Relief From The Automatic Stay, How Do Creditors File This?
A) General Rule - In many situations a creditor must obtain a court order granting relief from the Automatic Stay to have the right to take action against a debtor or property of the estate. This is true regardless of what type of action a creditor has already filed against the debtor in another court, or if the creditor has started (but not completed) taking action to repossess property of the debtor. If a creditor does not obtain a court order, that creditor could be sanctioned (i.e., fined), and any action taken by that creditor may be void.
B) Filing a Motion and Setting a Hearing Date -- A Motion for Relief from the Automatic Stay is commenced by filing the appropriate motion and setting the motion for a hearing date. To file a Motion for Relief from the Automatic Stay, the Local Bankruptcy Rules require parties to use mandatory forms. Click here for a list of F 4001-1M form motions. There are several different types of mandatory form motions. A creditor will pick the appropriate mandatory form motion based upon what the creditor is asking the court for permission to do (i.e., proceed against real property, proceed against personal property, continue with an unlawful detainer lawsuit in Superior Court, proceed with a state court lawsuit, etc.). Each motion must demonstrate “cause” for lifting the Automatic Stay, and shall be supported by admissible evidence. For example, if a creditor asserts a secured claim, the motion must contain admissible documents that assert a valid security interest and all documents that support an assertion of lack of adequate protection or a lack of equity in the relevant property.
C) Filing Fee and Number of Copies - A Motion for Relief from the Automatic Stay requires a filing fee, see Fee Shedule. If the motion is filed in person at the intake window of the clerk’s office, a creditor must file one copy with the court (original and one extra copy). If a creditor also wants to leave with a “Filed” stamped copy of the motion, the creditor must bring a second copy. For all motions filed electronically via CM/ECF, the creditor must promptly deliver one copy of the motion to the judge’s chambers by mail or personal delivery.
D) Serving the Motion and Notice of Motion - Remember to serve all parties required to be served by the Local Bankruptcy Rules and to complete the service within the time period required by those rules. Consult the CM/ECF Administrative Procedures regarding electronic notice and service.