Form 35-10

Form 35-11 (affidavit in support of motion for relief from automatic stay) in this chapter should accompany this motion. See form 35-12 for an order granting motion for relief from automatic stay.

Warning:      The local rules of the Bankruptcy Courts for the four districts in Texas have specific requirements for the content of the captions of pleadings and orders, and they are all different. The practitioner should consult the local rules of the bankruptcy court for the district in which he intends to file for the specific requirements as to the content of captions. See section 35.1:2.

[Caption. See form 35-3 in this chapter.]

Motion for Relief from Automatic Stay

1.Parties.      This Motion for Relief from Automatic Stay against property of the estate is filed on behalf of [name of creditor], Creditor, pursuant to 11 U.S.C. § 362(d)(1), for cause, by reason of a lack of adequate protection of Creditor’s rights as a secured creditor [include if applicable: and alternatively, pursuant to 11 U.S.C. § 362(d)(2) by reason of [the Debtor’s lack of equity in the collateral described in Exhibit [exhibit number/letter] [and]/the collateral’s not being necessary for an effective reorganization]].

2.Nature of Suit.

a.This Motion is filed pursuant to Fed. R. Bankr. P. 9014 and constitutes a con­tested matter.

b.[Name of debtor], Debtor, filed a Petition for Relief under Chapter
[7/9/11/13] of title 11 of the United States Code on [date].

3.Facts.

a.Creditor is a secured creditor of Debtor with respect to the collateral described in Exhibit [exhibit number/letter] (the “Collateral”).

b.The Collateral is in possession of Debtor.

c.Debtor purchased the Collateral under a [deed of trust/retail installment con­tract/lease] (the “Contract”). A copy of the Contract is attached as Exhibit [exhibit number/letter] and incorporated by reference for all purposes.

d.Creditor is the holder of the Contract.

e.Creditor’s security interest is properly shown by the [deed of trust/security agreement/financing statement].

4.Grounds.

a.Under the terms of Debtor’s plan, monthly payments are to be paid to the trustee for distribution in accordance with the terms of the plan.

b.Debtor is in arrears in his payments to the trustee, and Creditor is not receiv­ing payments from the trustee.

c.Debtor has had the full use of the Collateral described in the attached exhib­its.

d.The Collateral has depreciated and continues to depreciate in value.

e.Debtor has no equity in the Collateral described in the attached exhibits.

f.The Collateral is exposed to risks of damage or loss through accident, theft, fire, and weather, and Debtor has not maintained insurance on the Collateral to insure it against such risks.

g.Under the circumstances described above, good cause exists for lifting the stay, including, but not limited to, Creditor’s lack of adequate protection.

5.Prayer.      Creditor prays that—

a.an Order Granting Motion for Relief from Automatic Stay be entered to per­mit Creditor to repossess the Collateral, to sell or otherwise dispose of the Collateral, and to apply the proceeds from the sale or other disposition against the outstanding indebtedness, less all unearned finance charges and less all other charges that have not yet become due and payable, owed by Debtor under the contract;

b.the stay be immediately lifted on entry of an Order Granting Motion for
Relief from Automatic Stay, notwithstanding Fed. R. Bankr. P. 4001(a)(3);

c.Creditor be awarded reasonable attorney’s fees; and

d.Creditor be awarded all further relief to which Creditor may be entitled.

   
[Name]
Attorney for [name of client]
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]