Judge Weissbrodt's Practice Tip - Motions to Extend or Impose an Automatic Stay

UNITED STATES BANKRUPTCY COURT

for the

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

 

Arthur S. Weissbrodt                                                                          Telephone: (408) 278-7575

United States Bankruptcy Judge

 

Practice Tip: Motions to Extend or Impose an Automatic Stay

 

When a debtor timely moves to extend or impose an automatic stay under 11 U.S.C. §§ 362(c)(3)(B) or (4)(B), the Court may only extend or impose the stay “after notice and a hearing.” Under B.L.R. 4001-2(a), the motion is filed in accordance with Fed. R. Bankr. P. 9013 and initiates a contested matter under Fed. R. Bankr. P. 9014. Service of the motion must be on all creditors to be stayed, the United States Trustee, any trustee appointed in the case, and the debtor (if the debtor is not the moving party). See B.L.R. 4001-2(c). Unless the Court orders otherwise, service of the motion must comply with Fed. R. Bankr. P. 7004, but if the party being served has previously appeared in the case, service need only comply with Fed. R. Bankr. P. 7005. See B.L.R. 4001-2(c).

 

Under Fed. R. Bankr. P. 7004(b), service of a motion to extend or impose the automatic stay generally must be by first class mail, except that a depository institution which is insured by the FDIC must be served in accordance with Fed. R. Bankr. P. 7004(h). Therefore, an FDIC-insured institution must be served by certified mail upon an officer of the institution, unless an exception within Rule 7004(h) applies. For information on how to serve an FDIC-insured institution, please refer to the Practice Tip: Service by Mail on Corporations, Partnerships and Financial Institutions, found at: http://www.canb.uscourts.gov/judges/weissbrodt/procedures.

 

Under Fed. R. Bankr. P. 7005, which incorporates Fed. R. Civ. P. 5, service can be accomplished in several ways, including: handing the document to the person being served; leaving the document at the person’s office, either with a clerk or person in charge, or in a conspicuous place; leaving the document at the person’s dwelling or place of abode with a person of suitable age and discretion; mailing the document to the person’s last known address; leaving the document with a court clerk if there is no known address; sending the document electronically if there is written consent for electronic service; or delivering the document in any other manner consented to in writing by the person being served. Fed. R. Civ. P. 5(b)(2). Service on a represented person must be on the party’s attorney, unless the Court orders otherwise. Fed. R. Civ. P. 5(b)(1).