IN RE SAMMATARO

de Jesus, J.

This appeal challenges the bankruptcy court's ruling granting a motion to annul the automatic stay at the conclusion of a nonevidentiary hearing. Appellant argues the court abused its discretion by refusing his request for a second hearing and ordering the annulment without receiving documentary and testimonial evidence. We affirm, finding a bankruptcy court need not hold an evidentiary hearing before adjudicating all motions under section 362 of the Bankruptcy Code, and in this case, the record shows admitted facts obviated the need for further hearings.

The bankruptcy court's order annulling the automatic stay under 11 U.S.C. § 362(d) is a final order. 3 Collier on Bankruptcy, § 362.12, pp. 362-117 (15th ed. rev.). We have jurisdiction under 28 U.S.C. § 158(a)(1) and (b). Since Appellant challenges the bankruptcy court's ruling on grounds of factual and legal error, we review for abuse of discretion. In re Montclair, 177 B.R. 663 (9th Cir. BAP, 1995).

Appellant first challenges the ruling by claiming all hearings to consider motions filed under 11 U.S.C. § 362 (d) must be evidentiary hearings. The law provides the Court may resolve a motion to terminate, annul, condition or modify the automatic stay "after notice and hearing". 11 U.S.C. § 362(d). Section 102(1) of the Bankruptcy Code defines "after notice and a hearing" as ". . . after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances . . .". (Our emphasis) These two sections allow a bankruptcy court leeway in fashioning the notice and the hearings given and held in section 362 motions to suit the needs of each case, as long as there is no abuse of discretion, or deprivation of procedural due process. Epstein, Nickles White, Bankruptcy Vol. 1 § 3-31 p. 334 (1992); In re Drislor Associates, 110 B.R. 937, 940 (D.Colo. 1990). Hence, the law does not require hearings, whether evidentiary or otherwise, before the court adjudicates a section 362 motion.

The second challenge to the ruling claims there are two disputed material facts requiring an evidentiary hearing. First, Appellant avers arrears are not owed and second, Appellant states the plan incorporates an agreement for curing arrears which precluded Appellee's motion.

Our review of the record on appeal and the transcript of the hearing convinces us the parties agreed to a series of payments and their application which obviated the need for an evidentiary hearing. These show Appellant was four months behind in post petition payments to Appellee. These also show Appellant's claim to an agreement is absurd. Appellee could not have agreed that the Chapter 13 plan cure the admitted arrears because these had not yet accrued on the dates the plan and the amended plans were filed.

Under these circumstances, the court's ruling is correct. An evidentiary hearing was not needed because the admitted facts did not justify a continuance of the stay in this case.

The Bankruptcy Court's order is AFFIRMED.