Motion for Relief, New York

Local Rules/ Judge Requirements for MFR Proceedings

Eastern District

Local Rule 4001-1(c) requires that “If the debtor is an individual, a motion for relief from the automatic stay under Bankruptcy Code § 362 shall be supported by an affidavit, based on personal knowledge, attesting to the circumstances of any default with respect
to an obligation related to the motion.” (See https://www.nyeb.uscourts.gov/local-bankruptcy-rules-united-states-bankruptcy-court-eastern-district-new-york#4001-1)

Local Rule 4001-1(d)requires that “If the debtor is an individual, a party moving for relief from the automatic stay under Bankruptcy Code § 362 relating to a mortgage on real property or a security interest in a cooperative apartment shall file, as an exhibit to the
motion, a completed copy of the form available on the court’s website
(https://www.nyeb.uscourts.gov/forms/relief-stay-real-estate-and-cooperative-apartments-72408-form-be-included-exhibit-motions). Compliance with this subdivision shall constitute compliance with subdivision (c) of this rule.” See https://www.nyeb.uscourts.gov/local-bankruptcy-rules-united-states-bankruptcy-court-eastern-district-new-york#4001-1 )

The Form required by Local Rule 4001-1(d) was instituted by General Order 533 in the EDNY Bankruptcy Court. See. https://www.nyeb.uscourts.gov/sites/nyeb/files/general-ordes/ord_533.pdf

Southern District

Local Rule 4001-1(b) requires that “If the debtor is an individual, the motion must be supported by an affidavit, based on personal knowledge, attesting to the circumstances of any default with respect to an obligation related to the motion..” (See https://nysb.uscourts.gov/sites/default/files/LocalRules2023.pdf).

Local Rule 4001-1(c)requires that “If the debtor is an individual, a party moving for relief from the automatic stay under section 362 of the Bankruptcy Code relating to a mortgage on real property or a security interest in a cooperative apartment must file, as an exhibit to the motion, a completed copy of the following form. Compliance with this subdivision shall constitute compliance with subdivision (b) of this rule.” See (https://www.nysb.uscourts.gov/sites/default/files/LocalRules2023.pdf).

The Form required by Local Rule 4001-1(c) was derived from General Order M-346 as amended by General Order M-347 See
https://www.nysb.uscourts.gov/sites/default/files/m347.pdf.

Northern District

Local Rule 4001-1(b)(1) requires that “If the movant seeks stay relief with respect to a mortgage on real property and the basis for the motion is a payment default, and the debtor has not indicated in the petition and schedules or in a plan of reorganization that the debtor intends to surrender the real property, the movant shall file, as an exhibit to the motion, a completed copy of Certification of Payment History on the Note and Mortgage Dated [ ] and Related Information. If the Certification is not required, the movant shall indicate the reason why in its motion.” (See https://nysb.uscourts.gov/sites/default/files/LocalRules2023.pdf).

Western District

WDNY- Judge Warren of the Rochester Division requires a cover sheet with motions for relief from stay: “Any motion seeking relief under sections 362(d), 506(a), 522(f), 554, 722 or 1229/1329 must include a cover sheet. All motions must include a proposed order as an exhibit. Motions submitted without the required cover sheet or proposed order will not be set for a hearing.” See https://www.nywb.uscourts.gov/content/judge-warren.

No district in NY has local rules/judge requirements that require there be a minimum number of missed payments before a Motion for Relief can be filed.

Documents need for Chapter 7 MFR

• Bank affidavit – This is not needed for WDNY, or for Surrenders in the NDNY
• Schedule A/D or some form of property valuation completed within the past 120 days
• Endorsed Note
• Mortgage with recording page/information
• Assignments of Mortgage/merger documents (if applicable)
• Loan Modification(s) (if applicable)
• Entered Judgment of Foreclosure and Sale (if applicable)
• Deeds (if applicable)
• Statement of Intention

Co-op’s may require

• Recorded UCC
• Stock Certificate
• Assignment of Stock
• Loan Security Agreement
• Proprietary Lease
• Recognition Agreement

Documents for Chapter 13 MFR

• Bank affidavit – This is not needed for WDNY, or for Surrenders in the NDNY
• Schedule A/D or some form of property valuation completed within the past 120 days
• Endorsed Note
• Mortgage with recording page/information
• Assignments of Mortgage/merger documents (if applicable)
• Loan Modification(s) (if applicable)
• Entered Judgment of Foreclosure and Sale (if applicable)
• Deeds (if applicable)
• Chapter 13 plan (if this is a Surrender)

Co-op’s may require

• Recorded UCC
• Stock Certificate
• Assignment of Stock
• Loan Security Agreement
• Proprietary Lease
• Recognition Agreement

MFR response periods vary by district:

• Eastern District – Local Bankruptcy Rule 9006-1(a)(ii) requires “(ii) any answering papers shall be served so as to be received at least 7 days before the hearing date” See https://www.nyeb.uscourts.gov/local-bankruptcy-rules-united-states-bankruptcy-court-eastern-district-new-york
• Southern District – Local Bankruptcy Rule 9006-1(b) requires “Where service is made at least fourteen (14) days before the return date, any answering papers shall be served so as to ensure actual receipt not later than seven (7) days before the return date, and reply papers shall be served so as to ensure actual receipt not later than 4:00 p.m. three (3) days before the return date.” See https://www.nysb.uscourts.gov/sites/default/files/LocalRules2023.pdf
• Northern District – Local Bankruptcy Rule 9013-1(g) reads “Timeliness of Filing and Service. Answering papers shall be served and filed so as to be received not later than seven (7) days prior to the return date of the motion. The date, time, and location of the hearing shall be included above the case number in the caption.” See https://www.nynb.uscourts.gov/sites/nynb/files/LBR_GenOrders/LBRs_12-03-2022rev-3.pdf
  
  For a motion for relief in NDNY, the motion will not appear on the calendar if default language was included in the Notice of Motion and no timely objection was filed.
• Western District – WDNY Judges do not require responsive papers ahead of the hearing date. However, pursuant to Administrative Order, cases in the Rochester division may include a Negative Notice Statement that includes the following: “written opposition to a motion must be served and filed not less than 72 hours prior to the scheduled date and time of the hearing on a motion” See Administrative Order dated 12/21/2023 under Judge’s motion procedures https://www.nywb.uscourts.gov/sites/nywb/files/Negative%20Notice%20Procedures.pdf.

The procedures for handling a MFR where no response is received by the deadline date, vary according to district:

• Eastern – the procedures are Judge Dependent in EDNY:
  • Judge Trust – Per Judge’s procedures with respect to MFR’s: “Motions on Judge Trust’s calendars which are not timely opposed as required by EDNY LBR 9006-1 shall be deemed unopposed motions. Any such motion may be granted by the Court without the need for an appearance or a hearing, provided that the moving party files with the Court a Certificate of No Objection (“CNO”) at least three (3) business days prior to the scheduled hearing date.
  • Judge Scarcella – “unopposed motions, including motions by the Chapter 13 Trustee to dismiss cases, may be granted by the Court without the need for an appearance provided that the moving party files with the Court a proposed order granting the motion along with a Certificate of No Objection at least two (2) days prior to the scheduled hearing date. Following receipt of the Certificate of No Objection, the Court may enter an order granting the motion without further pleading, hearing or request.
  • Judge Grossman – Unopposed motions, including motions to dismiss filed by the Chapter 13 trustee, may be granted by the Court without the need for an appearance provided that the moving party files with the Court a Certificate of No Objection and proposed order. Following receipt of the Certificate of No Objection, the Court may enter an order granting the motion without further notice or hearing.
  • Judge Strong – Will not enter an order even on uncontested matters without a hearing.
  • Judge Lord – Will not enter an order even on uncontested matters without a hearing.
  • Judge Mazer-Marino – “If a motion or application has been filed, appropriate notice has been given, and no objection, responsive pleading, or request for adjournment respecting the motion or application has been filed or received by movant within twenty-
    four (24) hours after the objection deadline, counsel for the movant may file a certificate of no objection (“CNO”). Upon receipt of the CNO, the Court may enter the order granting the motion or application without a hearing;
• Southern District – SDNY – Local Bankruptcy Rules 9075-2(a) and (c) permit a party to file a Certificate of No Objection with respect to a MFR and unless the Court advises otherwise, the hearing will be cancelled and Order entered if the Court is satisfied by the representation and the Debtor is not pro se: See Local Rule 9075-2: https://www.nysb.uscourts.gov/sites/default/files/LocalRules2023.pdf
• Northern District – NDNY allows a motion to terminate the automatic stay to include in the Notice of Motion a Default Notice which reads as will be et forth below and assuming no timely opposition is received, the motion will be granted and without a
  hearing and the matter will not be heard on the calendar See Local Bankruptcy Rule 9013-3 https://www.nynb.uscourts.gov/sites/nynb/files/LBR_GenOrders/LBRs_12-03-2022rev-3.pdf
• Western District
  • Rochester Division: Pursuant to an Administrative Order, cases in the Rochester division may include a Negative Notice Statement that includes the following: “written opposition to a motion must be served and filed not less than 72 hours prior to the scheduled date and time of the hearing on a motion” See Administrative Order dated 12/21/2023 under Judge’s motion procedures https://www.nywb.uscourts.gov/sites/nywb/files/Negative%20Notice%20Procedures.pdf
  • Buffalo Division: If a motion to vacate stay in a Chapter 7 case is filed where the Debtor has filed a statement of intention indicating surrender or in a Chapter 13 case where the property is to be surrendered pursuant to the terms of a confirmed plan, and the Notice of Motion states that the motion may be submitted on the papers absent opposition, no hearing will be held and the motion may be granted. See https://www.nywb.uscourts.gov/sites/nywb/files/Calendar%20Practice%20Mayville%20NF%20Olean.pdf

Orders granting relief are routinely entered within about one week from the objection deadline/hearing date in the Southern, Western and Northern Districts. In the Eastern District, the Order can take several weeks.

There is no rule or order which prevents partial payments from being accepted while a MFR is pending, but most Judge’s will encourage resolution if this is done.

If an MFR is contested, matter will be set down for an evidentiary hearing with witnesses requested to appear in person as to payment. Value may be allowed to be proven by Affidavit.

Judge Morris in the Southern District allows the highest MFR fees/costs to be recovered ($1050 + filing fee) but only collectable at foreclosure.

Judges in the Eastern District do not allow fees/costs for MFR’s. Western and Northern districts limit fees to an average of about $350.00 plus filing fees providing there is equity in property to support same.

Judges will only waive 14-day post MFR waiting period if there is an urgent need to preserve the property. This is based on the wording of Bankruptcy Rule 4001(a)(3) which states “An order granting a motion for relief from an automatic stay made in accordance with Rule 4001(a)(1) is stayed until the expiration of 14 days after the entry
of the order, unless the court orders otherwise.”

While waiving the 14 day period to preserve the property is done, shortening of the period is not typical.

If disclosed in a filed Post-Petition Fee Notice (PPFN), the creditor may be able to collect from the debtor any and all post-petition attorneys’ fees if the case is dismissed prior to discharge. 11 USC 506(b) requires there must be equity for fees to be collectable. Assuming equity, all fees are collectable assuming fees older than 180 days were disclosed in a previously filed PPFN.

If moneys have been disbursed under the Proof of Claim prior to the time the stay was lifted and payments ceased, the Trustee will file a Notice of Final Cure even after the stay has been lifted.