What Is A Motion For Relief Of Stay: Chapter 7?
By Michael G. Doan, San Diego Bankruptcy Attorney on May 30, 2008 in Bankruptcy Practice and Procedure, Bankruptcy Protection & Automatic Stay, California, Chapter 7 Bankruptcy, General Bankruptcy Information
Most Debtors always get notices in the mail 30 to 90 days after filing for Chapter 7 relief concerning property they own. In most cases, they have no idea what it is. Chances are, it’s a Motion for Relief of Stay(MFRS). Usually your attorney explained this event and this notice should come as no surprise. But just in case, here you go:
A MFRS basically is a proceeding that is initiated by the creditor to end the restraining order against them. It’s a proceeding to allow them to continue whatever course of conduct they were pursuing, but for the filing of the bankruptcy case. So if they were in the process of foreclosure of a home or repossession of a vehicle, your bankruptcy froze that process. The MFRS simply allows them to pick up where they left off.
If they were about to sell the house, and you filed a bankruptcy the day before the sale date, they can now continue forward with their sale(which has probably been continued from date to date until this relief order has been entered…so watch out since it may even be the day the Judge signs the relief of stay order).
In Chapter 7 there are very few defenses to the MFRS you just received. That is because the Bankruptcy Code provides very little. Most the defenses for a MFRS motion arise under Chapter 13. Nevertheless, there are some defenses you can invoke:
1) Are they the proper party in interest? If this is real estate, do they possess the note?
2) Did they follow Local and National Rules in providing all the appropriate authorities, declarations, and exhibits before the Court?
3) Did they properly serve and notice all parties?
Finally, even once they get relief, don’t forget that you also continue to have your state court remedies(foreclosure: real party in interest, etc.) to assert via state court proceedings to delay and/or stop the property recovery process.
Written by Michael G. Doan
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