Local Rule Local Rule 4001-1: Relief from Automatic Stay. — Bankr. S.D. Tex.

Local Rule 4001-1. Relief from Automatic Stay.

(a) Motions for relief from stay:

(1) Motions for relief from the stay must contain a certificate that the movant has conferred with opposing counsel (or, in the event of pro se parties, opposing parties) and been unable to reach an agreement on the requested relief. If no conference has been conducted, movant must certify the dates and times on which movant has attempted to confer. Notwithstanding the foregoing, no conference is required if the movant files a certification that a confirmed plan provides for the surrender of the collateral that is the subject of the motion.

(2) A motion for relief from stay must include a hearing date from the judge's web page. Failure to obtain a hearing date from the judge's web page and to include the notice in BLR 4001-1(a)(3) is a waiver of the automatic termination of the automatic stay under 11 U.S.C. § 362(e) or 1301(d).

(3) The motion must state immediately below the title:

This is a motion for relief from the automatic stay. If it is granted, the movant may act outside of the bankruptcy process. If you do not want the stay lifted, immediately contact the moving party to settle. If you cannot settle, you must file a response and send a copy to the moving party at least 7 days before the hearing. If you cannot settle, you must attend the hearing. Evidence may be offered at the hearing and the court may rule.

Represented parties should act through their attorney.

There will be a hearing on this matter on [date] at [time] in courtroom _____, [address].

(4) In addition to service as required by FED. R. BANKR. P. 4001(a)(1), on the same day that it is filed, the motion must be served on debtor, debtor's attorney, parties requesting notice, parties with an interest in collateral that is the subject of the requested relief, co-debtors under 11 U.S.C. § 1301, parties who are identified as a party against whom relief is sought in the motion, and the trustee.

(5) If the moving party schedules a hearing on a motion for relief from stay or agrees to continue the hearing to a date more than thirty (30) days after the date the motion was filed (21 days for motions to lift the co-debtor stay), the party shall be deemed to have waived the automatic termination under 11 U.S.C. § 362(e) and/or 1301(d).

(6) All motions to lift stay that request foreclosure on improved real property must be accompanied by documents evidencing the debt and lien perfection, and a payment history, including an explanation of transaction codes. Responses disputing the payment history must specify payments made that are not reflected in the payment history, the dates of payment, the amounts, and the mode. Evidence not accompanying the motion or response may be inadmissible in an evidentiary hearing.

(7) Failure of the movant to prosecute the motion at a preliminary hearing may result in dismissal of the motion for want of prosecution unless there is (i) an order continuing the hearing and waiving the 30-day requirement; (ii) a stipulation of the parties to continue the hearing and waive the 30-day requirement; or (iii) an agreed order resolving the motion that is entered prior to or is signed at the hearing.

(8) Motions for relief from the stay may never be combined with a request for other relief.

(9) In addition to other procedures applicable to motions for relief from the stay, a chapter 13 debtor must timely respond to motions for relief from the stay. A timely response includes the filing of an agreed order, a denial that conforms with FED. R. BANKR. P. 7008, a statement of nonopposition, or another accurate statement reflecting the current status of the motion. If no timely response is filed, the court may grant the motion for relief from the stay with or without a hearing, at its discretion.

(10) Responses should state the efforts of respondent to reach an agreement with movant and either (i) itemize each disputed issue of law or fact; or (ii) comply with FED. R. CIV. P. 8 as applied by FED. R. BANKR. P. 7008.

(11) In any evidentiary hearing conducted on a motion for relief from the automatic stay, all counsel shall certify before the presentation of evidence (1) that good faith settlement discussions have been held or why they have not been held; (2) that counsel has complied with Local Rule 9013-2 (except that the debtor is presumed to be a witness and need not be identified); and (3) the anticipated length of the hearing.

(b) Motions filed under BR 4001(b), 4001(c), or 4001(d) for the use of cash collateral, obtaining credit, or for approval of agreements on BR 4001 matters, must state immediately below the title:

This motion seeks an order that may adversely affect you. If you oppose the motion, you should immediately contact the moving party to resolve the dispute. If you and the moving party cannot agree, you must file a response and send a copy to the moving party. You must file and serve your response within 14 days of the date this was served on you. Your response must state why the motion should not be granted. If you do not file a timely response, the relief may be granted without further notice to you. If you oppose the motion and have not reached an agreement, you must attend the hearing. Unless the parties agree otherwise, the court may consider evidence at the hearing and may decide the motion at the hearing.

Represented parties should act through their attorney.

If a hearing has been set on the motion, this language must be added at the end of the notice:

There will be a hearing on this motion on [date] at [time] in courtroom _____, [address].

(1) If the agreement is in an individual chapter 7 case or a chapter 13 case and concerns consumer goods, the debtor's homestead or a non-business-use vehicle, notice should be given to the chapter 13 trustee, the debtor, any co-obligor, and any party with an interest in the collateral.

(2) Motions to approve all other agreements governed by Bankruptcy Rule 4001(d) shall be served under BLR 2002-1(a)(3).

(d) Attorneys' fees will be awarded to creditors for filing motions for relief from the stay as follows:

(1) Undersecured creditors will not be awarded attorneys' fees for the filing of a motion for relief from the stay in a chapter 13 bankruptcy case.

(2) With respect to motions by oversecured creditors or by home lenders filing post-confirmation motions governed by § 1322(b)(2), the court will approve agreed orders (i) providing for attorneys' fees and costs not to exceed the amount stated in Form Order 0-400 "Chapter 13 Agreed Order Conditioning Automatic Stay (Home)" ; and (ii) providing for attorneys' fees and costs exceeding that sum only upon a submission of fee statements reflecting actual time incurred. All requests for attorneys' fees must (i) include a certification that the amount requested is less than or equal to the amount that will be paid by the holder of the lien to the holder's counsel; and (ii) be reasonable under the facts and circumstances.

(3) Attorneys' fees in matters not resolved by agreed orders will be considered on an evidentiary basis.

(e) In each chapter 13 case, the Court will issue an order that authorizes the use of estate vehicles under § 363 and provides adequate protection to the holders of liens on the vehicles.

(1) The adequate protection order will require the debtor to (i) maintain insurance on the vehicle in the amount required by the debtor(s) prepetition contract; (ii) provide proof of insurance to the lien holder; and (iii) enter into a wage order or EFT Order not later than 14 days after the petition date.

(2) As additional adequate protection, the lien holder will be given an administrative claim, with priority under § 507(b), in an amount equal to 1.25% of the value of the vehicle for each 30 days that elapses from the date of the adequate protection order. For example, if the vehicle is valued at $10,000, a § 507(b) adequate protection claim in the amount of $125 will accrue each month. In the event of a dismissal or conversion of the chapter 13 case, the trustee will distribute the proceeds in accordance with § 1326(a)(2). This will result, in most cases, in payments being made in the following order of priority:

(A) First, to the vehicle lien holders in the amount of the adequate protection reserve;

(B) Second, to debtor's counsel for unpaid fees for which an application is filed on or before 21 days after entry of the order of dismissal and that have been allowed by court order;

(D) Payments under paragraph "1" shall be made following the expiration of 14 days of entry of the dismissal order, unless the dismissal order is stayed.

(3) The debtor or any other party in interest may object to the adequate protection order not later than 30 days after entry of the court's order. The objecting party must state the date that the hearing will be conducted, which date will be the next chapter 13 panel after the expiration of 14 days from the date of the objection. The objection must be served on the debtor, the debtor's counsel, the chapter 13 trustee, and any party holding security interest in the vehicle. The objecting party must attend the hearing and present evidence in support of the objection.

(4) For purposes of valuation in the absence of any objection, the vehicle value will be determined based on 90% of the "Average Price Paid" stated on the website www.jdpower.com (utilizing the version available without charge) for a vehicle (without options or mileage adjustments) located at the first zip code listed for the Debtor on the docket sheet, unless the Court orders otherwise. In determining the principal amount due to the lien holder under the plan, the ' 507(b) payments will be (i) deducted from the value of the vehicle, if the value of the vehicle is less than the lien; and (ii) applied to interest if the value of the vehicle is greater than the lien. If the value of the vehicle is less than the lien, interest will begin to accrue on the confirmation date.

(5) The adequate protection order will not provide protection to a vehicle lender if the debtor voluntarily surrenders the vehicle by delivering the vehicle to the vehicle lender within 28 days of the petition date.

(6) If a debtor proposes to make direct, post-petition payments to a lender on a vehicle loan that was not in default as of the petition date, no additional adequate protection payments are required, unless otherwise ordered by the Court. If a debtor defaults on direct payments, the debtor must make a cash payment to the lien holder at or before the time of any plan modification. The cash payment must equal or exceed 1.25% of the vehicle's value (determined in the manner set forth in paragraph 4 above) for each one month of missed direct payments.

(f) Motions for relief from the automatic stay that pertain to exempt residences or exempt vehicles ("Consumer Lift Stay Motions") are governed by this BLR 4001-1(f).

(1) Parties who file motions for relief from the stay on exempt residences or exempt vehicles in chapter 7 and chapter 13 cases must comply with this BLR 4001-1(f) and must use the forms promulgated by the court from time to time.

(2) Variance from this rule is allowed, if exceptional circumstances exist.

(A) Exceptional circumstances include:

(1) A motion for relief from the stay filed against a repeat bankruptcy case filer for which the movant seeks relief other than a routine termination of the stay; or

(2) A motion for relief from the stay on which there are disputes regarding the extent, validity, or priority of liens on the collateral that is the subject of the motion.

(B) A party believing that are other exceptional circumstances justifying exemption from this rule must allege the exceptional circumstances with particularity in the motion.

(3) Variance from this rule is allowed, if exceptional circumstances exist. When exceptional circumstances are alleged, the court may conduct an evidentiary hearing at which time the exceptional circumstances must be demonstrated by a preponderance of the evidence.

(4) Prior to filing a Consumer Lift Stay Motion, the movant must attempt to contact the debtor(s)' counsel to discuss whether an agreement can be reached utilizing the court's agreed order forms. If such an agreement can be reached, the parties may submit a Motion for Entry of Agreed Order under FRBP 4001. Conferences may be attempted by telephone or by e-mail. In all conferences, movant's counsel must provide a contact person with a direct telephone number for future discussions. The motion may be filed by the movant in accordance with the following table:

(5) If the parties cannot reach agreement to submit an agreed order in the court's format, the party seeking relief from the stay may file a Consumer Lift Stay Motion in the court's format along with a proposed order, also in the court's format. Responses by the debtor must be one of the following and must be filed at least 7 days before the hearing:

(A) Submission of an agreed order terminating the stay utilizing a form from the court's website. If an agreed order is filed in accordance with these procedures, the court usually will issue the order prior to the hearing. Attendance at the originally scheduled hearing is not necessary, by either party. If the court declines to issue the order, the court will issue an order for further proceedings.

(B) Submission of an agreed order conditioning the stay utilizing a form from the court's website. If an agreed order is filed in accordance with these procedures, the court will usually issue the order prior to the hearing. Attendance at the originally scheduled hearing is not necessary, by either party. If the court declines to issue the order, the court will issue an order for further proceedings.

(C) Filing an answer or other response. Answers must comply with FRBP 9011. Responses must be based on reasonable investigation and must not be filed for delay or other improper purpose. A response stating that the debtor(s)' attorney has not been able to contact the debtor(s) or a general denial not based on reasonable investigation may not be sufficient to prevent default relief. If a timely response is filed, attendance at the hearing by both parties is required.

(6) If a sufficient response has not been timely filed, the movant must submit a proposed form of default order with a certification of default. The proposed form of default order and certification must comply with the court's form as promulgated from time to time. The court may issue a default order if an adequate response is not filed at least 7 days before the hearing. If the court issues a default order prior to the hearing, counsel need not appear at the hearing. If the court has not issued a default order and a party who has failed to respond appears at the hearing, the court may nevertheless grant default relief or may set a date for an evidentiary hearing.

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