Local Rule 4001-2: AUTOMATIC STAY – DEBTOR'S ASSERTION OF EXCEPTION FOR LEASE OF RESIDENTIAL PROPERTY UNDER § 362(L)

RULE 4001-2. AUTOMATIC STAY – DEBTOR'S ASSERTION OF EXCEPTION FOR LEASE OF RESIDENTIAL PROPERTY UNDER § 362(L).

(a) Filing of the Initial Certification, Official Form 101A, and Delivery of Payment of One Month's Rent.

(1) If a state court judgment of eviction has been entered against a debtor pre-petition, the debtor resides in that property as of the petition date, and the debtor wishes to remain in that leased property post-petition, the debtor must include with their bankruptcy petition:

(A) an Official Form 101A ("Initial Statement About an Eviction Judgment Against You") with the "Certification About Applicable Law and Deposit of Rent" section of the form completed;

(B) a copy of the pre-petition judgment of eviction;

(C) a copy of the lease or rental agreement, or an affidavit from the debtor specifying the monthly rent amount; and

(D) a sum equal to the monthly rent due under the applicable rental agreement, payable to the debtor's lessor (i.e., the landlord), in the form of a bank check, attorney trust account check, or money order.

(2) When a debtor's case is filed electronically, the rent payment must be delivered to the Clerk by hand delivery, first-class mail, or private courier service within three business days after filing the petition. If the Clerk receives the rent payment within that three-day period, the Clerk will treat the rent payment as if received with the petition (provided Official Form 101A and a copy of the judgment of eviction were filed with the petition).

(3) If a debtor timely delivers the rent payment to the Clerk, but the filing is deficient due to the debtor's

(A) failure to file a copy of the judgment of eviction,

(B) failure to file Official Form 101A,

(C) delivery of a rent payment that is less than the amount due, or

(D) delivery of a rent payment that is not valid tender (e.g., a check that is unsigned or not payable to the lessor), then the Clerk will note the deficiency on the docket and immediately return the rent payment to the debtor with a deficiency notice informing the debtor that the Clerk will not accept or process the rent payment unless the debtor cures the filing deficiency, by filing the required documents and/or delivering the proper payment, within seven days of the petition date.

(b) Clerk's Notification. If the debtor delivers to the Clerk Official Form 101A together with the required copy of the judgment of eviction and the proper rent payment, the Clerk will

(1) issue a notice to the lessor;

(2) set a deadline of seven days after service of notice to the lessor within which time the lessor may either (A) consent to the inapplicability of the stay exception under § 362(b)(22), or (B) object to the accuracy of one of the debtor's statements in Official Form 101A or the sufficiency of the debtor's payment, and request the entry of an order stating that the § 362(b)(22) exception does apply; and

(3) notify the lessor that if the lessor files its consent, the Clerk will promptly transmit the rent payment to the lessor, and if the lessor objects, the Clerk will promptly set a hearing.

(c) Lessor's Consent, Objection, or Non-Response to Official Form 101A.

(1) Consent. If a lessor files its consent to a debtor's certification in Official Form 101A, the consent must include a verification of the amount due for the one-month rental period and specify the address to which the lessor requests the Clerk send the rent payment. Upon receipt of the lessor's consent, the Clerk will transmit the rent payment to the lessor at the address the lessor provided.

(2) Objection. If the lessor objects to any statement in the debtor's certification (Official Form 101A), the Clerk will set a hearing on the objection, to be held as soon as possible and no later than 10 days after the lessor filed the objection. The lessor's objection must identify which statement(s) in the debtor's certification the lessor disputes and whether the lessor objects to the sufficiency of the debtor's payment. If the Court overrules the lessor's objection(s), upon entry of the Court's order r finding the debtor is entitled to the stay, the Clerk will transmit the rent payment to the lessor.

(3) Non-Response. If the lessor fails to file either a consent or an objection within the seven-day period set by the Court, unless the Court finds otherwise, the lessor will be treated as if it waived the opportunity to object. Promptly thereafter, the Clerk will transmit the rent payment to the lessor.

(d) Filing the Second Certification, Official Form 101B.

(1) Within 30 days of filing the petition, the debtor must file with the Clerk, and serve on the lessor, Official Form 101B ("Statement About Payment of an Eviction Judgment Against You") indicating the debtor has cured, under applicable non-bankruptcy law, the entire monetary default that was the basis of the issuance of the judgment of eviction. The debtor must file Official Form 101B regardless of whether the lessor objected to Official Form 101A.

(2) However, if the lessor is a public housing entity, the debtor does not need to file Official Form 101B or pay the pre-petition arrears that were the basis for the eviction judgment.

(e) Lessor's Objection to Official Form 101B. If the lessor files an objection to any of the debtor's statements in Official Form 101B, the Clerk will set a hearing on the objection, to be held as soon as possible and no later than 10 days after the lessor filed the objection. The lessor's objection must identify which statement(s) in the debtor's certification the lessor disputes.

(f) Debtor's Failure to Timely Deliver Payment of One Month's Rent or Timely File Official Form 101A or 101B. If a debtor fails to timely deliver the proper rent payment, or to timely file all required documents, as specified in paragraph (a) above, or fails to timely file Official Form 101B as specified in paragraph (d) above, then the Clerk will note the filing deficiency on the docket. Thereafter, the Clerk will promptly serve upon the debtor and the lessor a certified copy of the docket entry indicating the debtor failed to comply with the applicable statute, and declaring the exception to the automatic stay specified in § 362(b)(22) applies.