UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
DONNY ALLEN JONES CASE NO. 98-60188
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Strike Response and to Award Fees filed herein by movant, NBD Bank, NA, because of the debtor=s filing of a response to a Motion for Relief filed by movant on a notice and opportunity basis and not supporting the response with a statement of grounds or noticing the motion for hearing pursuant to LBR 4001-1. The Court will strike the response and has already entered the Order for Relief from Stay as requested by the motion, but will overrule the motion for sanctions pursuant to FRBP 9011 because the movant has not complied with the notice provisions set forth in subparagraph (c) thereof.
Movant filed a Motion for Relief from Automatic Stay on April 22, 1998 to have the stay terminated in order that it might proceed against the collateral for its loan. That motion was properly noticed for hearing only if an objection was timely filed on a Anotice and opportunity@ basis pursuant to local rules. On April 29, 1998, the attorney for the debtor, John C. Carter, filed a one sentence response to the Motion for Relief from Automatic Stay objecting, but stating no grounds for such objection. The debtor=s attorney did not set the matter for hearing.
LBR 4001-1 requires a party objecting to a Motion for Relief From Automatic Stay, where that motion is filed on a notice and opportunity basis, to state the grounds for opposition to the motion and give notice of the place, time and date of the hearing thereon. Clearly, the attorney for the debtor herein failed to comply with the provisions of this Rule in both regards.
Movant seeks sanctions pursuant to FRBP 9011 and contends that the response was interposed for an improper purpose, such as causing unnecessary delay or needlessly increasing the cost of litigation for the movant.
The attorney for the debtor has not responded to the motion nor did he or the debtor appear at the hearing on the motion.
While the conduct of the attorney for the debtor appears likely to be in violation of FRBP 9011, subsection (c) thereof requires that, where the proceeding under that Rule is initiated by motion, the motion must be served on the offending party 21 days before filing with the Court in order to give the offending party an opportunity to withdraw the offending document or appropriately correct the matter. The movant in this case did not give such notice, and the Court will therefore not award sanctions to movant.
It is hereby ORDERED that the Motion of NBD Bank, NA herein to Strike Response and to Award Fees is SUSTAINED as to the striking of the response and is OVERRULED as to an award of fees as requested therein.
Dated this ____ day of May, 1998.
BY THE COURT
Dean A. Langdon, Esq.
John C. Carter, Esq.
Maxie E. Higgason, Esq.