Obtaining an Order Vacating Automatic Stay

Court in which procedure applies: Judge Zive (Reno, NV)

Parties procedure applies: Northern Nevada Bankruptcy Bar

Effective: 10/12/2004

In order for a creditor to obtain an ex parte Order Vacating Automatic Stay resulting from a debtor’s breach of an Order for Adequate Protection, evidence demonstrating satisfaction of all conditions in the adequate protection order must be submitted by the creditor with the proposed Order Vacating Automatic Stay. The evidence must be on file with the court and part of the record. For example, the Order for Adequate Protection often requires a Notice of Default to be sent to the debtor. Evidence of satisfaction of this condition must be provided (often in the form of affidavit or declaration). Typically, after the Notice of Default is sent, the debtor has a certain number of days to cure the deficiency. Evidence that the debtor did not cure timely must be provided (also often in the form of the affidavit or declaration). The court will not sign Orders Vacating Automatic Stay without evidence of satisfaction of all conditions of the Order for Adequate Protection. Language within the Order Vacating Automatic Stay signed by the creditor as to the debtor’s failure to cure is not sufficient and does not provide the court with a record on which to base a finding that the debtor did not comply with the terms of the Order for Adequate Protection.