Local Rule 4001(a)-1: RELIEF FROM AUTOMATIC STAY

RULE 4001(a)-1 RELIEF FROM AUTOMATIC STAY

(A) Applicability of Contested Matter Rules: All motions for relief from stay, except those under paragraph (G) herein, are contested matters and are governed by FRBP 9014, 11 U.S.C. §362(c), (d), (e), (h), (l) and (m) and these Local Bankruptcy Rules.

(B) Caption: The motion for relief from stay, and any pleading or other paper (excepting exhibits) filed pursuant to such a motion, shall include the same caption as an adversary proceeding except that the caption shall not include an adversary proceeding (AP) number.

(C) Response Period: A separate notice of motion (Official Form 420A) is not required, however, unless provided otherwise by the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure or order of the Court. The motion for relief from stay shall clearly state and conspicuously provide the following notice, using bold print and capitalized text:

NOTICE YOUR RIGHTS MAY BE AFFECTED. YOU SHOULD READ THESE PAPERS CAREFULLY AND DISCUSS THEM WITH YOUR ATTORNEY, IF YOU HAVE ONE IN THIS BANKRUPTCY CASE. (IF YOU DO NOT HAVE AN ATTORNEY, YOU MAY WISH TO CONSULT ONE.)

IF YOU DO NOT WISH THE COURT TO GRANT THE RELIEF SOUGHT IN THE MOTION, OR IF YOU WANT THE COURT TO CONSIDER YOUR VIEWS ON THE MOTION, THEN WITHIN 14 DAYS FROM THE DATE OF SERVICE OF THIS MOTION, YOU MUST FILE A WRITTEN RESPONSE EXPLAINING YOUR POSITION WITH THE COURT AND SERVE A COPY ON THE MOVANT. UNLESS A WRITTEN RESPONSE IS FILED AND SERVED WITHIN THIS 14-DAY PERIOD, THE COURT MAY DEEM OPPOSITION WAIVED, TREAT THE MOTION AS CONCEDED, AND ISSUE AN ORDER GRANTING THE REQUESTED RELIEF WITHOUT FURTHER NOTICE OR HEARING.

IF YOU MAIL YOUR RESPONSE TO THE COURT FOR FILING, YOU MUST MAIL IT EARLY ENOUGH SO THE COURT WILL RECEIVE IT ON OR BEFORE THE EXPIRATION OF THE 14-DAY PERIOD.

(D) Contents of Motion for Relief from Stay: The following material, when applicable, must be included in a motion for relief from stay:

(1) a detailed statement of the debt owed to the movant;

(2) if periodic payments are in arrears, the amount of arrears accrued prepetition and the amount of arrears accrued post-petition;

(3) a description of the property encumbered;

(4) a description of the security interest and its perfection;

(5) a statement of the basis for the relief claimed, such as, a lack of adequate protection or the absence of equity and that the property is not necessary for an effective reorganization. The specific facts constituting cause shall be set forth if a motion is brought for cause;

(6) if the movant asserts a valuation of the subject property, the motion shall state the amount of the valuation, the date, and the basis therefore (appraisal, bluebook, etc); and

(7) the specific nature of the relief from stay that is requested.

(E) Filing Requirements: With the original motion for relief from stay, the proponent shall also file:

(1) the proper filing fee and

(2) [Repealed]

(3) a properly completed proof of service indicating that the movant served the motion for relief from stay upon each party required to receive notice under paragraph (F) of this Local Bankruptcy Rule.

(4) [Repealed]

(F) Service of Motion: The movant shall serve a copy of the motion upon the debtor and, if applicable, upon:

(1) the debtor's attorney;

(2) the trustee;

(3) each official committee appointed in the case or its authorized representative;

(4) if a chapter 11 case, any additional creditors if required by FRBP 4001(a)(1); and

(5) any other party in interest as directed by the Court.

(G) Requests for Additional Relief: If a motion filed pursuant to FRBP 4001(a) requests relief beyond the termination, modification or conditioning of the automatic stay, and such additional relief is within the scope of FRBP 7001, it is deemed an adversary proceeding and it shall be accompanied by:

(1) an adversary proceeding filing fee and

(2) a properly completed Adversary Proceeding Cover Sheet as provided in LBR 7003-1.

If a party seeks an expedited hearing under 11 U.S.C. §362(e), only the specific issue of the automatic stay shall be considered at such hearing, unless the Court otherwise directs.

(H) Relief from Codebtor Stay in Chapter 13 Cases: Motions for relief from a stay of action against a codebtor in a chapter 13 case are contested matters and are governed by FRBP 9014, 11 U.S.C. §1301 and these Local Bankruptcy Rules. The motion shall clearly state in the caption of the motion the subsection of 11 U.S.C. §1301 under which the party is proceeding.

(1) Caption: The caption for a motion for relief from codebtor stay, and any pleading or other paper (excepting exhibits) filed pursuant to such a motion, shall include the caption described in paragraph (B) of this Local Bankruptcy Rule.

(2) Service and Time for Response: Service shall be as set forth in paragraph (F) of this Local Bankruptcy Rule. The notice served on the codebtor in any relief action shall include notice of the response period.

(a) The time for response under 11 U.S.C. § 1301(c)(1) and (c)(3), and the notice served upon the codebtor in any such relief action, shall be as provided for in paragraph (C) of this Local Bankruptcy Rule.

(b) As provided for in 11 U.S.C. §1301(d), the stay shall automatically terminate with respect to a request under 11 U.S.C. §1301(c)(2) unless a response is filed and served no later than 20 days after the filing of the request. In a relief action under 11 U.S.C. §1301(c)(2), the notice shall include the following language: "If you do not file a written response by the deadline shown, the law provides that the stay protecting you from further legal action against you by this creditor will automatically terminate as provided for in 11 U.S.C. §1301(d)."

(I) Rent Deposit and Transmittal Procedure Under 11 U.S.C. §362(l): Any deposit of rent made by or on behalf of the debtor, pursuant to §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 upon the filing of the petition. The Clerk is directed to promptly transmit the rent deposit to the lessor, by certified mail, return receipt requested, to the address listed on the petition.

(J) Motions for Relief from Stay Guidelines: The Court has adopted guidelines supplementing the Local Bankruptcy Rules to facilitate and provide for uniformity pertaining to motions practice and procedures including motions for relief from stay. These guidelines shall be published and updated periodically by the Clerk, as approved by the Court (Exhibit 7 to these Local Bankruptcy Rules) and available from the Clerk upon request or from the Court's internet web site, www.vaeb.uscourts.gov.

Comments 4001(a)-1(C) The notice conforms substantially with Official Form 20A so that movant is not required to serve a separate "notice of motion." The subsection of 11 U.S.C. §1301 under which a party is proceeding must now be clearly stated in the caption of the motion for relief of codebtor stay. [Changes effective 1/1/97.]

4001(a)-1(G)(2) This adjustment was made to note the proper 20 days for response instead of 15, in line with 11 U.S.C. §1301(d). [Change effective 2/1/00.]

4001(a)-1(D) This rule is new. The rule requires the inclusion of relevant information so that interested parties can formulate a position on the motion prior to the preliminary hearing. The requirements of Local Bankruptcy Rule 9022-1, regarding court orders, apply with respect to motions for relief from the automatic stay. [New Rule effective 8/1/03.]

4001(a)-1 Paragraph (B) of the rule has been amended to effect a technical change in that contested matter (CM) numbers no longer are required. [Change effective 7/1/04.] [Stylistic change effective 1/1/07.]

4001(a)-1 Paragraph (C), at the fourth and final paragraph of the "NOTICE", is amended by deleting the phrase "by the CLERK" to conform to the procedures to be used in those divisions where available dates may be obtained on-line. Subparagraphs (E)(2) and (E)(4) are repealed in light of the amendments to the Court's CM/ECF Administrative Procedures at new subparagraph IC7, effective December 1, 2006. Subparagraph (F)(2) is amended by adding a bracketed statement regarding action that a movant must take in Alexandria and Richmond division cases only. [Changes effective 1/15/07.]

4001(a)-1 Former Interim Procedure 4001(a)-1(A) is incorporated, as modified, into LBR 4001(a)-1. Former Interim Procedure 4001(a)-1 is incorporated as new paragraph (I). Paragraphs (E) and (F) are amended. Stylistic changes have been made to the text of the LBR as well. [Amendments effective 12/01/09.]

4001(a)-1 A technical change has been made at paragraph (G)(2). Time-computation adjustments have been made, as needed, to conform to a revision to the Federal Rules of Bankruptcy Procedure that takes effect December 1, 2009. Stylistic changes have been made to the text of the LBR as well. [Changes effective 12/01/09.]

4001(a)-1 Paragraph (F) of the rule is reorganized as paragraph (F)(2) no longer is required. [Changes effective 12/1/15.]

4001(a)-1(H) Paragraph (H)(2) of the rule is amended to conform to 11 U.S.C. §1301(d). The rule also is reorganized both to clarify that the noted time period tracks the response to the filing of a request rather than the date of service, as set forth in the current LBR provision, and to make more clear that 11 U.S.C. §1301(d) only applies to §1301(c)(2) and not to Code §1301(c)(1) and(c)(3). [Changes effective 12/01/15.]

4001(a)-1(C) The current form is replaced with new Official Form 420A, which includes stylistic changes. The form also is amended to change the phrase "mail" to "send" to reflect the fact that there are various methods of providing documents to other parties. [Changes effective 12/1/16.]

Paragraph (H) A conforming technical change is made to paragraph (H), therein, by adding "U.S.C." to the first reference made to §1301. [Change effective 12/1/22.]

4001(a)-1(C) This paragraph is amended to require the notice language be provided in conspicuous typeface and to remove language from the required notice indicating that a separate notice of hearing will be provided. [Change effective 08/01/23.]

4001(a)-1(J) This paragraph is new and references the Court's Motions for Relief from Stay Guidelines, which appear at Exhibit 7 to the Rules; this reference was previously set forth in Rule 9013-1(K). [New paragraph (J) effective 08/01/23.]

4001(a)-1(H) The amendment to this rule corrects a typographical error in the relevant statutory citation. [Change effective 12/01/23.]