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?

Answer 1

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 the 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.