PART IV. THE DEBTOR: DUTIES AND BENEFITS

4001-1 Automatic Stay - Relief From
4002-1 Debtor - Duties
4002-2 Change of Address and Telephone Number of Pro Se Debtor
4003-1 Exemptions
4003-2 Lien Avoidance
4004-2 Objections to Discharge
4004-3 Chapter 13 Debtor's Certified Motion for Discharge
4008-1 Reaffirmation Agreements

 

Rule 4001-1 AUTOMATIC STAY - RELIEF FROM

(a)   Consent Orders

An order stipulating to relief from the automatic stay may be entered without hearing under the circumstances set out in this subsection.  A motion seeking relief from the automatic stay must have been filed.  The motion or order must show the assent of the affected parties.  The clerk shall waive the filing fee for the motion if assent is shown at the time of the filing of the motion.
In a case under chapter 7, 12, or 13, the proposed order must show the assent of the debtor or the debtor's attorney and the trustee.
In a case under chapter 11, the proposed order must show the assent of the debtor or debtor's attorney, the attorney of any official creditors' committee, or if none, the chairperson(s) of the committee(s), and the United States trustee.  If no committee has been appointed, movant may not obtain relief under this subsection.
Such order must be limited to granting relief from the automatic stay.  It shall not recognize for any purpose other than relief from the stay the validity of any lien, title to any property or the validity or amount of any indebtedness.  Nor shall the proposed order waive or otherwise compromise any claims of the estate against the movant.

(b)

Contents of a Motion for Relief Without Consent
(1)
The motion must contain a short plain statement of the alleged facts that are grounds for relief; a mere statement of the statutory grounds for relief is insufficient.
(2)
If cause other than lack of adequate protection is alleged, the motion must explain the cause.
(3)
If lack of equity in property is an issue, the motion must state the movant's estimation of value and a brief statement as to the basis for the estimate.  The estimation may not state only that it is made "on information and belief."
(4)
If the motion seeks relief from the stay to foreclose a security agreement or mortgage affecting property of the estate, copies of the following must be attached to the motion: (A) all notes or other obligations secured by the property; and (B) all security documents involved, including evidence of perfection.
If security documents are particularly voluminous, they need not be attached to the motion, provided there is a statement in the motion to that effect, and the documents are exchanged with counsel for the opposing parties at least 14 days prior to the hearing.  See Local Rule 9070-1.
Attachment of the documents to the motion shall be considered compliance with Local Rule 9070-1 regarding exchanging exhibits if the movant gives notice in the motion or by way of separate document that the movant is relying upon the documents attached in compliance with Local Rule 9070-1.  Failure to object timely to the introduction of the attachments into evidence shall result in their admission pursuant to Local Rule 9070-1.  Notwithstanding reliance on the attachment of the documents, movant shall offer separate copies of the attachments, marked as exhibits, at any final hearing on the motion for relief.
(5)
The motion must include a notice that any party opposing the motion must timely file and serve an answer at least 7 days prior to the date set for the preliminary hearing on the motion.

(c)

Answer Required for Resisted Motions
At the preliminary hearing, the court may refuse to hear an objection to a motion for relief or it may grant the motion by default unless an answer or other objection has been filed and served on the movant at least 7 days before the date set for the preliminary hearing.  An answer contesting the requested relief must contain the following:
(1)
If valuation of property is at issue, the answer must state the respondent's estimate of value and give a brief statement as to the basis for the estimate.  Local Rule 3012-1 regarding valuation hearings shall be applicable to the valuation dispute at any final in-court hearing on the motion for relief.  The estimation of value may not state only that it is made "on information and belief."
(2)
If the respondent intends to dispute the existence, validity, execution, effect or any other aspect of the notes or security documents, those objections must be stated with particularity.
(3)
If the respondent proposes to offer adequate protection, it must state with particularity the adequate protection it offers to provide.  If periodic payments are proposed, the specific amounts and intervals must be stated or respondent must set forth a formula which permits ready calculation of the amounts of the payments.  If substitute liens are proposed, respondent must describe the proposed collateral and its estimated value.  Respondent must disclose any existing liens on substitute collateral and the value of the liens.

(d)

Section 362(e) Time Requirements
For purposes of the time requirements set forth in 11 U.S.C. § 362(e), the request for relief shall be considered made on the filing date of the motion or on the date on which required service was made or on the date the motion's filing fee was paid, whichever is later.  If in the motion for relief, the movant requests any additional relief other than a request for adequate protection or prohibition of the use of collateral, the movant will be deemed to have waived the time requirements of § 362(e).

(e)

Relief from Stay by Default
A default order granting the motion for relief from stay for failure to file a timely answer will not be granted prior to the time and date set for the preliminary hearing.  However, if a party against whom relief is sought has not filed an answer by the time of the preliminary hearing, the preliminary hearing will not go forward and, if the preliminary hearing was set as a telephone hearing, it will not be necessary for movant's attorney to contact the opposing attorney or any unrepresented party.

(f)

Procedure for Contested Motions
(1)Telephonic Hearing
If any entity has filed an answer or objection to the motion, the preliminary hearing may be scheduled as a telephonic hearing.  The attorney for the movant shall be responsible for arranging the telephonic conference.  The movant shall include in the conference call any entity that has served an answer, objection, request to be heard, or other response to the motion, whether the response is timely or untimely, so long as the response has been received by movant's attorney at any time, by any method of delivery, prior to the time and date of the preliminary hearing.  Movant's attorney need not include in the conference call any entity filing a response indicating consent to the relief and a desire not to be included in the conference.
(2)Preliminary Hearing
At the preliminary hearing, the following matters will be considered:
(A)
the issues in dispute and whether there is a reasonable likelihood that the entity opposing relief will prevail at a final hearing;
(B)
if the value of collateral is in dispute, the method to be used to value the collateral;
(C)
the time necessary for the final hearing;
(D)
the setting of the final hearing;
(E)
waiver of the timing requirements of § 362(e); and
(F)
such other matters as may be appropriate.

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Rule 4002-1     DEBTOR - DUTIES 

Delinquent Tax Returns -- Chapters 11, 12, or 13  

If, on the petition date, a debtor in chapter 11, 12, or 13 has failed to file timely a tax return which was due pre-petition, debtor must file any such delinquent returns within 30 days of the petition date, unless an extension of time for filing has been granted by the court after notice and hearing.  Failure to file timely a delinquent tax return under this rule may be grounds for denial of confirmation and for dismissal of the case.

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Rule 4002-2     CHANGE OF ADDRESS AND TELEPHONE NUMBER OF PRO SE DEBTOR

A pro se debtor must file a statement of any change in the debtor's address or telephone number.  The debtor must serve a copy of the statement on the United States trustee and trustee.

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Rule 4003-1     EXEMPTIONS

(a)

An objection to exemption must state the grounds therefore.  An entity filing an objection to a claim of exemption must serve a copy of the objection together with a notice of the debtor's right to file a resistance to the objection upon the debtor, debtor's attorney, the trustee (if the trustee is not the objector) and the United States trustee, and shall promptly thereafter file a proof of service.  The notice must advise the debtor that he or she will have 21 days in which to file a resistance with the clerk and to make required service of the resistance.  The notice must also advise that if a timely resistance is not filed, an order will enter sustaining the objection to the claim of exemption.  Any resistance must state the basis of the resistance.

(b)

If the debtor or dependent has not filed a timely resistance to the objection, the objector shall submit a proposed order sustaining the objection.  A submission of such order shall constitute a certification by the objector or its attorney that the objector has not been served with a timely filed resistance and that it is now appropriate for the court to enter an order sustaining the objection.

(c)

Upon timely motion, the trustee or a creditor may obtain an extension of up to 30 days of the time for objecting to a debtor's claim of exemption.  A motion for further extension must state the grounds therefore and may be granted only during the period of the initial extension and only after notice and hearing.

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Rule 4003-2 LIEN AVOIDANCE

(a)

A lien avoidance motion filed pursuant to 11 U.S.C. § 522(f)  must contain:
(1)
the factual basis for the motion.  If the lien sought to be avoided is a judicial lien, the motion must describe the judicial proceeding in which the lien arose.
(2)
a complete description of the property which is subject to the motion.  If the property is real property, the motion must contain the property's legal description.

(b)

Movant must serve a copy of the motion together with a notice of the right to object to the motion upon all affected creditors, the trustee and the United States trustee, and shall promptly file a proof of service.  The notice must advise the parties against whom relief is sought that they have 21 days (35 days if the lienholder is the United States or an officer or agency thereof) in which to file an objection to the lien avoidance motion with the clerk and to serve a copy upon the movant.  The notice also shall advise the affected party that if a timely objection is not filed, an order may enter granting the relief requested.  Service upon a creditor must include both the creditor and the creditor's attorney, if an appearance or pleading has been filed in the case by the attorney for the creditor.

(c)

If no creditor has filed timely objection, movant's attorney shall submit a proposed order granting the motion to avoid lien.  The submission of such an order shall constitute a certification by movant's attorney that the movant's attorney has not been served with timely filed objections and it is now appropriate for the court to enter an order granting the motion to avoid lien.  The proposed order must describe the property which is the subject of the order and if the property is real property, the proposed order must contain its legal description.  If the lien to be avoided is a judicial lien, the proposed order must describe the judicial action in which the lien arose.

(d)

A debtor moving to avoid a judicial lien against his or her homestead may join with the motion an alternative request for a determination that the creditor's lien has not attached to the homestead.

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Rule 4004-2 OBJECTIONS TO DISCHARGE

(a)

Motions to Dismiss
A motion by plaintiff to dismiss an adversary proceeding objecting to the debtor's discharge must be accompanied by an affidavit signed by either the movant or movant's attorney which sets forth all details of any settlement agreement as well as the consideration, if any, to be given in connection with the proposed dismissal of the complaint.

(b)

Service of Motion to Dismiss
The motion and affidavit must be filed with the clerk, but the movant need not serve the motion until directed by the court.

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Rule 4004-3 CHAPTER 13 DEBTOR'S CERTIFIED MOTION FOR DISCHARGE

(a)

Any Debtor seeking entry of a discharge under 11 U.S.C. § 1328(a) in a case filed on or after April 20, 2005, shall file the local form "Debtor's Certified Motion for Discharge and Notice of Deadline to Object" (IANB1328) upon completion of all payments under the plan.

(b)

Any Joint Debtor seeking entry of a discharge under 11 U.S.C. § 1328(a) in a case filed on or after April 20, 2005, shall file a his/her own "Debtor's Certified Motion for Discharge and Notice of Deadline to Object" (IANB1328).

(c)

Procedures for filing, noticing and objecting to a "Debtor's Certified Motion for Discharge and Notice of Deadline to Object" shall comport with the Administrative Procedures for the Request and Issuance of Discharge in a Chapter 13 Case, as approved by this court.

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Rule 4008-1 REAFFIRMATION AGREEMENT

(a)

All reaffirmation agreements shall utilize the Director's Form B-240, Reaffirmation Agreement.

(b)

Reaffirmation agreements containing the following deficiencies shall be deemed incomplete and a hearing notice shall issue, outlining the deficiencies and setting the matter for hearing at least 21 days after the date of the notice:
(1)
Improper Form or Format (Use of a form/format other than Director's Form B-240);
(2)
Lack of requisite signatures on form;
(3)
Filed without Motion for Approval of Reaffirmation Agreement (Pro Se filers only);
(4)
Existence of presumption of undue hardship (applies to all reaffirmation agreements with the exception of those filed by credit unions or reaffirmation agreements involving real property); or
(5)
Incomplete Attorney Declaration.

(c)

The Clerk of Court shall issue a notice canceling a hearing set pursuant to paragraphs (b)(1), (b)(2) and (b)(3) of this rule, only upon the curing of deficiencies to this Court's satisfaction within 14 days of the date of the original notice setting hearing. 

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