket number of a pending court action, the street address of real property, the volume/page number where title to and liens against real property are recorded);

(2) the names and purported interests of all parties known, or discovered after reasonable investigation, who claim to have an interest in the property;

(3) the amount of the outstanding indebtedness on each lien, the fair market value of the property, and the basis for the valuation;

(4) legible and complete copies of all relevant liens and security agreements or, if voluminous, the initial page and signature pages of those documents;

(5) evidence of perfection of the movant's lien or interest; and

(6) copies of any prior orders of the Court upon which the motion relies.

(c) Additional Requirements Based on Post-Petition Payment Default.

(1) Requirement of Pre-Motion Default Notification. If a secured creditor alleges the debtor has defaulted on any post-petition payment obligation, the secured creditor must (A) send the debtor and the debtor's attorney (if any) a notice of default setting forth with specificity the dates and amounts of missed post-petition payments, and (B) refrain from filing a motion for relief from stay until at least seven days has passed since sending that notice.

(2) Motions. When a secured creditor moves for relief from stay based on allegations of a post-petition payment default, in addition to including the information itemized in paragraph (b) above, the secured creditor's motion must include the following:

(A) in all cases, (i) a statement that the motion is based upon the debtor's default, and (ii) an affidavit specifically identifying by date and amount, the payment(s) alleged to be in default, or a printout of payments made on the trustee's website, if applicable;

(B) in a chapter 7 case, a statement that the secured creditor has responded promptly and thoroughly to the case trustee or debtor's reasonable request for account information; and

(C) in a chapter 13 case, a statement that the secured creditor has provided the debtor with the required account information and monthly statements in a timely fashion. See Local Rule 3071-1(e).

(3) Objections. A debtor objecting to the secured creditor's motion must:

(A) state with specificity those allegations of the secured creditor that the debtor disputes;

(B) state the debtor's legal and factual basis for asserting the secured creditor is not entitled to relief from stay; and

(C) append to the objection an affidavit of the debtor that states (i) the amount of each payment the debtor made, (ii) the date of each payment, (iii) the form of each payment, (iv) the means by which each payment was transmitted, and (v) the address to which the debtor sent each payment. The debtor's affidavit must also include copies of records showing proof of payment(s) on the obligation or include an explanation as to why those records are not included and when they will be filed. The debtor's failure to meet these requirements may result in the Court treating the motion as unopposed.

(4) Secured Creditor's Additional Obligations When a Chapter 13 Debtor Objects. When a chapter 13 debtor contests the payment default or alleges the secured creditor misapplied their payment(s), and complies with the procedure in subparagraph (3) above, the secured creditor must transmit to the debtor's counsel (or to a pro se debtor directly) the debtor's payment history and a detailed accounting of how the secured creditor applied the debtor's payment(s) to the outstanding obligation, within three business days after the debtor files their objection. The secured creditor must transmit this information in a manner that ensures the debtor will have a reasonable opportunity to review the information before the hearing on the relief from stay motion. If the secured creditor has not provided debtor's counsel (or pro se debtor) with the required account information in a timely and complete fashion, the Court may deny the relief from stay motion, deny the secured creditor's request for recovery of its attorney's fees and/or costs in connection with the motion, or grant such other relief it deems appropriate. The Court may also order the secured creditor to pay the debtor's reasonable attorney's fees (if any), for responding to the motion.

(d) Service of Motion. A creditor seeking relief from stay must file a motion with a certificate of service showing service of the motion on the debtor, the debtor's attorney (if any), the case trustee (if any), any parties affected by the motion or having an interest in the property that is the subject of the motion, all parties in interest who have requested notice, and the United States Trustee. See Local Rule 9013-6; see also Local Rule 9013-1(h).

(e) Stipulation for Relief from Stay.

(1) A stipulation for relief from stay must (A) describe the property or interest involved, (B) state the property's fair market value, (C) state the basis for the valuation, and (D) list all encumbrances against the property with the name of each lien holder and the amount of each lien. A stipulation for relief from stay must also include the statements, but need not include the supporting documents, required by paragraph (b) above. No affidavit is required if there are no facts in dispute.

(2) Notice required under Local Rule 9013-2(c) is waived for a stipulated motion for relief from stay provided (A) all parties entitled to notice have been served with the motion, and (B) all parties in interest have filed their consent. See Local Rule 9011-4(d). Additionally, notice of a stipulation need not be served if the motion for relief from stay was previously noticed for hearing and no party objected or the Court overruled any objection that was filed.

(f) Final Hearing. The Court will hold a hearing on a motion for relief from stay within 30 days of its filing except in those instances where a stipulation is filed pursuant to paragraph (e) above, or the motion is filed under the default procedure. See Local Rule 9013-4(b)(3). If a movant schedules a hearing on a motion for relief from stay for a date that is more than 30 days after the date the motion was filed, the movant must include an affirmative waiver of the termination of the stay after 30 days that is imposed per § 362(e). With such waiver, the stay will continue pending through the conclusion of a final hearing and determination on the motion under § 362(d). Likewise, if the parties agree to postpone the hearing, an equal extension of time will be deemed added to that 30-day period.

(g) Evidentiary Hearing. The final hearing on a motion for relief from stay will be an evidentiary hearing unless the parties agree otherwise. Parties planning to present evidence must contact the courtroom deputy to ensure there is sufficient time for the presentation of evidence and must file and serve a Bankruptcy Rule 9014(e) notice of evidentiary hearing at least seven days prior to the hearing unless the Court approves a shorter time. See Local Rule 9014-1(b)(2); see also Local Form V.

(h) Order Granting Relief from Stay.

(1) Required Language in Orders Authorizing Sale of Collateral. If the order granting relief from stay authorizes the sale of collateral, the order must state that if there are surplus monies from the sale, the secured creditor must deliver those funds to the case trustee and serve the case trustee with an accounting of the sale, promptly after the sale is completed. The order must also clearly identify the collateral that is the subject of the relief from stay order and, if the collateral is real property, the description must be sufficiently detailed for filing in the land records.

(2) Required Language Regarding Subordinate Lien Holders. Where other parties have subordinate liens on the subject property, the proposed order granting relief from stay shall include the following language, with identification of the subordinate lien holders:

This order also grants relief from the stay to any holder of a subordinate lien against the same property, allowing such lien holder to pursue its rights, to bid at a sale, to redeem, and/or to enforce its lien in connection with any action taken by the movant against the subject property pursuant to this order. However, this Court makes no determination as to the validity, priority, or amount of the subordinate liens.

(3) Separate Order Required. Whenever relief from stay is sought, the movant must file a separate proposed order granting that relief, except as otherwise set forth in these Rules. See Local Rule 9013-1(f). Relief from stay (whether absolute or conditional) is not available through an ordering paragraph in a plan confirmation order or any order which grants other relief.

(i) Conditional Relief from Stay. If an order granting conditional relief from stay, or a stipulation for conditional relief from stay, does not state how much time a debtor has to rebut the factual assertions in an affidavit of default filed in furtherance of the order, then the debtor will have seven days to rebut an affidavit of default. If the order (or stipulation) provides for a different time period, then the order (or stipulation) will control.