How To Fight A Motion For Relief From Automatic Stay

On the day that you file for Chapter xiii bankruptcy, an automatic stay is issued confronting your creditors and remains in effect until the terminate of the repayment term. The automatic stay does three things. First, it stops collectors from contacting you lot. Second, it buys you time to develop your repayment plan. And, third, it freezes your avails, so no one creditor tin can take hold of them all.

Motion to Lift an Automated Stay

In some situations, a creditor might file a motion to lift the automatic stay. This would let them to resume collection deportment.

One situation would be if you were behind on your payments for a secured loan, such equally a mortgage or auto payment, and the loan amount was greater than the value of the home or motorcar. Your creditor in this circumstance is exposed to financial loss, and if you can't make the payments current, the bankruptcy courtroom may lift the automatic stay.

Another state of affairs where you might encounter a movement to elevator an automatic stay is in an eviction. Your landlord might ask to lift the stay and then he can start or keep the eviction process while you lot are in bankruptcy.

Served with a Motion? What to Practice First

If one or more than of your creditors asks for relief from stay, you'll know. This is because the law requires that y'all receive notice of the request and hearing date.

Information technology is of import that you respond to the notice inside 14 days of existence served. If yous fail to reply within the designated timeframe, the court may lift the stay by default.

How To Fight A Motion To Elevator An Automatic Stay

In that location are two fundamental ways you can fight a motion to lift an automatic stay for Chapter xiii. The types of objections you can make are procedural and substantive. A procedural objection challenges the way the motility was filed, and a noun objection challenges the substance of the motion itself.

Procedural Objections

A procedural objection is i where y'all challenge the motion considering the creditor did not properly follow the rules. For instance, you read above that the creditor is required to serve y'all with find of the motion. If they didn't properly serve you or other required parties—including your attorney—y'all may exist able to challenge the motion.

In another example, say you were non given aplenty notice of the hearing engagement. You could brand a procedural objection based on the fact that the creditor did not requite you plenty time to prepare for the hearing.

Finally, the documents that you lot are served must include a detailed clarification of the property and its value, as well as the amount of the loan, the amount owed, and the original and electric current monthly payments. A failure to attach these evidentiary documents could spur a procedural objection.

Substantive Objections

The second blazon of objection that y'all may make against a motion for relief is a noun objection. This may be more challenging equally information technology requires a thorough agreement of the Bankruptcy Code.

Imagine that your mortgage lender wants to foreclose on your home and files to lift the stay. You lot may exist able to object to the movement on the grounds that your reorganization plan has been confirmed or is probable to be confirmed before long, and that the holding is provided for in the plan. You might also be able to object if y'all have applied for or received a loan modification agreement that lowers the monthly payments on your mortgage.

The Burden of Proof

If yous are fighting a motion to lift an automatic stay for Chapter xiii, be aware that the burden of proof is on yous. This means that yous must provide detailed and specific supporting documentation for every objection and merits that you make.

Get Help Fighting A Motion to Lift the Automatic Stay

When a motility to lift the automatic stay in a Chapter xiii bankruptcy has been served, your financial futurity is at risk. You run the chance of losing your home, vehicle, or other important assets. If you demand assistance fighting this motion or have whatever other questions surrounding Affiliate 13 bankruptcy, contact the law offices of Michael J. Benson for your gratis consultation.

Source: https://bensonlawfirms.com/fight-motion-lift-automatic-stay-chapter-13/

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