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Relief from Stay

MOTION FOR RELIEF FROM STAY – Fee: $188.00

References:

  • Bankruptcy Code Sections: 362(d), 363, 364, 1201, 1301
  • Bankruptcy Rules: 4001, 7062, 9014
  • Local Rules: 4001-1
  • Court Guidelines: Guidelines for Preparing, Submitting and Serving Orders; Guidelines for Motions for Relief from the Automatic Stay
  • CM/ECF Event: Relief from Stay

When a debtor files for bankruptcy, an automatic stay goes into effect prohibiting creditors from taking any action of any kind to collect a debt. It stops all lawsuits including foreclosures and evictions. It’s against federal law for a creditor to violate the stay. However, creditors have the right to ask the bankruptcy court to lift the stay, which is done by the filing of a Motion for Relief from Stay. Once the motion is filed, the debtor has the right to defend the motion. If the stay is lifted, the creditor may then proceed with its collection efforts, typically completing its foreclosure action.

The local rule amendments which were effective December 1, 2015 included the following amendments to Local Rule 4001-1:

  • Filer must attach a proposed order as an exhibit to the motion unless the relief to be granted in the order is the identical relief requested in the motion.
  • A motion for relief in chapter 7 case cannot be filed under negative notice until after the date first set for the § 341 meeting. • It shall not be necessary to seek relief from the automatic stay for the holder of a secured claim to negotiate with a pro se debtor or with debtor’s counsel regarding potential modifications of the loan.
  • Requires service on seven largest creditors in the absence of a committee.
  • Removes requirement to file certificate of no response or settlement.

AGREED MOTION FOR RELIEF FROM STAY – No Fee

References:

  • CM/ECF EVENT: Relief from Stay (Agreed)

Same as a motion for relief from stay. The motion MUST be “agreed/signed” by all parties (creditor/debtor(s)).

Pursuant to FRBP 4001, remember to include a copy of the proposed order [clearly marked as Proposed or Exhibit] when filing your Motion, Notice and Certificate of Service. Additionally, remember to upload the order in the electronic format using the e-orders program.

MOTION FOR RELIEF FROM CO-DEBTOR STAY – No Fee

References:

  • Bankruptcy Code Sections: 1201, 1301(c)(2)
  • Bankruptcy Rules: 4001, 7062
  • CM/ECF Event: Relief from Co-Debtor Stay

The automatic stay generally applies only to actions against a debtor. However, in chapter 12 and 13 cases, the stay also applies to non-debtors who are also liable on a consumer debt of a debtor, such as a joint credit card, or a car loan co-signed by a debtor’s relative. It is not limited to spouses of a debtor. It applies to any person who is jointly responsible for a debt. Creditors seeking relief to continue their collection efforts against a co-debtor must seek relief under §1201(c) or §1301(c).

Pursuant to FRBP 4001, remember to include a copy of the proposed order [clearly marked as Proposed or Exhibit] when filing your Motion, Notice and Certificate of Service. Additionally, remember to upload the order in the electronic format using the E-orders program.

IN REM RELIEF – Fee: $188.00

References:

  • Bankruptcy Code Sections: 105, 362(d)(4))
  • CM/ECF Event: Relief from Stay

When a creditor’s efforts to foreclose a mortgage have been stopped by several prior bankruptcy filings by the debtor or the debtor’s spouse, the creditor may seek additional relief in a motion for stay relief typically referred to as in “rem relief”. If granted, the order will state that no future bankruptcy filing by the debtor or anyone else claiming an ownership interest in the property will operate as a stay of the creditor’s right to proceed with its foreclosure action.

EXCEPTIONS AND LIMITATIONS TO THE AUTOMATIC STAY; REPEAT FILER REFERENCES:

References:

  • Bankruptcy Code Sections: 362(c)(3) or §362(c)(4))
  • CM/ECF Event: Continue/Extend the Automatic Stay
  • CM/ECF Event: Impose Automatic Stay

If a debtor who files a case had a prior case pending within a year of the filing, the automatic stay terminates 30 days after the petition date unless it is extended by the court. The hearing on a motion to continue/extend the stay must be completed before the 30-day period expires. The order extending the stay does not have to be docketed within 30 days as long as the hearing is held within 30 days from the filing. If a debtor who files a case had two or more cases pending prior to filing that were dismissed, the automatic stay does not go into effect at all unless a motion to impose the stay is filed and granted by the court.

May 2016