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Debt and Bankruptcy
Home Equity and Refinancing
Bankruptcy Law

What can be done to get a state of stay lifted off a bankruptcy company?


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Answered 2005-04-04 04:42:17

I'm not exactly sure what information this question is looking for, so let me give you my generic "what is a motion for stay" answer, and if you still have questions you can ask a follow up question. Ahem... A Motion for Relief from Stay is what a creditor files with the Bankruptcy Court when they want permission from the Court to repossess or foreclose on some collateral (like a house or car), either because they are upset because the debtor in bankruptcy hasn't done something they said they would do, or because the debtor indicated that they did not want the collateral. Motions for Relief from Stay can be filed in either Chapter 7 or Chapter 13 cases, but I find that they are much more common in Chapter 13's. A common example of when a Motion for Relief from Stay would be filed is if, say, a debtor in a Chapter 13 case is supposed to be paying his or her mortgage outside the Chapter 13 Plan by making direct payments to the mortgage lender, in addition to his or her Chapter 13 Plan that he or she pays to the Trustee. If that debtor misses a mortgage payment, then the mortgage lender would be upset and would file a Motion for Relief from Stay in the Bankruptcy Court, in which they are basically asking the Bankruptcy Court for permission to foreclose on the home since the debtor has failed to make payments. The debtor is given a short time in which to file an Objection (in writing) to the Motion for Relief from Stay with the Bankruptcy Court. If the debtor fails to object, the Motion for Relief from Stay is ordinarily granted and the mortgage lender may begin foreclosure proceedings. If the debtor does object, then different Bankruptcy Courts have different procedures, but normally the Bankruptcy Court sets the issue for a hearing. At the hearing, the mortgage lender normally complains about how the debtor hasn't made payments like they were supposed to, and the debtor normally explains why they missed the payments and how quickly they can get them caught up, and exclaims that they won't get behind again. Then the Court makes their ruling. What happens much more frequently than a hearing is that prior to the hearing, the debtor's attorney and the mortgage lender's attorney agree prior to the hearing on how and when the debtor can become current again, and then the hearing gets canceled so long as the debtor and the mortgage lender are in agreement on how the debtor will get caught up and that the debtor promises to stay current thereafter. If an agreement is not struck between the debtor and the mortgage lender before the hearing, then at the hearing, when ruling on whether to let the debtor keep the home or let the mortgage lender have it back, Courts frequently consider things like whether this is the first Motion for Relief from Stay or if there have been more than one, what the debtor's payment history has been like, what happened to make the debtor get behind, how quickly the debtor can get it caught up, how likely it is that the debtor's method of getting caught up will work, how long the debtor has lived in the home (i.e. Courts seem to give a little more lee-way to debtors who might lose a family home they've had in their family 100 years than they are if the debtor bought the home one year ago and has missed 8 payments in the 12 months they owned it), etc. 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. Visit RossLawOffice.com for more information about bankruptcy.

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