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Rule 4001-2

Motion for Entry of Order Confirming Termination or Absence of Stay

(a) Form.  A motion or stipulation for entry of an order confirming termination or absence of the stay shall be in the form as required by Local Rule 9004-1.  The motion or stipulation and notice provided for in this Local Rule together shall constitute a request for entry of an order confirming termination or absence of the automatic stay and such request shall be deemed to have been made after completion of service of the motion or stipulation and notice.

(b) Service.

(1) Motions. A motion or stipulation for entry of an order confirming termination or absence of the stay, a proposed form of order, and the notice required by subsection (c) shall be promptly served by movant upon:

(A) The debtor;

(B) The debtor's counsel;

(C) The case trustee, if any; and

(D) In a chapter 11 case, the twenty largest unsecured creditors listed by the debtor, or the unsecured creditors' committee and counsel for any committee appointed under the Code.

(2) Stipulations.  A stipulation for entry of an order confirming termination or absence of the stay entered into by the parties before the filing of a motion, a proposed form of order, and the notice required by subsection (c) shall be promptly served by movant upon:

(A) The debtor;

(B) The debtor's counsel;

(C) The case trustee, if any; and

(D) In a chapter 11 case, the twenty largest unsecured creditors listed by the debtor, or the unsecured creditors' committee and counsel for any committee appointed under the Code.

(3) Additional Notice.  The notice required by subsection (c) of this rule shall be promptly served by movant upon:

(A) Any other party known to movant to claim an interest in the property that is the subject of the motion; and

(B) Any other person or entity required by law or the court.

(4) Stipulated Order.

Upon proper notice, the movant may upload a Stipulated Order confirming the termination or absence of the automatic stay without the necessity of filing a motion and without incurring a filing fee should the parties resolve the matter without court action.

(c) Notice of Motion or Stipulation.  Contemporaneously with the motion or stipulation, movant will serve and file a form of notice providing the details of the motion or stipulation and that if no objection is served on movant and filed within 14 days of service, the motion or stipulation may be approved by the court.

(d) Contents of Motion or Stipulation.  Any motion relating to a separate case shall contain the citation to each prior case and jurisdiction of each case.

(e) Entry of Order.  If an objection to the motion or stipulation is not timely filed and served, the proposed form of order may be lodged and served with a certification of service and of no objection, which certification may not be made until the expiration of three business days after the last day for objection.  If the court determines that the movant filed improperly or in bad faith a certification of no objection, the movant may be subject to sanctions.

(f) Form of Order.  The order lodged with the court shall not grant relief greater than that requested in the motion or stipulation.

(g) Objection.  An objection to the motion or stipulation for entry of an order confirming termination or absence of the automatic stay shall be supported by specific facts. The objection shall be supported by legible copies of all documents that the objector contends supports the objection.

(h) Procedure Upon Objection. 

(1) If a timely objection is filed and served, the court shall issue an order establishing the procedures for adjudication of the motion, including the procedures for the movant to obtain and notice a date, time, and place for a preliminary hearing in the matter or setting a preliminary or final hearing.

(2) At least three days prior to the preliminary hearing, the parties must file and serve declarations or affidavits to support their respective positions.  Supporting documentation may include, but is not limited to, a payment history and proof of payment.  Failure to file these declarations may result in the court granting or denying the relief requested.  If there is a pending foreclosure or trustee sale, and if not previously disclosed in the motion, the movant’s declaration must disclose the date, time and place of the sale.

(3) At the preliminary hearing, the parties must present a prima facie case on any issue for which that party bears the burden of proof.  An affidavit or declaration, along with supporting documentation, may be utilized for such purposes.

(i) Separate Litigation File.  Upon request or sua sponte, the court may order the clerk to establish a separate contested matter litigation file.


Committee Notes 2009: Time deadlines have been amended to be consistent with amendments to the Federal Rules of Bankruptcy Procedure, effective December 1, 2009.

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