Local Rule L.R. 4001-1: Relief from the Automatic Stay.

L.R. 4001-1 - Relief from the Automatic Stay. A. Service of Motions for Relief from the Automatic Stay. The movant must serve any motion for relief from the automatic stay and notice of hearing on: the debtor, the debtor's attorney (if any), and the Trustee, if any, and any entity actually known by the movant to have a mortgage on or consensual interest in the collateral. In Chapter 11 cases, unless otherwise ordered, the movant must also serve the motion and notice on the L.R. 9013-3(D) Master Service List or on those who would be on such a list, and on any entity who may be affected by the motion.

B. Hearings on Motions for Relief from the Automatic Stay. Motions for relief from the automatic stay must ordinarily be set giving a minimum of twenty-one (21) days' notice. If the movant sets the motion for a hearing on, or requests a continuance of the hearing to a date that is more than thirty (30) days from the date of the motion, the movant will be deemed to have waived the movant's right to have the automatic stay terminated pursuant to Bankruptcy Code § 362(e)(1). If the movant sets the motion for a hearing on, or requests a continuance of the hearing to a date that is more than sixty (60) days from the date of the motion, the movant will be deemed to have waived the movant's right to have the automatic stay terminated pursuant to Bankruptcy Code § 362(e)(2).

C. Content of Motion for Relief from the Automatic Stay. 1. Motion for Relief from the Automatic Stay to Foreclose on Collateral. a. General Provisions. In a case filed under any chapter in which the movant is seeking to foreclose on collateral, the motion must recite the legal and factual basis on which relief is sought including: i. the basis for the debt; ii. the balance of the indebtedness on the petition date or otherwise; and iii. the date and manner of perfection, including book and page number, certificate of title, or UCC-1 recording. Documentation in support of a motion for relief must be filed in accordance with L.R. 9040. b. Chapter 13 Cases. In a Chapter 13 case in which the movant is seeking to foreclose its collateral, the following procedures apply: i. Balance due. The motion must include a statement of the amount due including a breakdown of the following categories: (1) unpaid principal; (2) accrued interest from a specific date to a specific date; (3) late charges from a specific date to a specific date; (4) attorneys' fees; (5) advances for taxes, insurance and the like; and (6) any other charges. ii. Post-Petition Payments. In Chapter 13 cases, where the movant is seeking relief from the stay for failure to make post-petition payments on a claim secured by real property that is the debtor's principal residence or is treated by the debtor's Chapter 13 plan pursuant to Bankruptcy Code § 1322(b)(5), the motion or attachments thereto, must contain a legible post-petition payment history. The payment history must set forth: (1) the date each post-petition payment was received, (2) the amount of each post-petition payment received, and (3) how each post-petition payment was applied by the movant. Pursuant to Bankruptcy Code § 362(g)(2), the debtor has the burden to prove any post-petition payment(s) alleged to have been made but not set forth in the motion, or attachments thereto. iii. Exhibits. Exhibits must be filed in accordance with L.R. 9040, including those containing evidence of perfection, such as a deed of trust, certificate of title or UCC-1 form showing the recorder's stamp and verifying lien perfection. iv. Order Granting Relief from Automatic Stay - Effect on Secured Claims. All orders granting relief from the automatic stay in a Chapter 13 case must contain the following language: The Trustee is directed to discontinue payment on all claims secured by the property against which relief from the automatic stay is granted (except claims for sewer service or real estate tax debts) in this Order. The Trustee is directed to resume payment on such claims on notification pursuant to L.R. 3021(A). 2. Motions for Relief from the Automatic Stay for All Other Purposes. In a case under any chapter of the Bankruptcy Code, a motion for relief from the automatic stay for any purpose other than to foreclose on collateral must include all legal and factual allegations supporting the relief requested and comply with L.R. 9040.

D. Responses to Motions for Relief from the Automatic Stay. Any response to a motion for relief from the automatic stay must be filed no later than seven (7) days before the hearing date set for the motion for relief. The response must specifically admit or deny the allegations in each paragraph. A general denial is insufficient and prohibited. When a response asserts adequate protection, the response must state how the movant will be adequately protected if the automatic stay remains in effect. The parties must file exhibits in accordance with L.R. 9040.

E. Duty to Confer. As required by L.R. 2093(B), in advance of the hearing, attorneys for the parties involved in a motion for relief should confer with respect to the issues raised by the motion to determine whether a consensual order may be entered or whether a stipulation may be reached concerning relevant facts.

F. Consent Motions for Relief from the Automatic Stay. 1. General Provisions. A consent motion for relief from the automatic stay must be styled as a "consent motion." Pursuant to L.R. 9013-1(F), a consent motion for relief from the automatic stay need not be set for hearing and may be ruled on without hearing. The Clerk of Court is authorized to waive the filing fee for a motion for relief from the automatic stay when the motion is filed with the written consent and signature of the Trustee and all parties primarily affected by the relief sought. Consent may be shown by separate certificate of consent or certificate of no opposition signed by the necessary party(ies), but such consent or no opposition must be filed as part of the consent motion. All consent motions for relief from stay should be filed using the proper non-fee consent motion event in the CM/ECF system to avoid automatic assessment of the filing fee. Consent motions for relief to proceed with a domestic action do not require the signature of the non-debtor spouse. 2. Chapter 7 Cases. The Trustee's Report of No Distribution will be deemed the Trustee's consent to any motion for relief from the automatic stay. Neither the Trustee's verbal nor written consent will be required to have the fee waived pursuant to subsection (1) where such a report has been filed. 3. Chapter 13 Cases. In a Chapter 13 case, to have the fee waived pursuant to subsection (1), the written consent of the Trustee is necessary.

G. Orders on Motions for Relief from the Automatic Stay. Proposed Orders on any motion for relief from the automatic stay must follow the format in L.R. 9050 and must specifically describe the property (collateral) that is the subject of relief. "So Ordered" provisions must not be used with motions for relief from the automatic stay. In Chapter 13 cases, the order must include the language set forth in L.R. 4001-1(C)(1)(b)(iv).

H. Mandatory Form Consent Order & Stipulation re: Relief from Stay on Real Property. The Court adopts as a Local Form "Consent Order and Stipulations in Settlement of Motion for Relief." This form is available on the Court's web site. Absent good cause, use of this form is mandatory in Chapter 13 cases.

I. Emergency and Ex Parte Relief from the Automatic Stay. Procedures for emergency and ex parte relief from the automatic stay must be as stated in L.R. 9013-2(C) and (D), respectively.