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If a motion for relief of stay has been granted in a Chapter 13 case is there any defense?
The best approach would be to work with the Creditor's attorney to come up with some kind of agreement.
You can also move to have the stay reimposed or ask the Judge to reconsider lifting the stay.
If the motion for relief from stay has been granted, you no longer have a defense. The time to raise a defense would have been right after the motion was filed by obtaining a hearing date and opposing the motion. The creditor is not required to negotiate with you, but you should at least try again.
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Answer The exact procedure will vary depending on the local procedures of the local bankruptcy. Some bankruptcy courts have mandatory forms while others have opt…ional (but helpful) forms that show you everthing you need to do. You have to file and serve notice of the motion to the debtor or debtor's attorney and pay a filing fee. You will need points & authorites (legal arguments) to support the motion. You will also need declarations to prove that you have grounds for the motion (i.e. my tenant isn't making payments). Some cours grant the motion automatically if the debtor doesn't object. Others require the moving party to obtain a hearing date and notify the debtor of the hearing date. If the debtor objects and files opposition, you can file a rebuttal called a reply. If the motion is granted, you should have a formal order signed by the judge so you can take whatever action you are requesting.
Yes, so long as you keep making the mortgage payments. If you stop paying, eventually the creditor will be allowed to foreclose on the property.
Answer When you file for bankruptcy, you are protected by the "automatic stay" which prohibits creditors from taking action to collect the debt or from taking you…r property. In some cases, the creditor will ask the court for permission to continue efforts to collect the debt by requesting relief from the stay. This is usually done by a creditor who wants to continue foreclosure proceedings on a house or seek repossession of a vehicle. Landlords will also file for relief from stay to evict a nonpaying tenant.
The same way you file any court document. If you are not an attorney or other electronic filer, you must take the objection down to the clerk's office and offer it to a clerk …for filing. Bring a copy if you want your own stamped copy. You have to send a copy to the attorney for the filing entity.
You file an objection to the Motion for Relief From Stay, setting forth the reasons the motion should not be allowed. If you do not file a response, the court will allow the m…otion after the time to reply has passed.
Answer Motion for Relief of Stay - a motion filed with the Bankruptcy Court from a creditor that asks the court to allow the creditor to proceed with any co…llections upon property that was put on hold due to bankruptcy Withdrawl of motion for relief - creditor tells the court "never mind" basically on the motion that was filed for a variety of reasons. An example of a reason to withdraw would be that a motion for relief was filed in error because a debt is actually current, not in default.
Sometimes creditors are able to have the automatic stay (which stops most collection efforts as soon as a bankruptcy petition has been filed) removed or lifted so that they ca…n exercise their state court collection rights, just as if there was no bankruptcy in the first place. With some minor exceptions, granting of a relief is only provided to secured creditors who can prove certain elements showing that the creditor that's moving to lift the stay is more entitled to the collateral than the debtor and/or other creditors. More specifically, if a secured creditor can prove either (1) "cause" to lift the stay (typically boils down to proving that their position in the collateral is at risk- which the Bankruptcy Code termed as "lack of adequate protection"), or (2) that (i) the debtor has no equity in the collateral, and (ii) the collateral is not necessary to an effective reorganization. Once proven, the court has to lift the stay and allow the creditor to take back its collateral.
Automatic Stay is the thing that is automatically done when you file bankruptcy. It protects the assets of the bankruptcy estate. It prevents collection attempts. It… stops foreclosure / evictions. A motion for relief from automatic stay is filed by a creditor when they want to foreclose, continue foreclosure, eviction, reposession, etc. Speak with an attorney about your specific situation. If you can not find an attorney, contact your local Bar association and they will refer you to one.
A stay is like a legal "hold" placed for a purpose. If the party that is "held" objects to the "hold" placed on it by a court, that party can petition the court for relief fr…om the stay. They can ask, can make a motion, that the stay be lifted. That's the motion of relief from the stay. If the court then reviews the motion and decides not to "change its mind" regarding the reason it issued the stay, the court will dismiss the motion for relief from the stay. The stay will remain in place.
Answer Bankruptcy protection remains in place and the creditor who was denied the stay will remain a part of the bankruptcy and cannot attempt to collect t…he debt owed.
Then the creditor can proceed with collection the debt/foreclosing on the property.
Automatic stays occur under section 362(a) of the Federal Bankruptcy Code. Relief from the stay can be granted under Section 362(d). Usually it is secured creditors who want t…o foreclose on a piece of property and the stay keeps them from foreclosing.
That the creditor's interest in the property is somehow "adequately protected." Typically, by making payments.
What you have to consider is whether or not you should just file a new case. If you were to be able to reopen a closed case you would have to be prepared to make up all the mi…ssed plan payments. If you are not able to pay all the missed plan payment you may as well file a new case and start from scratch. If you were unable to make plan payments because you no longer have a source of income you may be ineligible to go into another case and reopening a closed case would not make much sense either.
Answer I don't know if the procedure varies from state to state, but in Indiana one normally files a Motion to Sell Real Estate (or whatever property) with the Bankr…uptcy Court. The motion normally lists what is being sold, what it's value is, how much it's being sold for and other sale terms, why it's being sold, etc. Then, the Court verifies that a fair price is being received for the property and also orders where the proceeds of the sale will go. If the property being sold is claimed as exempt on Schedule C, the debtor usually retains the funds. If the property is not claimed as exempt, then the proceeds of the sale normally go into the Chapter 13 Plan. Sometimes even if the prperty is claimed as exempt, the court will make the debtor pay the funds into the Chapter 13 Plan but will then let the debtor shorten the length of the Chapter 13 Plan. There are also collateral issues with selling something in a Chapter 13 the court will look at, such as what the sale does to disposable income. For example, if a debtor sells his house which had a mortgage payment of $1,000.00/month, then rents something for $600.00/month, the court will say that the debtor's disposable income increased by $400.00/month so the Plan payment will go up $400.00/month (since a debtor normally has to offer all of his or her disposable income to the Plan). Please note that nothing in this posting or in any other posting constitutes legal advice; this is simply my understanding of the facts, which I do not warrant, and I am not suggesting any course of action or inaction to any person.
Can you become current on your mortgage payments after a motion of relief has been requested from the courts to avoid foreclosure during Chapter 13?
Generally, yes. Have your Attorney contact the attorney for the other side and discuss the situation. Most of the time, you can object to the motion and work something out th…e week before the hearing. Word of advise... Make sure you have an attorney. The attorney for the bank does NOT want to hear from you personally.
How do you make a motion to appeal the relief of the automatic stay granted by the court even though you are past the 10 day deadline?
I can't answer this question directly since I do not do appellate work, and I'm not well versed in the details of appellate practice. So, I do not know if the expiration of t…he 10 day deadline to appeal truly burns all of your appellate bridges or not. And, to be honest, I think you'll have a tough time getting a good answer to that question without going to see a lawyer. However, as an alternative to appealing a decision, some debtors who are in the situation of having the stay lifted can still keep whatever collateral is in issue by negotiating with the attorney for the creditor to let the debtor keep the collateral so long as certain repayment criteria are met. For example, some creditors, even those who have relief from the stay, might agree to let the debtor resume monthly payments and keep the collateral so long as the debtor does not miss any more payments and so long as the debtor catches up the arrearage (and attorneys fees and costs) with additional monthly payments over 4 or 6 months. Of course, creditors don't have to agree to anything, so the debtor does not have a lot of bargaining power. The sweeter the debtor can make the deal, the better. Another alternative some debtors in that situation pursue is to file a Motion to Reinstate the Stay with the Bankruptcy Court. This basically requests that the Court reinstate the stay and indicates how the debtor will ensure that future payments are maintained and explains how the debtor will quickly rectify the problem which gave rise to the relief being granted. Many times, however, the debtor needs to do something compelling to get the Court to reinstate a stay, such as provide proof that the debtor did not get notice of the creditor's Motion for Relief from Stay in time to Object, or ensure that whatever the reason for the relief being granted was will be cured immediately (such as the debtor showing up to the hearing on the Motion to Reinstate the Stay with a check for the entire amount of the arrearage, etc.). Of course, no matter what the debtor does, the Court may or may not grant a Motion to Reinstate the Stay. Another thing a debtor can do is seek refinancing from a new lender to pay off the creditor who has relief from the stay. Most states grant a debtor the right to "redeem" property, which means that as long as debtor pays off the entire amount of the indebtedness PRIOR to the collateral being sold, the creditor is required to tender title to the debtor. It should be noted that one must get permission from the Bankruptcy Court prior to getting a new loan. It should also be noted that a debtor must wait at least 180 days after voluntarily dismissing a Chapter 13 once a Motion for Relief from Stay has been filed in that case before re-filing a new case to get a new stay. See 11 U.S.C. 109(g)(2). There are also other options which may be available depending on the other facts and circumstances of the case, but one needs to see a lawyer to really get a good picture of what courses of action might be advisable. Pro se Chapter 13's just don't seem like a good idea to me, and I'm not just saying that because I'm a lawyer. Please note that nothing in this posting or in any other posting constitutes legal advice nor establishes an attorney-client relationship; this is simply my understanding of the facts, which I do not warrant, and I am not suggesting any course of action or inaction to any person.