GUIDELINES FOR CONSENT ORDERS RESOLVING STAY RELIEF MOTIONS IN CONSUMER CASES FILED ON OR AFTER MARCH 1, 2020
- Proposed Orders Need Not Recite Facts
- Prior acts or omissions, including a history of prior payments made or missed, need not be separately described.
- The order should prescribe only future obligations, including for example required payments or filing amended or modified plans.
- If you believe prior acts or omissions must be included, please describe them in the preamble, not in the ordering paragraphs.
- Required Notice in the Event of Default
- Pursuant to Local Rule 4001-3(b), the proposed order must provide for service of the ex parte motion, affidavit and other supporting materials on debtors and their attorney (if debtors have counsel).
- To ensure that debtors (and their counsel) receive adequate notice of the request for default relief, the judge typically holds the proposed orders for five days before considering them.
- Attorney Fee Limitations
- Consent orders/APOs containing requests for fees and costs totaling more than $750.00 plus the filing fee must be set for hearing.
- Relief Not Permitted in Consent Orders
- The judge will not sign proposed orders that:
- provide for abandonment of property in the event of default.
- include language stating that any relief granted is res judicata if the case is converted to a proceeding under another chapter of the Bankruptcy Code.
- recite that default relief will be granted on submission of an affidavit only. Local Rule 4001-3 requires that a party seeking stay relief for default of a consent order file a motion for relief, affidavit and copy of the consent order.
- immediately place the debtor in default. For example, the judge will not sign a consent order requiring the filing of an amended plan by a date already past, if no amended plan was filed by that date.
- state a creditor can "immediately" foreclose in the event of default.
- The judge will not sign proposed orders that:
- In the event of default by the debtor of the terms of the consent order, in order for a successor to the original party to the consent order to enforce the consent order, the successor must prove that it has succeeded to the rights of the original party.