Relief from the Automatic Stay – Procedure

A request for relief from the automatic stay in accordance with § 362 of the Code or the codebtor stay in accordance with § 1201 or § 1301 of the Code, shall be made by motion. (a) Prima Facie Evidence of Debt. The motion or its attachments must offer prima facie proof of the existence of the debt in the form of either: (1) reference in the motion to a properly filed proof of claim executed and filed in accordance with Fed. R. Bankr. P. 3001 and, if applicable, LBR 3001-1; or (2) an affidavit or a declaration in compliance with 28 U.S.C. § 1746 setting forth proof of the existence of the debt. (b) Prima Facie Evidence of Value of Collateral.

If the value of the collateral is at issue, the Motion or its attachments must offer prima facie proof of the value of the collateral in the form of an affidavit or a declaration in compliance with 28 U.S.C. § 1746 executed by a person qualified to value the collateral; provided, however, if the collateral is a motor vehicle, subparagraph (d) shall apply to determine the value of the collateral. (c) Real Estate. If the motion relates to real estate, the moving party shall attach to such motion a copy of the note(s), mortgage(s) or other evidence of security interests upon which the moving party bases its secured claim; provided, however, that a Motion does not need to attach such evidence if it refers to a proof of claim executed and filed in accordance with Fed. R. Bankr. P. 3001 and, if applicable, LBR 3001-1. (d) Motor Vehicle.

If the motion relates to a motor vehicle, it shall set forth the value of such motor vehicle based upon a valuation from any recognized used motor vehicle guide. The motion shall also state the balance claimed due by the moving party which must be verified by affidavit or declaration. To establish the moving party's secured interest in the motor vehicle, the motion must attach a copy of any document recognized as proper perfection under applicable state law; provided, however, that it does not need to attach such evidence if it refers to a proof of claim executed and filed in accordance with Fed. R. Bankr. P. 3001 that contains such. 27 (e) Personal Property.

If the motion relates to personal property other than a motor vehicle, the moving party shall set forth in such motion a description of the personal property, the estimated value or the appraised value of the personal property, and the balance claimed due for the moving party's secured claim, which must be verified by affidavit or declaration. The moving party shall also attach a copy of the security agreement and/or retail installment contract and, if applicable, copies of financing statements bearing notations of filing with the appropriate public recording agency and indicating proper perfection of such liens under applicable state law. (f) Commencement or Continuation of Judicial Action. If the motion seeks authority to commence or continue a judicial, administrative or other action against the debtor that was or could have been commenced before the commencement of the case, the motion should describe the claim or cause of action or, if commenced prior to the commencement of the case, attach a copy of a pleading containing such description; provided, however, a motion does not need to attach such documentation if it refers to a proof of claim executed and filed in accordance with Fed. R. Bankr. P. 3001 that contains such documentation.

(g) Parties for Service of Notice of Hearing and Motion. The moving party must serve a copy of the notice of hearing and a copy of the motion on: (1) all parties required by Fed. R. Bankr. P. 4001(a)(1); (2) the debtor, and, if the debtor is represented by an attorney, the attorney; (3) any applicable codebtor when relief is sought from the codebtor stay; (4) any party listed on Official Form 206D (Schedule D: Creditors Who Have Claims Secured By Property) filed in the case as holding a lien on the property at issue in the motion, when relief is sought from the stay of an act against property; (5) the United States Trustee; and (6) all parties who filed a request for notices with the Bankruptcy Clerk. (h) Required Notice and Response Deadline. The notice of hearing must comply with Local Bankruptcy Rule 9013-1(b)(1)–(3).

If the motion relates to property, the notice of hearing shall provide a concise description of the property. The notice shall inform all parties that a hearing will be 28 held on the motion IF AND ONLY IF an answer, objection or opposition to the motion is filed with the Bankruptcy Clerk’s office and mailed to the moving party’s counsel at least seventeen (17) days from the mailing date shown on the moving party’s certificate of mailing of the motion to lift the stay. This seventeen (17) day period is calculated by using fourteen (14) days from Fed. R. Bankr. P. 4001, plus three (3) days from Fed. R. Bankr. P. 9006(f). The date to answer, object or oppose shall be clearly and succinctly stated in bold type on the notice and shall be referred to as the RESPONSE DEADLINE.

The hearing date assigned by the Bankruptcy Clerk shall be no less than seven (7) calendar days after the RESPONSE DEADLINE. In addition to any information required by Local Bankruptcy Rule 9013-1(b)(1)-(3), the notice of hearing must contain a statement in substantially the following form: A hearing to consider the [title of motion] will be held on [Month] [Day], [Year] at ___ o’clock, __. m. at [identify courthouse address, floor and courtroom number, if applicable], IF AND ONLY IF, an objection or response is filed on or before the response deadline noted herein. The motion seeks [describe with such particularity as appropriate to fairly apprise others of the relief sought, including if applicable, a concise description of the property at issue]. No hearing will be conducted hereon unless a written response is filed with the Clerk of the United States Bankruptcy Court at [address of Clerk’s office] before the close of business on [Month] [Day], [Year] (the “Response Deadline”) which is a date at least seven (7) days before the hearing date.

A copy of the response should be served upon counsel for the moving party by the Response Deadline. The Response Deadline is at least seventeen (17) days from the date of service hereof. IF NO OBJECTION OR RESPONSE IS TIMELY FILED, THE RELIEF REQUESTED SHALL BE DEEMED TO BE UNOPPOSED, AND THE COURT MAY ENTER AN ORDER GRANTING THE RELIEF SOUGHT OR THE NOTICED ACTION MAY BE TAKEN. (i) Relief from the Stay by Default.

If no objection or response is timely filed, the requested relief will be deemed unopposed, and the court may enter an order granting the relief sought. However, even in the absence of a timely objection, the court may deny the requested relief if the moving party fails to establish entitlement to such relief. (j) Extension of Time; Late-filed Responses; Certificate of Conference Required. The court may, for cause, extend or reduce the time for sending notices, filing responses or setting a hearing.

Before filing a motion seeking authority to file a 29 request for an extension of time or an untimely response to a Motion to Lift the Stay, an attorney for the moving party shall confer with an attorney for each party affected by the requested relief to determine whether the motion is opposed. The attorney for the moving party shall file a certificate of conference to evidence compliance with Local Bankruptcy Rule 9013-1(f). (k) Response. Any response to a motion for relief from stay shall state with particularity the reasons that the motion is opposed and, if appropriate, make a specific offer of adequate protection.

The response must state, in plain terms, the specific factual or legal basis for denying the relief sought in the motion. Failure to identify a sufficient basis is cause for the court to disregard the response. (l) Motion for Relief from Co-Debtor Stay. In addition to the notice provisions outlined in this rule, the moving party shall specifically certify that the co-debtor against whom relief is sought has been properly served with notice according to Fed. R. Bankr. P. 7004.

(m) Hearing Not Timely Proposed. If the moving party notices a hearing on a Motion for Relief from the Automatic Stay for a date more than thirty (30) days from the date the motion was filed or, in the case of a co-debtor stay, more than twenty (20) days from the date the motion was filed, the party shall be deemed to have waived the automatic termination of the stay under 11 U.S.C. § 362(e) and/or § 1301(d).