Free F4001-1M-IS - California

Attorney or Party Name, Address, Telephone & FAX Numbers, and California State Bar Number

FOR COURT USE ONLY

G Individual appearing without counsel G Attorney for:
UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA
In re:
CHAPTER: CASE NO.: DATE: TIME: CTRM: FLOOR:

Debtor(s).

NOTICE OF MOTION AND MOTION IN INDIVIDUAL CASE FOR ORDER IMPOSING A STAY OR CONTINUING THE AUTOMATIC STAY AS THE COURT DEEMS APPROPRIATE (with supporting declarations) (MOVANT: )
1. NOTICE IS HEREBY GIVEN to ____________________________("Secured Creditor/Lessor"),Trustee (if any), and affected creditors("Responding Parties"), their attorneys (if any), and other interested parties that on the above date and time and in the indicated courtroom, Movant in the above-captioned matter will move this Court for an Order imposing a stay or continuing the automatic stay as to certain creditors and actions described in the Motion on the grounds set forth in the attached Motion. 2. Hearing Location:

G G G

255 East Temple Street, Los Angeles 21041 Burbank Boulevard, Woodland Hills 3420 Twelfth Street, Riverside

G G

411 West Fourth Street, Santa Ana 1415 State Street, Santa Barbara

3. a.

G G
(1) (2) (3)

This Motion is being heard on REGULAR NOTICE pursuant to Local Bankruptcy Rule 9013-1. If you wish to oppose this Motion, you must file a written response to this Motion with the Bankruptcy Court and serve a copy of it upon the Movant's attorney (or upon Movant, if the Motion was filed by an unrepresented individual) at the address set forth above no less than 14 days before the above hearing and appear at the hearing of this Motion. This Motion is being heard on SHORTENED TIME. If you wish to oppose this Motion, you must appear at the hearing. Any written response or evidence must be filed and served:

b.

G at the hearing G at least court days before the hearing. G A Motion for Order Shortening Time was not required (according to the calendaring procedures of the assigned judge). G A Motion for Order Shortening Time was filed per Local Bankruptcy Rule 9075-1(b) and was granted by the Court and
such motion and order have been or are being served upon the appropriate creditor(s) and trustee, if any.

G

A Motion for Order Shortening Time has been filed and remains pending. Once the Court has ruled on that Motion, you will be served with another notice or an order that will specify the date, time and place of the hearing on the attached Motion and the deadline for filing and serving a written opposition to the Motion.

4. You may contact the Bankruptcy Clerk's Office to obtain a copy of an approved court form for use in preparing your response (Optional Court Form F 4001-1M.RES), or you may prepare your response using the format required by Local Bankruptcy Rule 9004-1 and the Court Manual.

This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. January 2009

F 4001-1M.IS

Motion for Order Imposing a Stay or Continuing the Automatic Stay - Page 2 of In re (SHORT TITLE) Debtor(s). CHAPTER: CASE NO.:

F 4001-1M.IS

5. If you fail to file a written response to the Motion or fail to appear at the hearing, the Court may treat such failure as a waiver of your right to oppose the Motion and may grant the requested relief.

Dated:

Print Law Firm Name (if applicable)

Print Name of Individual Movant or Attorney for Movant

Signature of Individual Movant or Attorney for Movant

This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. January 2009

F 4001-1M.IS

Motion for Order Imposing a Stay or Continuing the Automatic Stay - Page 3 of In re (SHORT TITLE) Debtor(s). CHAPTER: CASE NO.:

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MOTION FOR ORDER IMPOSING A STAY OR CONTINUING THE AUTOMATIC STAY AS THE COURT DEEMS APPROPRIATE (MOVANT: )
1. The Property or Debt at Issue: a.

G

Movant moves for an order imposing a stay with respect to the following property ("this Property" or "the Property") :

G G G G

Vehicle (describe year, manufacturer, type, and model): Vehicle Identification Number: Location of vehicle (if known): Equipment (describe manufacturer, type, and characteristics): Serial number(s): Location (if known): Other Personal Property (describe type, identifying information, and location): Real Property Street Address: Apt./Suite No.: City,State, Zip Code: Legal description or document recording number(include county of recording): 9 See attached continuation page

The following creditor(s) have a security interest or unexpired lease in this Property (give full name and address of creditor)_________________________________________________________to secure the sum of approximately $_____________now owed. ("Secured Creditor/Lessor"). Additional creditors who are the subject of this motion, and their respective claims, addresses and collateral, are described on the continuation sheets attached. (Attach additional sheets as necessary) b. c. d. e. 2.

G G G G G G G

Movant moves for an order imposing a stay with respect to any and all actions against the Debtor and the estate taken concerning the debt/lease owed to the Secured Creditors/Lessors as described in this motion; and/or Movant moves for an order imposing a stay as to all creditors. Movant moves for an order continuing the automatic stay with respect to any and all actions against the Debtor and the estate taken concerning the debt/lease owed to the Secured Creditor/Lessor; and/or Movant moves for an order continuing the automatic stay as to all creditors.

Case History: a. b. c. A voluntary G An involuntary petition concerning an individual[s] under Chapter was filed concerning the present case on (specify date): An Order of Conversion to Chapter was entered on (specify date): Plan was confirmed on (specify date):

G

7

G

11

G

12

G

13

G

7

G

11

G

12

G

13

(Continued on next page)

This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. January 2009

F 4001-1M.IS

Motion for Order Imposing a Stay or Continuing the Automatic Stay - Page 4 of In re (SHORT TITLE) Debtor(s). d. CHAPTER: CASE NO.:

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G

Other bankruptcy cases filed by or against this Debtor have been pending within the past year preceding the petition date in this case. These cases and the reasons for dismissal are: 1. Case Name: Case Number: Date Filed: Relief from stay re this property Reason for dismissal: 2. Case Name: Case Number: Date Filed: Relief from stay re this property Reason for dismissal: 9 See attached continuation page

Chapter: Date Dismissed:

G

was

G

was not granted

Chapter: Date Dismissed:

G

was

G

was not granted

e.

G G G

As of the date of this motion the Debtor G has G has not filed a statement of intentions regarding this Property as required under 11 U.S.C.§521(a)(2). If a statement of intentions has been filed, Debtor G has G has not performed as promised therein.

f.

The first date set for the meeting of creditors under 11 U.S.C.§341(a) is/was _______________and the court G has G has not fixed a later date for performance by Debtor of the obligations described at 11 U.S.C.§521(a)(2). The extended date (if applicable) is_________________. In a previous case(s), as of the date of dismissal there was

g.

G

an action by the Secured Creditor/Lessor under 11

U.S.C.§362(d) still pending or G such action had been resolved by an order terminating, conditioning or limiting the stay as to such creditor. 3. The equity in the property is calculated as follows: a. 1. 2. 3. 4. 5. 6. 7. 8. 1. 2. 3. 4. 5. 6. 7. 8. Property description/value: Creditor/Lien amount: Creditor/Lien amount: Creditor/Lien amount: Creditor/Lien amount: Total Liens Debtor's Homestead Exemption Equity in the Property (subtract lines 6 and 7 from line 1 and enter here) Property description/value: Creditor/Lien amount: Creditor/Lien amount: Creditor/Lien amount: Creditor/Lien amount: Total Liens Debtor's Homestead Exemption Equity in the Property (subtract lines 6 and 7 from line 1 and enter here) See attached continuation page(s) $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $

b.

G
4. a.

Grounds for Continuing The Stay:

G
1.

Pursuant to 11 U.S.C.§362(c)(3) the stay should be continued on the following grounds:

9

The present case was filed in good faith notwithstanding that a prior single or joint case filed by or against the individual debtor which was pending within the year preceding the petition date was dismissed, because:
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.

January 2009

F 4001-1M.IS

Motion for Order Imposing a Stay or Continuing the Automatic Stay - Page 5 of In re (SHORT TITLE) Debtor(s). CHAPTER: CASE NO.:

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A.

9 B. 9

The prior dismissal was of a case not refiled under Chapter 7 after dismissal under 11 U.S.C. § 707(b); Good faith is shown because

9 See attached continuation page(s) 2.

9
A. B.

The Property is of consequential value or benefit to the estate because:

9 9

The fair market value of the Property is greater than all liens on the property as shown above in paragraph 3 and as supported by declarations attached (describe separately as to each property); The Property is necessary to a reorganization for the following reasons:

9 See attached continuation page C.

9

The Secured Creditor/Lessor's interest can be adequately protected by (describe Movant's proposal for adequate protection):

9 See attached continuation page 3.

9
A.

The presumption of a bad faith filing under 11 U.S.C.§362(c)(3)(C)(i) is overcome in this case as to all creditors because: The prior dismissal was pursuant to the creation of a debt repayment plan. 11 U.S.C.§362(i); Debtor's failure to file or amend the petition or other documents as required by the court or Title 11 and resulting in dismissal was excusable because such failure was caused by the negligence of debtor's attorney; Debtor's failure to file or amend the petition or other documents as required by the court or Title 11 and resulting dismissal was excusable because

9 B. 9
C.

9

9 See attached continuation page D.

9

Debtor's failure to provide adequate protection as ordered by the court in the prior case is excusable because

_ 9 See attached continuation page E.

9

Debtor's failure to perform the terms of a confirmed plan in the prior case is excusable because

9 See attached continuation page F.

9

There has been a substantial change in the personal or financial affairs of the Debtor since the dismissal of the prior case(s) as follows: . From this, the Court may conclude that this case, if a case under Chapter 7, will result in a discharge or, if under Chapter 11 or 13, in a confirmed plan that will be fully performed. 9 See attached continuation page

This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. January 2009

F 4001-1M.IS

Motion for Order Imposing a Stay or Continuing the Automatic Stay - Page 6 of In re (SHORT TITLE) Debtor(s). CHAPTER: CASE NO.:

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G.

9

For the following additional reasons

9 See attached continuation page 4.

9

The presumption of a bad faith filing as to the Secured Creditor/Lessor under 11 U.S.C.§362(c)(3)(C)(ii) is overcome in this case because

9 See attached continuation page 5. Grounds for Imposing a Stay: a.

G
1. 2.

Pursuant to 11 U.S.C. §362(c)(4) this case was filed in good faith and grounds exist for imposing a stay as follows:

9 9

The Property is of consequential value or benefit to the estate because the fair market value of the Property is greater than all liens on the property as shown above in paragraph 3 and as supported by declarations attached. The Property is of consequential value or benefit to the estate because the Property is necessary to a reorganization for the following reasons:

9 See attached continuation page 3.

9

The Secured Creditor/Lessor's interest can be adequately protected by (describe Movant's proposal for adequate protection):

9 See attached continuation page b.

G

The present case was filed in good faith notwithstanding that the prior single or joint cases filed by or against the individual debtor pending within the year preceding the petition date were dismissed, because:

9 2. 9
1. c.

The prior dismissal was of a case not refiled under Chapter 7 after dismissal under 11 U.S.C. § 707(b); Good faith is shown because

9 See attached continuation page

9

The presumption of a bad faith filing under 11 U.S.C.§362(c)(4)(D)(i) is overcome in this case as to all creditors because: 1.

9

Debtor had a substantial excuse in failing to file or amend the petition or other documents as required by the court or Title 11, resulting in the prior dismissal(s) as follows:

9 See attached continuation page 2.

9

Debtor's failure to file or amend the petition or other documents as required by the court or Title 11 and resulting dismissal was as the result of the negligence of Debtor's attorney;

(Continued on next page) This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. January 2009

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Motion for Order Imposing a Stay or Continuing the Automatic Stay - Page 7 of In re (SHORT TITLE) Debtor(s). CHAPTER: CASE NO.:

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3.

9

Debtor's failure to provide adequate protection as ordered by the court in the prior case is excusable because

9 See attached continuation page

4.

9

Debtor's failure to perform the terms of a confirmed plan in the prior case is excusable because

9 See attached continuation page 5.

9

There has been a substantial change in the personal or financial affairs of the Debtor since the dismissal of the prior case(s) as follows: (from which the Court may conclude that this case, if a case under Chapter 7, may be concluded with a discharge or, if under Chapter 11 or 13, with a confirmed plan that will be fully performed. 9 See attached continuation page For the following additional reasons

6.

9

9 See attached continuation page d.

9

The presumption of bad faith as to the Secured Creditor/Lessor under 11 U.S.C. § 362(c)(4)(D)(ii) is overcome in this case because

9 See attached continuation page

6. Evidence in Support of Motion: a. b. c.

(Important Note: Declaration(s) in support of the Motion MUST be attached hereto.)

G G G G

Movant submits the attached Declaration(s) on the Court's approved forms (if applicable) to provide evidence in support of this Motion pursuant to Local Bankruptcy Rules. Other Declaration(s) are also attached in support of this Motion. Movant requests that the Court consider as admissions the statements made by Debtor(s) under penalty of perjury concerning Movant's claims and the Property set forth in Debtor`s(s') Schedules. Authenticated copies of the relevant portions of the Schedules are attached as Exhibit . Other evidence (specify):

d. 7.

G

An optional Memorandum of Points and Authorities is attached to this Motion.

WHEREFORE, Movant prays that this Court issue an Order Imposing a Stay and granting the following (specify forms of relief requested): 1. 2.

G

That the Automatic Stay be continued in effect as to all creditors until further order of the court. That the Automatic Stay be continued in effect as to the Secured Creditor/Lessor with respect to the Property until further order of the court.
This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California.

9

January 2009

F 4001-1M.IS

Motion for Order Imposing a Stay or Continuing the Automatic Stay - Page 8 of In re (SHORT TITLE) Debtor(s). CHAPTER: CASE NO.:

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3. 4. 5.

9
G

That the Automatic Stay be continued in effect as to the Secured Creditor/Lessor with respect to actions to collect the debt owed to the Secured Creditor/Lessor until further order of the court. That a Stay be imposed as to all creditors until further order of the court. That a Stay be imposed as to the Secured Creditor/Lessor with respect to the Property until further order of the court. That a Stay be imposed as to the Secured Creditor/Lessor with respect to actions to collect the debt owed to the Secured Creditor/Lessor until further order of the court. For adequate protection of the Secured Creditor/Lessor by (specify proposed adequate protection)

9 6. 9 9

7.

8.

9 For other relief requested, see attached continuation page.

Dated:

Respectfully submitted,

_________________________________________________________ Movant Name

_________________________________________________________ Firm Name of Attorney for Movant (if applicable)

By: _____________________________________________________ Signature

Name:

__________________________________________________ Typed Name of Individual Movant or Attorney for Movant

DECLARATION OF MOVANT
I,____________________________________, am the ________________________________________ of Movant. I have read the foregoing motion consisting of _____pages, and the attached materials incorporated therein by reference. I declare that the foregoing is true and correct to the best of my knowledge. If reference is made to balances owing, my testimony regarding same is based upon the business records of Movant kept in the ordinary course of business of Movant by persons whose responsibility it is to accurately and faithfully record information as to the debtor's account on or near the date of events recorded. I am one of the custodians of such business records. Executed this _____day of ________, 200__at __________________.

_________________________________________________________ (Signature of declarant)

This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. January 2009

F 4001-1M.IS

Motion for Order Imposing a Stay or Continuing the Automatic Stay - Page 9 of In re (SHORT TITLE) Debtor(s). CHAPTER: CASE NO.:

F 4001-1M.IS

NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in Category I. Proposed orders do not generate an NEF because only orders that have been entered are placed on a CM/ECF docket.

PROOF OF SERVICE OF DOCUMENT
I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is:

A true and correct copy of the foregoing document described as will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d), and (b) in the manner indicated below:

I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ("NEF") - Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) ("LBR"), the foregoing document will be served by the court via NEF and hyperlink to the document. On ________________________ I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email addressed indicated below:

9 Service information continued on attached page
II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL (indicate method for each person or entity served): On _________________________ I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follow. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.

9

Service information continued on attached page

III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on _______________________ I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method) by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.

9

Service information continued on attached page

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

_________________________________________________________ Date Type Name

_____________________________________ Signature

This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. January 2009

F 4001-1M.IS

Motion for Order Imposing a Stay or Continuing the Automatic Stay - Page 10 of In re (SHORT TITLE) Debtor(s). CHAPTER: CASE NO.:

F 4001-1M.IS

ADDITIONAL SERVICE INFORMATION (if needed):

This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. January 2009

F 4001-1M.IS