Regardless of whether you file a Chapter 7 bankruptcy or a Chapter 13 bankruptcy , the automatic stay immediately goes into effect when the bankruptcy is filed. The automatic stay is a court order that can stop a foreclosure on a house or a repossession of a vehicle and prohibits creditors from contacting you to collect a debt.
A creditor cannot proceed with a foreclosure or repossession unless the automatic stay is lifted; this is done by filing a Motion for Relief from Stay with the court. When a creditor files a Motion for Relief from Stay they are asking the court for permission to foreclose on a house or repossess property.
The two most common reasons a secured creditor files a Motion for Relief from Stay are as follows:
1. If you surrendered property in your bankruptcy, such as a house or a car, the creditor will file a Motion for Relief from Stay in order to get permission to proceed with foreclosure or to repossess the property.
2. A secured creditor may also file a Motion for Relief from Stay because you’re behind on your mortgage payments since filing bankruptcy. If you agree you’re behind on your payments, we may be able to work out a consent order with the creditor to allow you to resume making your regular payments plus an additional payment to catch up on the amount you’re behind.
The goal in a bankruptcy is to avoid a Motion for Relief from Stay if you are not already surrendering your property because a Motion for Relief from Stay can create additional attorney’s fees and may cause you to have problems in your bankruptcy proceedings. In most bankruptcy cases, however, a Motion for Relief from Stay is not filed and the bankruptcy process goes smoothly.
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[…] proceeding to gain legal title and possession of the home. This is known as asking for a “relief from the automatic stay” from the court. If the client is giving up or surrendering the home, the judge will usually […]
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Assumed in a civil lawsuit, Defendents have filed Chapter 7 and try to stop this case. How can Plantiff file Motion of Relif from automatic stay? How much is he successful in the Bankruptcy court if Plantiff does that?
What is the other options Plantiffs have if Defendants do that?
We primarily represent people who are filing bankruptcy. A Chapter 7 bankruptcy creates an automatic stay which stops any lawsuits that are currently taking place. To be able to continue the lawsuit you would have to be granted relief from the automatic stay. It is usually difficult to do that. A creditor would have to show that the Debtor acted, more or less, fraudulently. From our experience, it is not very likely a motion for relief from stay will be granted unless there are unique facts to show the Debtor acted in bad faith.
Duncan Law Team
I am in chapter 13, I lot my job and has fallen behind on my mortage. Judge has decide to accept the request to relief from stay. I need second opinion on my situation to save my home from foreclosure.
Veronica,
It really depends on the specifics of your situation. If the Judge has issued relief from automatic stay then you could always try dismissing your case and refiling the case. However, you may have to show that good cause exist to extend the automatic stay at that point in time. Again, a lot of this depends on your specific situation and the nuances of your local bankruptcy rules.
Duncan Law Team
My home was included in my chapter 7 discharged 9/24/11. We did not reaffirm the home loan, but had continued to make the monthly payments till 9/1/12, and have been living in the home. We are now choosing to give the home back to Chase. But in our bankruptcy EMC had the loan and Chase bought it. So Chase is claiming to not have the information that it was in bankruptcy. Received notice of acceleration 11/05/12 and stated we have 35 days to come current. or it goes to foreclosure. How long do we truely have before we have to be out of the home? And can they charge us for anything? this is in WA state.
Cassie,
Because you are living in Washington I would encourage you to contact your attorney in Washington. Although bankruptcy uses federal laws (mostly) there are certain procedures and formalities that differ jurisdiction to jurisdiction. Therefore, I would contact your attorney to see how the judge’s in your area would handle a situation like yours. Best of luck!