Can I file an opposition to a motion for relief from stay? 26 Answers as of August 06, 2011

I was granted a discharge under Ch. 7 BK last month and just received a Motion for Relief from Automatic Stay from one of my lenders with whom I have a second mortgage for a property I intend to keep. During the BK period, my automatic payments never went through and thus I fell behind payments 3 months (the account was current prior to filing). However, I just paid the total amount due for the period (after speaking with my bank). So can I file an opposition to the relief motion based on the notion that the lender now has "adequate protection" because I've made payments current?

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Eric J. Benzer, Attorney at Law
Eric J. Benzer, Attorney at Law | Eric Benzer
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Answer Applies to: Maryland
Replied: 8/6/2011
The Law Office of Jacqui Snyder
The Law Office of Jacqui Snyder | Jacqui Snyder
You may be able to file an objection to the motion for relief because the second mortgage is now current. Or you could ask the lender (or whoever filed the motion for relief on their behalf) to withdraw the motion since the loan is now current, and save everyone the trouble of attending any hearing on the matter.
Answer Applies to: Ohio
Replied: 8/5/2011
Eranthe Law Firm
Eranthe Law Firm | Cate Eranthe
If you had a discharge of the bankruptcy last month, there is no stay in effect and no need for an opposition to the motion.
Answer Applies to: California
Replied: 8/5/2011
Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
The motion is "moot." You have a discharge, there is no automatic stay anymore. Paying the note current resolve the issue. Make sure there are no fees you don't know about. See a lawyer about serving a Qualified Written Request on the lender - so they have to tell you if you were charged for the motion.
Answer Applies to: California
Replied: 8/5/2011
Burnham & Associates
Burnham & Associates | Stephanie K. Burnham
You can file an objection to the Motion for Relief stating that payments are current. You may want to speak with an attorney about the possibility of reducing your second mortgage by the unsecured amount.
Answer Applies to: New Hampshire
Replied: 8/5/2011
    CONSUMER PROTECTION ASSISTANCE COALITION, INC. (DE).
    CONSUMER PROTECTION ASSISTANCE COALITION, INC. (DE). | Gary Lee Lane
    Yes.
    Answer Applies to: California
    Replied: 8/4/2011
    Judith A. Runyon, Esq. Attorney at Law
    Judith A. Runyon, Esq. Attorney at Law | Judith A. Runyon
    No need, as no stay is in effect, since you have already received your discharge.
    Answer Applies to: California
    Replied: 8/4/2011
    Theodore N. Stapleton, PC
    Theodore N. Stapleton, PC | Theodore N. Stapleton
    Yes but it doesn't really matter if you are current on the mortgage they can't foreclose.
    Answer Applies to: Georgia
    Replied: 8/4/2011
    William C. Gosnell, Attorney at Law
    William C. Gosnell, Attorney at Law | William C. Gosnell
    yes you file an objection to a motion for relief from the automatic stay. But if you have been granted a discharge the case will soon close. Then the creditor is free to foreclose. Get those payments current asap or your toast.
    Answer Applies to: Tennessee
    Replied: 8/4/2011
    Law Office of Lynnmarie A. Johnson
    Law Office of Lynnmarie A. Johnson | Lynnmarie Johnson
    Yes you can file an objection, be sure to attach copies of the front and back of your checks to show you are current. However, check and make sure that when they say they are not adequately protected, it isn't because your home value does not exceed what you owe on the mortgages (totaled up). Frequently they file this motion to allow them to talk to you about modifications, or to work out some kind of plan payback. Generally if it was filed just because you are behind, but you are now caught up, a simple call to the attorney who filed the objection will result in them withdrawing the objection. If you had an attorney representing you, be sure and call them and they can take care of it for you! Good luck!
    Answer Applies to: Michigan
    Replied: 8/4/2011
    Dearbonn Law Offices
    Dearbonn Law Offices | Ajibola Oluyemisi Oladapo
    yes you may, since you are current on your payments and as you rightly said, you have adequate protection. Please note that this is not legal advise and should not be construed as such. .
    Answer Applies to: Washington
    Replied: 8/4/2011
    Colorado Legal Solutions
    Colorado Legal Solutions | Stephen Harkess
    Yes, you can oppose the motion for relief if you have brought the payments current. In most cases, the creditor will drop the motion.
    Answer Applies to: Colorado
    Replied: 8/4/2011
    Mauritz Van Niekerk, Attorneys at Law
    Mauritz Van Niekerk, Attorneys at Law | Christiaan van Niekerk
    Yes
    Answer Applies to: New York
    Replied: 8/4/2011
    Rosenberg & Press
    Rosenberg & Press | Max L. Rosenberg
    You absolutely can file an Objection and argue it in court. Your auto payments discontinued because of the stay which does not allow your mortgagors to collect the auto payment. I am just unsure of the benefit of arguing this motion.
    Answer Applies to: Connecticut
    Replied: 8/4/2011
    Bankruptcy Law office of Bill Rubendall
    Bankruptcy Law office of Bill Rubendall | William M. Rubendall
    Once a discharge is entered there is no stay on behalf of a debtor for real estate loans. There is no need for a creditor to file for relief from stay and there is no basis for opposition to be filed in the event a motion of this type is filed unnecessarily.
    Answer Applies to: California
    Replied: 8/4/2011
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    If those three payments are the ONLY ones past due, then becoming current on the loan is grounds for opposing the motion for relief. If you were already behind before you filed and these payments are still past due, you need to either provide for repayment of those arrears, or a way to cure the delinquency AND have equity in the property - which is the lenders adequate protection.
    Answer Applies to: California
    Replied: 8/4/2011
    Law Office of Maureen O' Malley
    Law Office of Maureen O' Malley | Maureen O'Malley
    I believe that Motion is too late. First ask the bank if they plan to dismiss the motion and leave you in good standing. If not,call the clerk to see if they're going to schedule a date. If for some reason they are, you can answer that it's filed too late (they can take action after discharge w/o court approval) and show that you're up to date. Then keep it always up to date and always.make sure right away that auto payments go through.
    Answer Applies to: Virginia
    Replied: 8/4/2011
    Melinda Murphy Dionne, PC
    Melinda Murphy Dionne, PC | Melinda Murphy Dionne
    Did you enter into a reaffirmation agreement with the bank? Under the controlling law in the federal districts contained within the State of Alabama, you must redeem (pay the value of the property in a lump sum), reaffirm the debt, or surrender the property securing the debt. Absent a reaffirmation agreement, you no longer have any personal liability on the debt. If you failed to reaffirm the debt, the bank will be granted relief from stay. You should also recognize that the automatic stay ends when your case is closed. Even if the bank didn't seek relief from the stay, it would be entitled to pursue its state law remedies when your case is closed. Talk to your attorney and see if you can work out arrangements with the Bank to keep your home.
    Answer Applies to: Alabama
    Replied: 8/4/2011
    Carballo Law Offices
    Carballo Law Offices | Tony E. Carballo
    The automatic stay should not be in effect any longer since you received your discharge already and generally cases are closed a few days after the discharge plus the automatic stay expires 60 days after the meeting of creditors anyway. Therefore, I have no idea why the bank would need relief of stay now. Maybe there is other information you did not include in your question. Often banks file for relief of stay unnecessarily or set the hearing date after the case is closed. It can only be explained as careless lawyers than don't check the dates. If the stay has already expired in your case then there would obviously be no need to oppose something that would not be granted anyway. You better check with your attorney as to what is going on in your case.
    Answer Applies to: California
    Replied: 8/4/2011
    The Law Office of Marvin Wolf
    The Law Office of Marvin Wolf | Marvin Wolf
    The issues in your question are too involved and specific to your case to answer on a public forum. I will say that as a practical matter, and as general information - most of the time once a debtor receives a discharge from the court, the case is scheduled to close very soon afterward (weeks or sometimes as fast as 1 or 2 days) with the stay expiring anyway automatically with the closing of the case, so a motion for relief from stay from a creditor under those circumstances is generally redundant and wasteful, since filing their motion stops the case from closing until it is heard by the court - meaning it actually may result in extending the time it would take for the stay to expire. There are many reasons this can happen: Sometimes the lawyer filing for relief doesn't realize this; sometimes it's a tactic to increase costs for debtor to cure post-bankruptcy and sometimes the creditor is also asking for "prospective relief" in the relief motion to stop a debtor from filing a different kind of bankruptcy in the future (which is very dangerous). There are other issues involved. This matter should be discussed with an attorney.
    Answer Applies to: New Jersey
    Replied: 8/4/2011
    Law Office of Felipe A. Malo, P.A.
    Law Office of Felipe A. Malo, P.A. | Felipe Augusto Malo
    Yes of course u can But just contact the atty of the bank and they can withdraw their motion
    Answer Applies to: Florida
    Replied: 8/4/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    You are way over your head. Pro se cases often go badly. Catching up without negotiating the motion was a huge mistake. Whether you can or should defend the motion (and how) is a decision that involves legal training and a review of the pleadings. Get a lawyer to look at it.
    Answer Applies to: Georgia
    Replied: 8/4/2011
    Ursula G. Barrios Law
    Ursula G. Barrios Law | Guillermo Machado
    You can file your opposition stating that your payments are now current and timely and you have cured all arrears. Of course, this will all have to be true for the opposition to have merit and convince a judge. Thank you
    Answer Applies to: California
    Replied: 8/4/2011
    Ryan Legal Services, Inc.
    Ryan Legal Services, Inc. | Kevin Ryan
    A "Relief from Stay" Order in your Chapter 7 bankruptcy will only give the lender the right to proceed with its state court remedies as to the mortgage. From what you posted (that you paid it up to date), the lender currently has no legal remedies against you because (1) they accepted payment of the past due amount and (2) you are current as to all payments from the date of the loan through the current date. The Bankruptcy Stay Order in Chapter 7 is lifted once the Court issues the Final Decree and closes the case post-discharge. In other words, once the bankruptcy case is closed, the Court loses jurisdiction to enforce a Stay since it automatically terminates.
    Answer Applies to: Ohio
    Replied: 8/4/2011
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