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Relief From Automatic Stay

Local Rule Number: 
Rule 4001-1
4000 Series

(A)     Notice Requirements.  In cases other than chapter 11 cases, notice of any motion seeking relief from the automatic stay, pursuant to 11 U.S.C. §362(d), shall be sufficient if served on the debtor, the debtor’s attorney, the trustee, and any person known to the moving party to claim a legal or equitable interest in any property which may be the subject of the motion.  In a chapter 11 case, when applicable, service must be in accordance with Local Rule 2002-1(H), otherwise, the notice must be served on the debtor, the debtor’s attorney, the trustee, if any, the U.S. Trustee, the members of the creditors’ committee or the committee’s attorney and any other person known to the moving party to claim a legal or equitable interest in any property which may be the subject of the motion; however, if no creditors’ committee has been formed then the notice shall be served on the creditors holding the 7 largest unsecured claims according to the debtor’s list of 20 largest creditors filed in the case.

(B)     Contents of Motion.  Motions for relief from the automatic stay must comply with this court’s “Guidelines for Motions for Relief From the Automatic Stay”.

(C)     Requests for Relief on Negative Notice.  Subject to the limitation in chapter 7 and chapter 13 cases set forth below, creditors in chapter 7, 11, 12, or 13 cases, in which the debtor is represented by an attorney, may seek relief from stay on negative notice if the motion meets the requirements of the Guidelines referred to in subdivision (B) above, is served in accordance with subdivision (A) above, and includes above the preamble and below the title of the motion the following bulletin in bold print so as to make it more prominent than the remainder of the text:

Any interested party who fails to file and serve a written response to this motion within 14 days after the date of service stated in this motion, pursuant to Local Rule 4001-1(C), be deemed to have consented to the entry of an order granting the relief requested in the motion.

(1)     Chapter 7.  Negative notice under this rule is not available for a motion for relief from stay filed (a) prior to the commencement of the meeting of creditors in the case. ; (b) in any chapter 7 case in which the debtor is not represented by an attorney.

(2)     Chapter 13. Except in any chapter 13 case in which the debtor is not represented by an attorney, a motion seeking relief from the automatic stay may be filed on negative notice in a chapter 13 case in which the debtor’s chapter 13 plan (a) provides for the surrender of collateral to the movant, (b) provides for the movant’s claim to be paid by the debtor directly to the movant rather than through the chapter 13 trustee’s office, or (c) does not provide for the payment of the movant’s claim.  The movant must include a statement in the motion specifying one of the foregoing reasons as the basis for filing the motion on negative notice.  Any such motion is exempt from the District’s guideline requirement that an affidavit of indebtedness and indebtedness worksheet be affixed to the motion.

(a)     Pre-Confirmation. Prior to confirmation of a chapter 13 plan, a creditor may file a motion for relief from the automatic stay on negative notice (serving all interested parties), in the manner outlined under this rule.

(b)     Post-Confirmation (Ex Parte). After confirmation of a chapter 13 plan, a creditor may file a motion (serving all interested parties) seeking an order confirming that the automatic stay is not in effect. Movant may file such motion on an ex parte basis, and the court may enter an order granting the motion without a hearing. 

(c)     Pro Se Debtors.  Negative notice under this rule is not available for a motion for relief from the automatic stay or seeking confirmation that the automatic stay is not in effect filed in any chapter 13 case in which the debtor is not represented by an attorney.

[Comment:  Relief from the automatic stay cannot be obtained on negative notice in any chapter – under any circumstance – where the debtor is not represented by an attorney.  This amendment also creates an additional exception under Section (D) of the Southern District of Florida’s Guidelines for Motions for Relief from the Automatic Stay, by modifying the required exhibits.]

☞ 2020 Amendment:  Local Rule 4001-1(C) expands negative notice for motions for relief from the automatic stay in Chapter 13 cases where the debtor has proposed a chapter 13 plan that provides for surrender of creditor’s collateral, treats creditor’s collateral outside the plan, or fails to provide treatment of creditor’s collateral through the Chapter 13 plan.  For confirmed chapter 13 plans, the creditor may file a motion requesting entry of an order confirming that no automatic stay is in place on an ex parte basis. The 2020 Amendment also clarifies that relief from stay cannot be obtained on negative notice if the debtor is not represented by an attorney).

(D)     Contested Motions; Response.  A response which objects to the granting of the requested relief shall identify the motion, the movant’s attorney, and the motion’s service date, and shall set forth a short and plain statement of the facts countervailing the motion, including:

(1)        a statement of indebtedness, if the amount of debt is in dispute;

(2)        a specific statement of any objection to the authenticity, accuracy or completeness of the moving party’s exhibits; and

(3)        a statement of how the responding party proposes to adequately protect the moving party’s security interest, if it is the debtor who objected and adequate protection may be necessary; however, the objection of a chapter 7 trustee prior to the §341 meeting need state only that the §341 meeting has not yet been held and that the trustee lacks the necessary information to adequately respond further.

The response must be served on the movant’s attorney and on the same parties on whom the motion was served.  Notice, pursuant to Local Rule 9073-1(B), shall be served on the same parties on whom the motion was served.

(E)     Hearing.  An evidentiary hearing scheduled on a motion for relief from the automatic stay will be a final evidentiary hearing unless the court otherwise notifies the parties in advance.  If the court designates the initial hearing as a non-evidentiary hearing, the hearing shall be restricted to the pleadings, affidavits and papers of record and to the arguments of attorneys.

(F)     Cooperation of Parties in Preparation for Hearing.  At least two business days prior to an evidentiary hearing, the parties or their attorneys must meet in an effort to identify those specific issues of fact or law genuinely in dispute, to exchange copies of appraisals and other exhibits and the names and addresses of witnesses the parties intend to offer at the hearing, and to discuss the possibilities of settlement.  At the commencement of the hearing, the parties shall present an exhibit register in accordance with Local Rule 9070-1, and shall announce any stipulations of fact or law.

(G)     Discovery.  A party may take deposition testimony of any party or witness and may request the production of documents or things and inspection of land, upon actual delivery of at least 14 days’ notice, and the minimum time requirements of Bankruptcy Rules 7030 and 7034 shall not apply.  The parties shall make their appraisers or other experts and fact witnesses, if any, available for deposition, without the need for subpoena, at least two business days before an evidentiary hearing, and the parties are expected to cooperate in exchanging information and documents without the need for formal discovery procedures.  In extraordinary circumstances the court, upon motion of a party but without notice or hearing, may authorize the use of interrogatories or other discovery procedures, and may shorten the notice requirements of any applicable rule.

(H)     Continuances.  Continuances are governed by Local Rule 5071-1.  A party seeking relief from the automatic stay who moves for, or consents to, continuance of the hearing waives the right to enforce the 30 or 60 day rules contained in 11 U.S.C. §362(e), and the 30 or 60 day hearing requirements shall be deemed extended until the court’s ruling at the rescheduled hearing.

[Comment: See also 28 U.S.C. §1930 (clerk’s fee required for motions for stay relief), Bankruptcy Rule 9014 (contested matters governed by general rules of discovery) and Local Rules 5071-1 (continuances), 7026-1 (discovery), and the court’s “Guidelines for Preparing, Submitting, and Serving Orders”.]

(I)     Negotiations Related to Potential Modification of Loan; Automatic Stay Not Applicable. The automatic stay is not applicable, and it shall not be necessary to seek relief from the automatic stay, for a lender with a claim secured by property of the estate to negotiate with a pro se debtor or with debtor’s counsel regarding potential modification of the loan.

(J)     Tax Certificates; Automatic Stay Not Applicable. The automatic stay under 11 U.S.C. § 362(a) is not applicable to and does not prohibit Florida Tax Collectors from selling in the ordinary course tax certificates secured by property owned by a debtor in bankruptcy or a bankruptcy estate. This rule does not permit the sale of tax deeds, unless the automatic stay is terminated by operation of law or is modified by an order of the court.

☞ 2020 Amendment: Local Rule 4001-1 includes new Section (J) which clarifies that the automatic stay does not prohibit Florida Tax Collectors from selling tax certificates secured by property owned by a debtor’s bankruptcy estate. However, this rule does not apply to the sale of tax deeds. 

(K)     Notice to Florida State Court.  If the court enters an order granting relief from the automatic stay pertaining to an action pending in a Florida state court, the movant shall include the clerk of the applicable Florida state court as an interested party on the certificate of service of the order granting relief from the automatic stay.  The certificate of service shall identify the clerk of court by name and county and shall list the case number of the state court action immediately below the name of the applicable state court clerk of court.   

☞ 2020 Amendment: Local Rule 4001-1 includes new Section (K) which requires a stay relief order to be served on a state court clerk if subject property involved in a foreclosure proceeding.

(L)     Motions to Extend or Impose the Automatic Stay.  A motion to extend the automatic stay under 11 U.S.C. § 362(c)(3) or to impose the automatic stay under 11 U.S.C. § 362(c)(4) must  be accompanied by a declaration or affidavit by the debtor in support of the motion describing the facts upon which the debtor is relying to rebut the presumption that the case was not filed in good faith, or such motion must contain a description of such facts and be verified by the debtor in accordance with 28 U.S.C. §1746.

☞ 2020 Amendment: Local Rule 4001-1 includes new Section (L) which requires the debtor or debtor’s counsel – seeking to extend the automatic stay under §362(c)(3) or impose the automatic stay under §362(c)(4) – to file an affidavit or declaration in support of a motion seeking such relief describing the facts upon which the debtor is relying to rebut the presumption that the case was not filed in good faith.