United States Bankruptcy Court

for the District of Colorado


Local Bankruptcy Rule 401

Notice of Hearing on Motion for Relief from Stay
(Please see GPO 2005-2 for additional affidavit compliance requirements for Motions for Relief from Stay)
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(a) Motions for Relief from Automatic Stay under 11 U.S.C. 362(d):

(1) Each Judge of the Court will maintain his or her division's individual motion calendar. Information as to the time and dates of each division's calendar may be obtained from the Clerk of the Court. Unless otherwise provided by court order, all motions for relief from stay shall be set for hearing on the calendar of the division to which the case is assigned.

(2) A party desiring to file a motion for relief from stay in a pending bankruptcy case will select from the calendar of available hearing dates a proposed date of hearing, which will be the latest hearing date available on the division's calendar which is not more than thirty (30) days from the date the motion for relief from stay is filed. In the event the movant sets a hearing date beyond thirty (30) days, the movant is deemed to have waived its right under 11 U.S.C. 362(e) to automatic relief after thirty (30) days.

(3) The movant shall, on or before the date the motion for relief from stay is filed, serve the motion and a notice of hearing, which shall be filed in substantial conformity with L.B.F. 401.1, Notice, on all interested parties. An certificate of service on both the motion and the notice shall be filed together with the motion and notice. The notice of hearing shall specify that an objection and request for hearing must be filed at least five (5) court days prior to the hearing date and that, if no objection to the requested relief is timely filed, the relief requested in the motion may enter.

(4) If no objection is filed to the motion and the movant desires entry of any order granting relief, then not earlier than three (3) court days after the date on which objections are due, the movant shall submit to the court:

(A) a Certificate of Non-Contested Matter and Request for Entry of Order which shall be in substantial conformity with L.B.F. 401.3, Movant’s Non-Contested Certificate Regarding Motion for Relief From Stay; and

(B) a form of order which shall be in substantial conformity with L.B.F. 401.2, Order; or

(C) a stipulation for entry of relief.

(5) At the time the bankruptcy case is closed pursuant to 350, 707, 930, 1112, 1208, or 1307 of Title 11, all pending motions for which no certificate has been submitted pursuant to this section shall be deemed moot and the Clerk shall enter an order accordingly.

(b) Motions for Relief from Stay Under 11 U.S.C. 1201 or 1301: The procedures for seeking relief from the codebtor stay shall be the same as that specified in (a) above except the hearing date selected shall be the latest hearing date available on the division's calendar which is not more than twenty (20) days after the date the motion for relief from stay is filed, and the response and request for hearing must be filed not less than three (3) court days before the specified hearing date.

(c) Procedures: The following procedures shall apply at the hearing on the motion for relief from automatic stay:

(1) No witnesses will be examined and no testimony will be taken. Evidence will be presented in the manner hereinafter specified.

(2) In lieu of testimony, a party intending or desiring to present evidence shall do so by way of an oral declaration of facts. Such declaration shall be limited to offers of proof with respect to the evidence which the party would submit in sufficient detail to enable the court to make specific findings based thereon, and shall include the identity of the witnesses who would be available at the evidentiary hearing to present such testimony. Written summaries of witnesses' testimony are not required but may be submitted.

(3) Parties shall exchange all exhibits they intend to use, or may reasonably anticipate using prior to the hearing. The exhibits shall be tendered with the court at the hearing, together with a statement identifying the witness or witnesses who would be called to identify and lay the foundation for the introduction of such exhibits.

(4) Objections to tendered declarations or exhibits shall be made at the conclusion of each party's declaration. Any objections made shall identify the evidence objected to and specify the ground therefor.

(5) Based on the declarations, exhibits and arguments presented, the court may treat the hearing as a preliminary hearing and, if required by 11 U.S.C. 362(e), set the matter over for a final hearing. Any party anticipating the use of an expert witness for a final hearing will, at the initial hearing:

(A) identify the witness;

(B) mark as an exhibit and file a copy of the qualifications of the witness; and

(C) mark as an exhibit and file a written summary of the expert's expected testimony and opinions to be expressed.

(6) Parties and counsel shall bring their calendars to the scheduled hearing so that a final hearing, if required, can be set.

(7) The parties shall be required to state that efforts to settle have been made.

(8) Failure to comply with this Rule may result in such orders or sanctions as may be appropriate, including denial of the motion.

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