Bank Fraud Victims 

 

Motion to Lift Automatic Stay

 

 Description

 

What is a Motion to Lift the Automatic Stay? A creditor may mail you a copy of document with a title such as Motion "to Lift" or "to Remove," or "for Relief from" the Automatic Stay, or a similar title.  The section of the code dealing with the automatic stay (362) will usually be included in the title or elsewhere in the document.  This motion means that the creditor is attempting to take the property listed in the document.

 

Note:  The documents which you receive will usually include a Notice describing the motion, and, in many cases, the order which the creditor is asking the court to enter.  You have only 15 days from the mailing of the notice in which to respond.

 

What can I do about it?  Possible responses to the motion depend upon the Chapter under which you have filed and the kind of property in which the creditor holds a security interest.

 

Chapter 7

Chapter 13 - Real Property (Home, Land)

Chapter 13 - Vehicles

 

CHAPTER 7

 

The stay under 362 prevents creditors from taking taking property such as your house, car, and personal possessions.  The stay is not intended to allow you to keep secured property in Chapter 7.  You are entitled to keep secured property only if you make all of the payments on loans secured by the property when the payments are due, unless the creditor agrees to other arrangements.  The creditor may file the motion because of payments you missed before or after the case was filed, or if you have failed to maintain insurance on the property or if you have done or failed to do anything else in violation of the contract.

 

If the creditor asks the court to remove the stays, as it is asking in the motion, the court is almost certain to lift the stays.  While it is possible to respond to the motion in an attempt to delay the creditor's action, this can be done only at additional expense and it is ordinarily not worth that expense.  As stated in the Agreement for Legal Services, this office does not respond to these motions unless you meet with your attorney and make arrangements for these services.

 

If you want to keep the property described in the motion and are not able to immediately make all required payments, you should immediately contact your attorney to discuss the possibility of converting to Chapter 13.

 

CHAPTER 13 - Real Property (home/land)

 

It is the stay under 362 which allows you to keep this property. Once the stay has been removed, the creditor may proceed with foreclosure.  If a trustee's sale was previously scheduled, the sale may be conducted immediately upon the removal of the stay without any further notice to you.  If the stay is lifted, you will not be able to keep this property unless you pay all missed payments (including any which were to be paid by your Chapter 13 Plan), all of the creditor's attorneys' fees and costs, and all collection and foreclosure costs.  This payment would have to be made in cash before the foreclosure sale date.  If a sale date was previously scheduled, the sale date may have been continued so that the sale can be conducted immediately upon the removal of the stay without any further notice to you.

 

It may be possible to prevent the stay from being lifted by filing a response to the creditor's motion.  You have only fifteen (15) days from the service of the notice of the motion in which to file the response.  If you wish to file a response, you must schedule an appointment with your attorney immediately.  If regular appointments are not available, ask for an emergency office or phone appointment on a motion to lift stays.

 

If you have not missed any payments to this creditor, you should bring canceled checks or other evidence showing that you have made each monthly payment from the time that your case was filed.  If you have missed payments, we may be able to propose a stipulation with the creditor to allow you to make the regular payments plus an additional amount to catch up the arrearage.

 

Unfortunately, the creditor's action will cause you to incur additional fees.  Since this matter was not originally contemplated in your case, there will be additional attorney's fees.  The charge to file a response to the motion is listed in your fee agreement.  Additional charges will apply if the hourly charge for services exceeds this amount.  These fees should be paid before your response is filed. The creditor will also expect you to pay its attorneys fees and costs if you keep the property.

 

To keep the property, you must schedule an appointment with your attorney immediately. You should schedule this appointment right now, even if you cannot pay the response fee at this time. If you do not talk with your attorney, a response will not be filed and you may lose the property.

 

CHAPTER 13 - Vehicles

 

It is the stay under 362 which allows you to keep this property.  Once the stay has been removed, the creditor may proceed to repossess and sell the property in accordance with applicable non-bankruptcy law.

 

It may be possible to prevent the stay from being lifted by filing a response to the creditor's motion.  You have only fifteen (15) days from the service of the notice of the motion in which to file the response. If you wish to file a response, you must schedule an appointment with your attorney immediately.  If regular appointments are not available, ask for an emergency office or phone appointment on a motion to lift stays.

 

The most common reasons for motion to remove the stays to be file on property being paid for in the plan is a default in plan payments or a lapse in insurance.  If you are behind in plan payments, it will be necessary for you to catch up in plan payments in order to prevent the lifting of the stay.  In some cases, this may be done by the filing of a motion to modify your plan. If your insurance has lapsed, you must obtain comprehensive coverage on the vehicle naming the creditor as a loss payee, and provide evidence, such as the policy cover page, to the creditor.  Even if you address the issue that caused the creditor to file the motion, you must still file a response to the motion if you seek to prevent the lifting of the stays.

 

Unfortunately, the creditor's action will cause you to incur additional fees.  Since this matter was not originally contemplated in your case, there will be additional attorney's fees.  The charge to file a response to the motion is listed in your Agreement for Legal Services.  Additional charges will apply if the hourly charge for services exceeds this amount.  These fees should be paid before your response is filed.  The creditor will also expect you to pay its attorneys fees and costs if you keep the property.

 

To keep the vehicle or other property, you must schedule an appointment with your attorney immediately. You should schedule this appointment right now, even if you cannot pay the response fee at this time. If you do not talk with your attorney, a response will not be filed and you may lose the property.

 

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