Local Rule 4001-1: RELIEF FROM THE AUTOMATIC STAY
Bankr. E.D.N.C. — General rule
Rule 4001-1 RELIEF FROM THE AUTOMATIC STAY
(a) STANDING MODIFICATION. The automatic stay provided in 11 U.S.C. § 362(a) is modified as follows:
(1) Chapter 7.
(A) Secured Creditors. The automatic stay shall be modified as provided in Local Bankruptcy Rule 4001-2(a).
(B) Internal Revenue Service. The Internal Revenue Service is authorized to: (i) make income tax refunds, in the ordinary course of business, directly to the debtors unless otherwise ordered by the court or otherwise instructed by the chapter 7 trustee; (ii) offset against any refund due a debtor any taxes due the United States government pursuant to 11 U.S.C. § 553; (iii) assess any tax liability satisfied by offsetting any refunds, when such liability has not been assessed previously; and (iv) assess tax liabilities shown on voluntarily filed returns and other agreed-to liabilities.
(2) Chapter 11.
(A) Internal Revenue Service.
(i) The Internal Revenue Service may contact the debtor or the trustee and the debtor's depository to verify that all required tax deposits are being made and reported and that all tax returns are being filed and remittances paid in the manner prescribed by law.
(ii) The debtor or trustee and the debtor's designated depository shall assist the Internal Revenue Service with the monitoring and verification of the provisions of this rule.
(B) North Carolina Department of Revenue.
(i) The North Carolina Department of Revenue may contact the debtor or the trustee and the debtor's depository to verify that all required tax deposits are being made and reported and that all tax returns are being filed and remittances paid in the manner prescribed by law.
(ii) The debtor or trustee and the debtor's designated depository shall assist the North Carolina Department of Revenue with the monitoring and verification of the provisions of this rule.
(3) Chapter 12.
(A) Internal Revenue Service.
(i) The Internal Revenue Service may contact the debtor or the trustee and the debtor's depository to verify that all required tax deposits are being made and reported and that all tax returns are being filed and remittances paid in the manner prescribed by law.
(ii) The debtor or trustee and the debtor's designated depository shall assist the Internal Revenue Service with the monitoring and verification of the provisions of this rule.
(B) North Carolina Department of Revenue.
(i) The North Carolina Department of Revenue may contact the debtor or the trustee and the debtor's depository to verify that all required tax deposits are being made and reported and that all tax returns are being filed and remittances paid in the manner prescribed by law.
(ii) The debtor or trustee and the debtor's designated depository shall assist the North Carolina Department of Revenue with the monitoring and verification of the provisions of this rule.
(4) Chapter 13.
(A) Secured Creditors. Secured creditors may: (i) contact the debtor about the status of insurance coverage on property securing a claim; and (ii) contact the debtor about any post confirmation payment in default if a confirmed plan provides for direct payments by the debtor to creditors.
(B) Internal Revenue Service. The Internal Revenue Service is authorized to: (i) make income tax refunds, in the ordinary course of business, directly to the debtors unless otherwise ordered by the court or otherwise instructed by the standing chapter 13 trustee; (ii) offset against any refund due a debtor any taxes due the United States government pursuant to 11 U.S.C. § 553; (iii) assess any tax liability satisfied by offsetting any refunds, when such liability has not been assessed previously; and (iv) assess tax liabilities shown on voluntarily filed returns and other agreed-to liabilities.
(b) RELIEF WITH RESPECT TO SURRENDERED PROPERTY IN CHAPTER 13 CASES. If a chapter 13 debtor's plan provides that property is to be surrendered to a secured creditor, the order confirming the plan may provide for the modification of the automatic stay and co-debtor stay with respect to the property.
(c) MOTION FOR RELIEF FROM AUTOMATIC STAY.
(1) Secured creditors seeking relief from the automatic stay on grounds of post-petition default by the debtor must specify in a motion that they seek relief on grounds of the debtor's default and must itemize, with specificity, all amounts alleged to be past due.
(2) If no response is filed, the motion may be granted without a hearing. If a response is filed, a debtor must comply with the requirements of Local Bankruptcy Rule 9014-1(f). Upon the debtor's request, the creditor shall immediately transmit the debtor's payment history to counsel for the debtor (or to the pro se debtor) by electronic or facsimile transmission or other expedited means.
(d) MOTION FOR CONTINUANCE OR IMPOSITION OF AUTOMATIC STAY. The court may, in its discretion, rule on a motion for continuation or imposition of the automatic stay under 11 U.S.C. § 362(c)(3)(B) and § 362(c)(4)(B) without hearing if: (1) the debtor files a motion for continuation of the automatic stay within 5 days of the petition date; (2) no objection is filed by a party in interest; (3) the motion is accompanied by a notice of motion and the debtor's affidavit or unsworn declaration under 28 U.S.C. § 1746 with sufficient facts to support the motion; (4) the motion and accompanying documents are timely served on all creditors and the trustee, if one has been appointed, contemporaneously with the filing of the motion; and (5) the movant shall contact the clerk's office by the email address designated for the courtroom staff of the appropriate judge to inform that the motion has been filed so that the motion may be immediately referred to the judge.
(e) STAY OF EVICTION, UNLAWFUL DETAINER OR SIMILAR ACTION
(1) INITIAL CERTIFICATION. The certification required by 11 U.S.C. § 362(l)(1)(A) shall be made and designated on Form B 101A, Initial Statement About an Eviction Judgment Against You, and filed with the clerk of court.
(2) FILING OF JUDGMENT. The debtor must file a copy of the pre-petition judgment for possession of the debtor's residence together with Form B 101A.
(3) CERTIFICATION. The certification required by 11 U.S.C. § 362(l)(1)(B)(2) shall be made and designated on Form B 101B, Statement About Payment of an Eviction Judgment Against You, and filed with the clerk of court if, within the 30-day period after filing of the petition, the debtor has complied with the requirements of 11 U.S.C. § 362 (l)(1)(A).
(4) DEPOSIT. Any deposit of rent made by or on behalf of a debtor, pursuant to 11 U.S.C. § 362(l)(1)(B), shall be made in the form of a certified check or money order payable to the order of the lessor, and delivered to the clerk of court upon filing of a petition.
(5) TRANSMISSION TO LESSOR. Upon the clerk's receipt of the deposit and certification tendered pursuant to 11 U.S.C. § 362(l)(1), the clerk shall transmit the certified check or money order promptly to the lessor, by certified mail, return receipt requested, to the address listed on the petition.