## United S tates Ban kruptcy Ap pellate Panel FOR TH E EIGHTH

CIRCU IT

No. 06 -607 7WM

In re: * * Tanna L aTisha S uggs, * * Debtor. * * * Appeal from the United States Tanna L aTisha S uggs, * Bankruptcy Court for the * Western District of Missouri Plaintiff - Appella

nt. *

* v. * * Regency Financi al Corp., * * Defendant - Appellee. * *

Submi tted: Sept embe r 12, 2007 Filed: No vember 5, 2007

Before KRESS EL, Chief Judg e, MAHONEY, and MCDONALD, Bankruptcy Judges

.
MAHONEY, Bankruptcy Judge.
This is an appeal of two orders of the bankruptcy court which arose from an order granting relief from the automatic stay to cre ditor Regency Financial Corporati on (“R

egency ”). Th e order gr

anting rel ief has not be en appeal ed. The debtor2

filedan adve rsary

pr oceeding against Regency al leging viola tion of the a

utoma tic stay

. Sh e appeals a text order filed O ctober 6, 2006, m emor ializing a n oral ruling granting Reg enc y’s mo ti on to di smi ss t he adversa ry proceeding a

nd denying the debt or’s motion

for sum mary judgm ent, and a

mem orandum opinion and order filed November

30, 2006, d enying the debt or’s motion for new trial or a mendm ent of the October 6th order.

We reverse the decision of the bankruptcy court on the order dism

issing the adversar y proc eeding.

I. Proc edural Ba ckground
Regency held a perfected first lien on the debtor's 1998 Ford Windstar van securing i ts purchase-money security interest in the vehicle. Debtor filed a Chapter 13 bankruptcy case in March 2005. Early in the case, Regency m oved for adequ ate pro tect ion on the vehicle and specifically referred to the debtor’ s contractual obligation

to maint ain casua lty insu rance on t he vehicle. That motion was denied. I n the meantim e, the debtor suspended her plan pa ym ents from

April 16, 2005, through May 14, 2005. The d ebtor then obtained c onfirm ation of a p lan in May 2005. The plan called f

or weekl y $202 pa ym ents to Reg ency, but

the debtor wa s unable to m ake those paym

ents as schedul ed. In A

ugust 2005, t

he debtor m

oved to suspend the plan paym ents from May

14, 2005, through October 1, 2005. The motion was granted over R egenc y’s objectio n. Regenc y, ha ving rece ived only

one plan pa

ym ent during t

he pendency of the case and knowing that the debtor ’s autom

obile insurance

coverage was about to expire, then moved for relief from the a utomatic stay

on Octobe r 6, 2005. That motion was deni ed.

In April 2006, aware that insurance coverage on the vehicle had lapsed and was not reinstate d, R ege ncy s ent noticeto the debto r that insur ance cove rage on the vehicle must be in place by a date certain or Regency

would take

steps to pro tect its1 UnitedStates B ankruptcy Court f or the Western District of Missouri Local Rule of Pract ice 4070- 1.D.:
D. Motor V ehicles. For a m otor vehicle retained by debtor and subject to a credi tor’s allowed s ecured c laim (including a mobile home or trailer designed for or ca

pable of tr

avel on publi c roads) i

n addi tion to requirem ents stated in Paragraphs A, B and C, if debtor fails to pr ovide proof of insurance o r for an y rea son insuranc e term inates, d ebtor is enjoined fr om u sing the vehi cle so long a s it is uninsur ed and the following applies: 1. The sec ured cre ditor

shall serv e debtor, personall y or by mail, atth e addres s in the ban kru ptc y pet iti on, and deb tor ’s at tor ney, written notice of the lapse of insurance. 2. If debtor fails to provide

the credi tor proof o f insuranc e within three busin ess day s after service of the notice in subsection (1), debtor shall surrende r the vehic le or the s ecured c reditor may take possession

and hold it pending presentation of proof of insurance. 3. Within f

ive days after

taking posse ssion of a vehicle purs uant to subsection (2), the creditor shall file a moti on for l ift of s tay, with an affid avit statin g c ompliance with this Rule. The Court may grant the creditor relief fro m § 362 without fu rther hea ring or notice. 4. Absent ag

reem ent b etw een the de

btor and the

lienholder , the debt or shall prep ay at

least thr ee m onths of insur ance on th e vehicle; the c ollision and c omprehensive ded uctible shall not exceed five hundred dollars ($500); an d the insura nce policy

shall name the lienholder as a loss payee. 3 collateral. This wa s based on a local rule in the Weste rn Distr

ict of Miss ouri requiring debtors to maintain insurance covera ge on veh icles ser ving as coll ateral a

nd perm itting secured c reditors, prior to obt aining rel ief from the stay , to take possession of such vehicles pending presentation of proof of insurance. 1 Af ter rec eiving no
re sponse, Regency

sent a re minde r letter

to the debto r’s attorney , settin g a ne w deadline for provid

ing proof of

insurance . On May

2, 2006, R

egency repossesse d the vehicle due to the debtor’s failure to provide proper insuranc e coverage. On May 3r d,2 Her ca uses of ac tionalso included conversion, negligence, and a civil rights violation. Each cause of action was predicated on Reg ency’s alleged st ay viol ation.

3 The orde r, at Fi ling #69 in the bankruptcy

case, i s as follow s: Order of the Court Granting the Motion for Relief from Stay regardin g 199 8 Ford Windsta r GL filed by Regency Fin ancial Corp oration. N o attorney s’ fees are awar ded to Movant

in thi s proceedi

ng, withou

t prejudice. So ORDERED by /s/ Arthur B. Fed erman. . . . .

. . . This Notice of

Electr onic Filing

is th e O ffic ial ORDER for t his ent ry. No document is attached. 4 Rege ncy wrote to the debtor’ s attorney , inform ing him of the re

possession a

nd advisinghim tha

t the vehic le could bereturned to the debto r

if she prov ided proof of three months of pre-pa

id insuranc e covera ge, signed a stipulati on agreeing to maint ainthe ins urance or sur render th e vehicle

to Regenc y wit

hout furthe r action, and paid the reposs ession and f

iling fees incurred

by Regency. On May 4t

h, the deb tor filedan advers ary c omplaint seeking dama ges for Re gency ’s viola tion of the autom atic stay in repossess ing the van. 2 On May 5th, Regency filed a motion for relief from the automatic s tay pursuant to Local Rul e 4070-1.D., setting out the reas ons for the repossessi on and seeking an order perm itting it to f orecloseits securi ty inte rest. The debtor obj ected, a sserting, inter alia , that Regency violated 11 U.S.C . § 362(a), failed to comply with the ter

ms of the local rule regardin g submi ssion of an a ffidavit in support of t

he relief motion , and, m

oreover, that the local rule is invalid be cause itconflicts with and

is inconsist ent with th e Bankrupt cy Cod e and Rule s, particularly § 362(a) an d Federal Rule of Bankruptcy Procedure 4001. After a hearing on June 5, 2006, the bankrup tcy c ourt grant ed Regenc y’s motion for rel ief, via

a text ent ry on the docket. 3 That order was not appealed.

In late June 2006, Regency filed a m otion to dism

iss the adver sary proceedin g, asserting that by granting th e moti on for

relief, the bankruptcy court had created law5

of the casewith r egard to th e debt or’s allegatio ns in the adv ersary compl aint and the issue should not besubject to relitigation. The debtor responded with her own m otion f or summa ry judgm ent. The court held a hearing and ruled from the b ench , subsequently

entering a

text order gra nting Regen cy’ s motio n to dismiss and deny ing the debtor’ s motio n for sum mary judgm ent. The

debtor m oved to reconsider, which
was treated as mot

ion to ame nd or for a

new trial pursuant

to Federa

l Rules of Civil Procedure 59(a), 59(e), and 60(b), which the court denied in an ora l ruling. In that oral ruling, the court sai d ther e could be n o violation of the autom

atic stay if Regen cy’s action was authorized by the order granting Regency’s m otion for relief from the autom

atic stay . The c ourt went

on to explain that Rege ncy w ould not have been entitled to relief f

rom t he stay unless it had com

plied with

the local rule. The issue of compliance was necessarily ruledon when the

court gra nted the m

otion for relief, the court s aid, and t herefore, the is s ue was “ actually litigated”

and was no t subj ect to collat eral att ack. Tr . of Oc t. 10, 2006 , 9:1-14. For the sa me reason, the debtor could not re litigate th e issue of t he validity

of the loca

l rule bec ause the court
necessar ily overrule d that claim when it grante d the m otion for relief. Id. 9:18-10:6.

The cou r t thereaf

ter file d a me mora

ndum opinion and order deny ing the motion. The m emorandum opinion clar ifies the court’ s finding that collateral estoppel precludedthe debtor’s attempt to relitigate the constitutionality of and Re genc y’s comp liance wit h the local rule, because the order granting relief from stay “nec essarily

resol ved t hose issu es in Regen cy’s favo r.” Mem. Op . at 4 (A ppel lant ’s App. at 1 45). Thi s appeal f ollowed.

II. Standard of Review

T he parties agree that

no facts a

re in disput es here. The trial court ’s lega l conclusions are reviewe d de novo. Apex Oil Co. v. Sp arks (In re Apex Oil Co.) , 406 F.3d 538, 541 (8th Cir. 2005).6

In reviewing de novo an order gra nting a motion to dismiss, the appellate court must accept all well- pled fact s as true a nd draw all reasona

ble inferenc es in

favor of the appellan t. Weave r v. Cla rke , 45 F.3d

12 53, 1255 (8t

h Cir. 199 5); Foss v. H all County Child Support Office (In re Foss) , 328 B.R. 780, 782 (B.A.P. 8th Cir. 2005). The bankruptcy

court’ s applicat

ion of colla

teral estoppel is reviewe d de novo. Osborne v. Stage (In re Stage) , 321 B.R. 486, 491 (B.A.P. 8th Cir. 2005).

A bankruptcy court’s denial of a m otion fo rnew trial, or to a lter or a mend a judgm ent, is reviewed with deference and will not be rev ersed abs ent a cle ar abuse of discretio n. Browder v. Director, D ep't of Co rrect ions , 434 U.S. 257, 2 63 n.7 (1978); Guy v. Danzig (In r e Danzig ) , 233 B.R. 85, 93 (B.A.P. 8th Cir. 19 99). “An abuse of discretion occurs if the courtbases its ruling on an erroneous view of the law
or on a clearly erroneous assessment of the evidence.” PW Enter., I nc. v. Kaler (In

re Racing Serv s., Inc.) , 332 B.R. 581, 584 (B.A.P. 8th Cir. 2005).

Becausethe order

denyin g the debtor ’s m ot ion to alter or am end and the underlying order

granting the motion to dismiss have both been appealed, our review of the merits of t he dismissal order will b e dispos itive un der the circu mstances.

III. D iscussion

As noted above, the merits of the order granting the motion for reli ef are n ot before us. The issue

on appeal i s whether

the bankrup tcy c ourt proper ly dism issed the debt or’s adversar

y proc eeding on the

basis of collateral estoppel. This deci sion will
necessar ily entail a r uling on the va

lidity of the local rule because the bankruptcy court, in di smis si ng th e ad ver sar y pro cee di ng , de ter mi ned that the relief order encompassed

a finding th at the loca

l rule is valid. In the

mem orandum opinion on the motion to alter or

ame nd, the court dec ided that is sue again. Theref ore, it f orms t he basis for t he appeal an d must be dealt with.7

The deb tor con ced es t hat Reg enc y w as e ntitled to relief fr om sta y for cause based on lack of adequate pr otection a s a result of her failure to ke ep t he vehicle insured. However, the debtor argued in opposition to the motion for relief that the only way Regency could have legally

taken posse ssion of thevehicle pr ior to obtaining stay r elief is if the local rule is val id. She c ontends that the local rule is not valid, and that the

judge dealing w ith the motion for relief fr om sta y did not rule on that issue in the

context of

the m otion for relief, yet a different judge de aling with the adversary proceeding used the relief ru ling to colla terally estop her from

pursuing the issue in the adver sary proceedin g. The jud ge dealing with the a dversary proceeding held that the validity and legitimacy of the loca

l rule were im

plicitly ruled on by the order granting Regency relief f rom the stay, although the judge did n ot address the meri ts of the de

btor's ar gument s until rulin g on her m otion for ne w trial.

Itis clear from the recor d that a stay v iolation did

occur, and the violation was atno time addresse d by

the bankrup tcy c ourt. The violation occurred when Regency repossessed the vehicle before obtaining a court order au thorizing i t to do so. T he debtor could have filed a m

otion for sa

nctions, a t which poin t the court coul d have dete rmined

that a viola

tion had occ urred and

the violati on was wi llful but the violation was excu sed by o peration of the local rule. H owever, no such dete rmina tion was made.

The onl y stated bas is for gra nting the re lief fro m sta y, a ccording to the transcri ptof the hea

ring, wa s the debtor ’s fail ure to have

three m on th s’ wor

th of prepaid insuranc e in place. After Regency’s counsel explained to the bankruptcy judge the lack of

insurance

as the basi s for the moti on, the fo llowing exc hange
occ urre d be twee n th e jud ge a nd t he d ebt or’s att orn ey: [DEBTOR’S COUNSEL] : Well, Your Honor, m y client pays for her insurance the way she uses it, one month at a time.

. . .8

THE COURT: Well, unfortunatel y the local r ule doesn’ t allow y

our client to do that. [DEBTOR’S COUN SEL] : Doggone th at. She just believes s he does n’t want to have money tied up in insurance. T HE COURT: I un der sta nd. She h as muc h be tte r us es fo r th e mone y. She probab ly has it invested somew here, r ight? [DEBT OR’S COUN SEL] : Well, now she is u sing it for taxis. THE COURT: Okay. I’ll grant the moti on for relie f. Thank you. . . .
Tr. of June 5, 2006, at3:10-23 (A ppellant’ s App. at

122). Th e bankruptc y jud ge could and did grant rel ief for c aus e without v alidating t he local r

ule. There was n o discussion

of or appa

rent rulin g on the debtor’ s objections based on the validit

y of or Reg enc y’ s co mpliance with the local rule, so the subsequent dismissal order w as erroneous ly

based on a finding which had not bee n made . For tha t reason, it should be rever sed and re mande d to the bankr uptcy c ourt for f

urther co nsiderati on.
The broader s cope of th e appeal c oncerns the applicati on of the doc trine of collateral estoppel. In ruling on Regency ’s m otion to dism iss the adversary , the bankruptcy

court base d its decisi on on the prop osition that Regency did not violat e the autom atic stay

because i ts reposse ssion of the vehicle was authorized by the court order granting relief. Regardin g the debtor ’s asse rtion that R egency did not com

ply with the local rule

because it did not fi le its aff idavit in supp ort of the motion with the motion as required by th e local r

ule, thecourt foun d that the la te filing of

the affidavi t not only w as suffic ient, but

it also bene fitted the

debtor because the court scheduled a hearing on the motion, which it would not otherwise have done:
[The debtor] argues that

. . . R egency failed to compl

y wit h the local

rule in that it di d not file with the motion an affidavi t establish ing the fac ts asserted in the m otion. How ever, R egency did file a

n affidav it supporting

its mo tion prior t o the hear ing and befo re the ent ry of the order granting it s motio n. Had R egency filed the affidavi t with the motion, it would, under the t erms of the rule, ha[ve] been entitled to stay relief without he aring. A s it was, debtor obtained the benefit of a court9

hearing on the m otion. De spite debtor ’s appa rent contention to the con trar y, relief w as grante d t o Regency predicat ed solely

upon its compliance with and de

btors’ failureto com

ply wi th Local Rule 4070[- ]1[D.] In its motion, Re gency focused sol ely upo n the provisi ons of the rule as jus tificat ion for the relief s ought and did no t request r elief fo r other cause. In addition, the transcript of the hearing reveal s that th e only argum ent made, abbreviated a s it was, centere d on whethe r debtor had compl ied with th e provision o f the rule with the insurance she had obtained. Accordingly, had Regenc y not c omp lied with t he rule, it would not have be en entitle d to relief from stay. Debtor

raised this very issue in her response. It

was therefore ne cessaril

y over ruled by the Court in g ran tin g th e Mo tio n fo r Rel ief f rom St ay. Tr. of Oct. 10, 200 6, 8:6-9: 5.

The bankruptcy

court held

on this basis that the is sue of Regency’s com

pliance with the local rule had be en actually liti gated, w as final, and was no t subjec t to collateral attack. The bankruptcy court applied the same reasoning in rej ec ting the debt or’s argum ent that the local rule is inconsistent with § 362(a). The cour t made the
same findings re garding the effect of the re lief orde r in

its me mora ndum opinion on the motion to alter or amend.
By assuming that the bankruptcy judge who ruled on the motion fo r relief imp licitly held that th e local r

ule was va

lid, the j udge who ruled on the de bt or’ s motion to reconsi der reli ed o n what he c onsidered t he imp licit rej ection of t he debt or’s c ontenti ons regar ding the sta

y viola tion and the rule’s validity in using collateral estoppel to bar the debtor from going forward with her adversary proceedin g.
That approach, howev er, gives too muc h weight to the underl ying or der for relief from stay . The stated cause for granting relief was th e debt or’s failureto have three months of insurance in place. The ban kru ptc y j udge did not in any manner10

address the debtor’s affirma tive defenses regarding the local rule and st ay viol ation. Beca u se it is uncle ar wheth er the deb tor’s a rguments were

in fact overruled by

the order granting relief from the stay , collateral estoppel should not have been employed against her.

The collater

al estoppel

doctrine b ars reli tigation of a previous l y resolved f actual issue in a subsequent proceeding. A prior finding is conclusive i n al l subsequent

proceedings if it mee ts five re quirem ents: (1) t he party sought to be precludedwas a pa

rty, or in privit

y with a party , to the previous proc eeding; (2) the current is sue is ide ntical to that involved in the prior proceeding; (3) the issue was actually litigated; (4) the issue was determined by a valid

and final j udgmen

t; and (5) the determination was essenti al to the jud gment. Anderson v. Genuine Parts Co., Inc. , 128 F.3d 1267, 1272- 73 (8th Cir . 1997); Sells v. Porter (In re Porter) , ___ B.R. ___, 2007 WL 2736 541, at *2 (Sept. 21, 20 07).

In the m emorandum opinion on the debtor’ s motio n to alter or ame nd, despite ruling that the debtor wa s estopped f rom l itigating th e local r

ule’s validity, the court neverthel ess addresse d the m erits of the debtor’ s argum ent in that r egard and found that the loc al rule w as not inconsistent with § 362 because the local rule authorizes creditors to obtain retroactive relief from the stay comm ensurate with § 362(d).

Whether a local ban kruptcy rule i s in confl ict wi th a federal rule is a legal question subject to de novo revi ew. McGowan v. Ries (In re M cGowan ) , 226 B.R . 13, 16 (B.A. P. 8th Cir . 1998). The stand ard for evaluating the validity of a local rule was recently setout by th e Eighth

Circuit in United St ates v. M ink , 476 F.3d 558 (8th Cir. 2007) (finding a

Nebraska rule of criminal procedure to exceed the scope of federal law):

When

as sessi ng whether

a local r

ule is valid , courts “

have confined their analyses to four inquiries: whether

the rule c onflicts w ith11

an Act of C ongress; w hether the

rule conf

licts wit h the rules of procedure promulgated by [the Supreme Court] ; whether th e ru le is constitution ally

infirm ; and

whether the subject matter governed by

the rule is not within the power of a lower federal court to regulate.” Frazier v. Heebe , 482 U. S. 641, 6 54, 107 S. Ct. 2607, 96 L . Ed. 2d 557 (1987).
Mink , 476 F.3d at 564.

The McGowan

case spec ifically

addresse d the validi ty of a local b ankrupt cy rule, an d the B.A .P. se t out the fol lowing sta ndard:
As a gene ral ruleof law, any local rule

of bankruptcy procedure that conflicts with a

federal rule of ba

nkruptcy procedur e is invalid

and of no effect. In re Falk , 96 B.R. 901, 903 (Bankr. D. Minn. 1989) (en banc). A local r

ule “ may only be upheld if ( a) it is co nsis tent w ith the Ban kruptcy

Cod e in th at i t d oes no t ‘a bri dg e, e nl arg e, o r mo dify an y substantiveright,’ as required by 28 U.S.C. § 2075 and (b) it is ‘a matter of procedur e not

inconsistent with’ the Bankruptcy Rules as required by Bankruptcy

Rule 9029.” Id. at 9 04. If a local r ule fails either pr

ong of the two-prong ed test, it i s invali d. Id. “Consistent is defi ned a s ‘coexis ting and showing no noteworthy opposing, confl ic ting, inharm onious, or contradictory qualities o r trends’ or ‘j ointly assertab le s o as to be true or not contradictory.’” Id. at 905 (quoting Webs te r' s [T]hird New International D ictionary 484 (1976)).
McGowan , 226 B.R . at 19.
Regency specific ally

did not request retroactive relief

from or annulm

ent of the sta y, presumably beca

use under the provisions of the local rule such relie f would necessaril y be retroactive

.
The debtor a rgu es that the local rule

eases the

restric tions on obtaining retroac ti ve relief f

rom st ay in t

he face of case l aw that r equires a showing of4 The Bankruptcy Code, at 11 U.S. C. § 362(a), protects p roperty of the debt or and of the b ankruptcy

estate f rom c reditors’ collectio n efforts : (a) . . . [ A] pet

ition filed unde r section 3 01, 302, or 303 of this title . . . operat es as a sta

y, a pplicable to all entit

ies, of – (1) the com

menc emen

t or continu ation, inc luding the issuance or employm

ent of process, of a judicial, adm inistrative, or other act ion or proc eeding against the deb tor that w as or could (continu ed...) 12 “com pelling circum stances”before retroactive rel ief may be granted. LaBarg e v. Vierkan t (In re V ierkant) , 240 B.R. 317, 325 (B.A.P. 8th Cir. 1999) (cit ing Soares v. Brockton Credit U nion (In re

Soares) , 107 F.3 d 969, 976 (1st Cir. 1997)). In Soares , the First Cir

cuit Court of A

ppeals expl ained that

the autom

atic stay is a fundamental protection

for debtor s and should be set aside only fo r good rea son. “Undoing thestay retroactiv ely should req uire a measurably grea ter showin g.” 107 F.3d at 977. [I]f congressio nal intent i s to be honore d and the int egrity of the autom atic stay pres erv ed, retr oactive relief shou ld be the lon g-odds exception, not

the gener al rule. In our view , only a strict s tandard w ill ensure the accom

plishm ent of the se o bjectives. . . . W e conclude, therefore, that although courts pos sess a lim ited discr etion to gra

nt retroac tive relief from the aut omatic stay, instan ces in wh ich t he exercise of that discretion is justifiedare likel y to be few and far between

. Id. The circuit court went on to state that appropriate circumstances f or such relief must be determined on a ca se-by -case ba sis. It ga ve two exa

mples of “u

nusual and unusually compelling” facts which would likely support retroactive r elief: a creditor's inadvert ent viol ation of t he stay and a deb tor’s bad fait h. Id.

We agree with the debtor that Local Rule 40 70-1.D. enlarges creditor s’ right s beyond the scope permitted by § 362 and Federal R ule 4001(a). 4 The practical effect4 (... continued) have been com

menc ed before

the com menc emen

t of the ca se underthis title, or to recover a claim against the debtor that arose before the comm encement of the case under this title;

. . . (3) any a ct to obtain possession of

property of the est ate or of property from the estate or

to exerci se control

over prope rty of the estate [.]
Federal Rule of B ankruptcy

Procedur e 4001(a) provides: (a) Relief from stay; prohibiting o r conditioning the use, sale , or leas e of p rop erty. (1 ) M otion. A motion for relief from an automatic stay provided by the Code or a m otion to prohibit

or condition the use, sale, or leaseof proper

ty purs uant to § 363 (e) shall be ma de in accordance wi th Rule 90 14 . . . . (2) Ex p arte relief. Rel ief from a stay under § 3 62(a) . . . may be grante d without pr

ior notice only if (A) it clearly a

ppears from specific facts shown by affidavit or by a verified motion that immediate and irrepara ble injury, loss , or dam age will result to the movant before the adverse party or t he at torney

for the adverse party

can be hea

rd in oppo s itio n, and (B) th e movant ’s attorney certifi es to the co urt in

writ ing the effo rts , if a ny, which have been m ade to givenotice and the reas ons why

notice shoul d not be required. The party obtaining relief under this subdivisi on and § 362(f) or § 363 (e) shall imm ediately give oral notice thereof to the truste e or debtor

in possession

and to the de

btor and forthwit h mail or otherwise transm it to such ad verse par ty or parties a copy

of the order granting relief. On two da ys notic e to the p arty who obtained relief from the stay without notice o r o n shorter notice to th at party

as the cour

t may prescrib e, the a dverse party may appear a nd move reinstatement

of the stay

. . . . In that (continu ed...) 134 (... continued) event, the court shal l proceed e xpeditiously to hear a nd determ ine the mo tion.

14 of this local rule

is to perm

it a cred itor to obtain propert

y of th e estate or

of the debt or without permission from

the court a

nd without e ven filing a

motion , in

derogation

of the limited ex parte relief allowed under Rule 4001(a). The local rule d oes not explicitly say c omplia

nce with t he rule au tomat ically grants re lief, a

nd it does require the filing of a

motion to obtain a j udge’s or

der for r elief, but the upshot

is t hat the creditor can avail itself of instant sel f-help relief f

rom t he stay by taking posse ssion of the coll ateral without fi ling a m otion in adva nce or fol lowing the procedure for receiving ex parte relief.

The local rule

therefor e violates bo th pron gs of the te st set out in McGowan because its enlar

geme nt of cre ditors’ rights is inc onsistent w ith the Cod e and the Federal Rules. For th is reason, we find the W estern D istrict of Missouri’ s Local R

ule of Prac tice 4070-1 .D. inv alid.

IV. Con clusion

The bankruptcy court’s order granting Regen cy’ s m otion to dism iss the adversary proceeding is rever sed. The matt er is rem

anded for further p roceeding s consistent with this opinio n.