As a means of streamlining and reducing the expense of practice under 11 U.S.C. § 362(d) and encouraging out-of-Court resolution of motions for relief from stay, the undersigned judge hereby issues the following guidelines for adequate protection orders. These guidelines are applicable only in motions for relief from stay pending before the undersigned. They are only guidelines, and should not be interpreted as ironclad. Each motion under § 362 must be decided on its own facts. However, these guidelines represent nine years of precedent from orders I’ve issued, as well as the outcome in about 75% of motions with similar facts.

I. RESIDENTIAL REAL ESTATE

A. As to debtors filing their first Chapter 13 case or their first Chapter 13 case more than two years after a prior bankruptcy case was closed:

1. With regard to the debtor’s residence, and assuming no other cause is shown:

i. if the debtor is 0 postpetition payments in arrears at the time the motion is filed, the motion will be denied;

ii. if the debtor is 1 to 3 postpetition payments in arrears at the time of the hearing on the motion, then the debtor will be required to make one and one-third payments until current, beginning with the next payment that comes due after the preliminary hearing date;

iii. if the debtor is 4-6 payments in arrears at the time of the hearing on the motion, then the debtor will be required to make one and one-half payments until current, beginning with the next payment that comes due after the preliminary hearing date;

iv. if the debtor is more than 6 payments in arrears at the time of the hearing on the motion, then the debtor will be required to make one and one-half payments until current, beginning with the next payment that comes due after the preliminary hearing, provided that the cure period may not exceed l2 months.

2. In addition to I(A)(1)(ii), (iii) or (iv) above, as a condition to the stay remaining in effect, debtor will be required to:

i. Provide proof of homeowners insurance within 7 days of the preliminary hearing on the motion if no insurance is then in place, and to maintain such insurance thereafter;

ii. Pay property taxes which come due after the preliminary hearing date;

iii. Keep current all deeds of trust having priority over the movant’s;

iv. Consent to relief from the automatic stay for the movant should any lienholder obtain relief from the automatic stay to proceed with a foreclosure sale;

v. Make all regular monthly payments by the end of any grace period in the note or deed of trust. Should the debtor fail to make the payment by the end of the grace period, then the movant may serve a letter upon the debtor and debtor’s counsel by first class postage immediately thereafter, which instructs the debtor that unless the missed payment is received by way of a bearer instrument (cashier’s check, money order, etc.) within ten days of the date of the letter, the automatic stay will lift without further notice or hearing; provided that the debtor shall have the benefit of this provision on only three occasions. Should the debtor fail to make the payment by the end of the grace period on a fourth occasion, and the creditor has on three previous occasions sent letters in compliance with the above procedure, then the stay shall automatically lift the day after the grace period ends pursuant to the note or mortgage; and

vi. Come completely current within 60 days if debtor is behind on his plan payments to the Chapter 13 trustee.

B. As to debtors filing their second bankruptcy case of any kind within the last 12 months, in addition to the requirements of I(A)(2) above, debtors shall be required to cure any postpetition arrearages within six months, and a 180 day ban on additional bankruptcy filings shall be included in the order.

C. As to debtors filing their third bankruptcy of any kind within a two-year period, the stay will be lifted unless debtors establish extraordinary circumstances.

D. As to debtors filing their first Chapter 7 case or their first Chapter 7 case in over six years, the stay shall lift effective:

1. immediately if the creditor is not to the point of sale in its foreclosure proceeding; or otherwise

2. within 30 days of the date of the preliminary hearing or the day after the last day for filing complaints objecting to discharge, whichever occurs first. If the debtor is willing to make one regular monthly payment, then the stay will lift within 60 days after the preliminary hearing rather than 30 days, so long as that payment is made when the next monthly payment comes due after the preliminary hearing date.

II. AUTOMOBILES

A. As to debtors filing a Chapter 13 case:

1. If regular monthly payments on the automobile in question are so high that the debtor would be unable to meet the disposable income test of 11 U.S.C. § 1325(b)(2), then the stay will be lifted.

2. In all other cases involving delinquent payments to the Chapter 13 trustee and/or delinquent payments to the secured creditor, as a condition to the stay remaining in effect:

a. The debtor shall be required to pay all postpetition arrearages to the Chapter 13 trustee and/or secured creditor within 90 days of the preliminary hearing date; and

b. The debtor shall be required to provide proof of insurance for the automobile at the preliminary hearing on the motion.

B. As to debtors filing a Chapter 7 case, the stay will be lifted immediately.


Counsel for secured creditors are encouraged to inform their clients of these guidelines. In those motions which fit under these guidelines, all counsel (and in appropriate circumstances, their clients) will be required to state at the preliminary hearing why these guidelines shouldn’t apply.