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If a motion for relief of stay is granted for only one debtor what does the other debtor do?
Wiki User
∙ 15y ago
Hard question to answer since...foolish me...I thought CREDITORS asked for relief from stay...a debtor would never want one to be granted and would normally oppose it strongly. (Relief from Stay STOPS the protection of the Court and law that prohibits creditors from proceeding with collection actions, like repossession or foreclosure or garnishment against the debtor). Not understanding that basic difference really means you really should have professional help in the case.
Wiki User
∙ 15y ago
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What are the risks of a debt relief order?
For the duration of the Order, the debtor will be subject to similar restrictions as in bankruptcy. When in a DRO, The debtor must not obtain credit of £500 or more, without disclosing that they are subject to a DRO to the lender. The debtor may not be involved with the promotion or the management of a limited company, without the court's permission. The debtor may not carry on a business in a name that is different from the name under which the DRO was granted under, without telling the people that the debtor does business with, the name which they were granted the debt relief order. Although DRO's are aimed at providing a cheaper method of seeking debt relief, they are not an easy option to get rid of debt and should only be considered when other options, such as debt management are not viable.
What is a motion hearing?
A motion hearing is where the attorney in an adversarial trial argues why his motion should be granted. The other attorney argues her reasons why the motion should not be granted.
What if a Motion for Relief from Stay is only issued for one of the debtors what can the other do?
The other debtor must either make arrangements to pay, modify or otherwise deal with the pre-petition and post-petition arrears and costs and legal fees or be foreclosed upon. A possible action is filing the other debtor's own bankruptcy, if there is not one outstanding, though this will be short-term relief if the second debtor is not able to file a c. 13 with a plan that will address the arrears. The codebtor needs to get an experienced bankruptcy lawyer - and not the same one representing the other debor.
What is ordergranting motion for relief-unopposed order lifting stay?
Sound like someone filed a motion to life a stay, the other party did not oppose the motion, and the court granted it. A stay is an order stopping some action by another person or entity, or stopping the enforcement of a judicial or administrative order.
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 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.
What can be done to get a state of stay lifted off a bankruptcy company?
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.
Creditor was granted relief of stay relief was for repossession and sale of car is the creditor entitle to seek money when their relief was for possession and sale of car only?
The motion for relief from stay only affects the creditor's right to proceed against the property that secures the debt. The creditor's right to be paid any deficiency after sale depends on the kind of bankruptcy. In a 7, no. In a 13, it depends on what the other unsecured creditors are getting.
If you file Ch 13 and your home has been bought under a land contract can the holder of the contract take back the property if you don't stay current?
Just like a mortgage lender, a contract seller of real estate can ask the Court for permission to foreclose on real estate if a debtor in Chapter 13 does not keep the contract payments current. The contract seller would do this the same way a mortgage lender would, which is by filing a Motion for Relief from Stay with the Bankruptcy Court. The debtor has the opportunity to file an Objection to the Motion for Relief from Stay, but normally has to bring the payments current relatively soon (and then keep them current thereafter) to prevail on the Objection. State laws vary widely on what a contract seller may do once the relief from stay is granted, but if the contract seller is granted relief from the stay they would then presumably do whatever the particular State requires for them to regain possession of the real estate. 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.
What happens when a motion for summary judgment is granted against you?
I have found that when this is granted, the other party may file objection to, request to readdress, or appeal the judgement.
How do you file for a motion for relief from the automatic stay in a chapter 7 bankruptcy?
The exact procedure will vary depending on the local procedures of the local bankruptcy. Some bankruptcy courts have mandatory forms while others have optional (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.
My lawyer filed a motion asking for time served which the judge had already granted can he deny the new motion?
If I understand the question - - your lawyer filed a motion asking for something that the judge had already granted?Other than the fact that it sounds like a superfluous motion, it seems unlikely that the judge would reverse himself and take it away.
Can you postpone a motion for issuance of execution?
If you submitted the motion. and it was granted by the court, you cannot then postpone it without filing an amended motion requesting a delay. However, you can withdraw the motion completely which would have the effect of cancelling or nullifying it. ON THE OTHER HAND: If opposing counsel filed the motion and it was granted, the only way you could delay it would be to file your own counter-motion with the court setting forth your legal reason(s) for granting a delay.
