How do you file for a motion for relief from the automatic stay in a chapter 7 bankruptcy?

Answer 1

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.

Answer 2

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 your 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.

Answer 3

If you are talking about a motion for relief from stay in a bankruptcy case, the exact procedures and forms vary by district. Most local bankruptcy courts will have detailed rules post on their website. Some courts let you file the motion leave it up to the debtor to object to the motion and request a hearing. Others require the moving party to schedle a hearing with the court first.

Answer 4

Relief from the automatic stay may be obtained by filing a motion with the bankruptcy court. In Cleveland, the motion must be accompanied by a notice informing all creditors of a hearing on the matter and the time limit within which objections to the motion must be filed. At the same time, a proposed order granting the relief must also be filed with the court.

Answer 5

You draw up the motion and file it in the appropriate court, sending a copy to the c. 7 trustee, the U. S. Trustee, the debtor and the debtor's attorney, if any. Only a secured creditor can do this, of course.

Since you had to ask, I suspect you are not entitled to relief from stay. Secured lenders tend to have lawyers who know what to do.

Answer 6

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.

Answer 7

You need to prove you are a secured creditor or are otherwise entitled to proceed with a claim against the debtor.

If you are a secured creditor, you need to prove the debtor has not made any or adequate payments following the filing of the Chapter 7.

If you are entitled to proceed against the debtor by law (student loans, child support orders, criminal reparation orders, e. g.) or because the debt was fraudulently incurred, and the matter is not pending in another court, you may have to litigate your case in the bankruptcy court as an adversarial action. Consult a local bankruptcy lawyer.

Answer 8

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 can 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.