Local Rule LBR 4001-1: Motions for Relief from the Automatic Stay

LBR 4001-1: Motions for Relief from the Automatic Stay

(a) Scope. This Rule governs all motions made pursuant to Fed. R. Bankr. P. 4001(a) for relief from the automatic stay as provided for in § 362(a).

(b) Use of "Notice and Opportunity" Procedures. A creditor may request relief from the automatic stay by filing a motion with notice and opportunity to object pursuant to LBR 9013(c). However, nothing in this subparagraph prohibits a party from seeking relief from stay using other motion procedures permitted by LBR 9013. A secured party seeking relief from the automatic stay by motion with notice and opportunity to object must attach to its motion documentary proof that any lien it asserts has been perfected in accordance with applicable law.

(1) Combined with Motion for Abandonment. Notwithstanding LBR 9013(e), a creditor may combine a motion for abandonment of estate property with the motion for relief from the automatic stay as long as the words "abandon" or "abandonment" clearly appear in the title of the document. Notwithstanding the filing of a combined motion, the creditor still has the burden of proof under § 554 to show that the proposed abandoned property is of inconsequential value to the estate. The combined motion must be served on the entire matrix, and combining the two motions does not waive either of the filing fees associated with the respective motions.

(2) Response Filed. If a response is filed by a party, only the final hearing will be scheduled under LBR 9013(c)(3). The response must set forth with specificity the party's good-faith reasons for objecting to the motion and for believing that relief from the stay will be denied if a hearing is held. Notwithstanding the filing of a response, the Court may enter an order lifting the stay without conducting a final hearing if the response does not establish a good-faith basis for objecting to the motion.

(c) Use of Contested Motion Procedures. If a movant does not proceed under subparagraph (b) or if the Court determines that a relief from stay motion should proceed by preliminary and final hearing, the Clerk will schedule the preliminary hearing on the motion within 30 days from the filing of the motion and a final hearing within an additional 30 days. Should such scheduling exceed the time limits established by the Code, the Federal Rules of Bankruptcy Procedure, or these Rules, the Clerk will make such alternative arrangements as are required to comply with the time limitations of § 362(e). The Clerk will transmit a copy of the notice of hearing to the movant, who must serve the notice and motion in compliance with Fed. R. Bankr. P. 4001. The movant must file a proof of service of the notice and motion before any relief may be granted on the motion.

(1) Preliminary Hearing. At the preliminary hearing, the Court will determine: (A) whether material, disputed issues of fact exist, and (B) whether there is a reasonable likelihood that the party opposing the relief will prevail. These issues will be decided solely on the arguments of counsel and will be limited to no more than one hour unless the Court, on its own or on prior request of counsel, permits otherwise. The parties may further request that a preliminary hearing be treated as a final hearing. If the Court finds the existence of material, disputed facts and a likelihood that the party opposing relief will prevail, the hearing may be adjourned to a final hearing. At the conclusion of the preliminary hearing, the Court may decide questions of law, may define factual or legal issues to be decided at the final hearing, and may issue an appropriate scheduling order. If the preliminary hearing is adjourned to a final hearing, the stay will remain in effect until the Court orders otherwise. The Court may also grant adequate protection to the movant in the interim.

(2) Final Hearing. The Court may hear testimony at the final hearing or schedule a different time and date for testimony.

(d) Settlements. Nothing in this Rule prohibits the parties from filing a stipulation for relief from the automatic stay in accordance with LBR 4001-3(c).