What is a motion for relief and is that usually granted? 14 Answers as of December 29, 2014

My lawyer sent me a letter from my mortgage saying they have filed a motion for relief and he wants to file a resistance. What does that mean and are the motions usually granted?

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Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
Talk to your lawyer. Advice and information is what you are paying for. Meantimes, the only answer as to motions for Relief from Stay is 'it depends.'
Answer Applies to: Wisconsin
Replied: 12/29/2014
Stephens Gourley & Bywater | David A. Stephens
A motion for relief is generally filed by a mortgage company to get permission from the bankruptcy court to proceed to foreclosure. The opposition would be your explanation why permission should not be granted.
Answer Applies to: Nevada
Replied: 12/23/2014
Ronald K. Nims LLC | Ronald K. Nims
A motion for relief from your mortgage company means that they want to foreclosure on your house and they are asking the permission of the bankruptcy court. If it's your intention to get current on the mortgage and keep the house then you need to oppose the motion for relief. If you intend to walk away from the house then you don't need to oppose it. It doesn't matter whether motion's for relief are usually granted, it matters what the facts are in your case. Motions for relief are always granted in Chapter 7 bankruptcies when you're several payments behind on your mortgage and have no feasible plan to get caught up. Motions for relief are never granted if you're not behind on your mortgage or you will be caught up in the near future.
Answer Applies to: Ohio
Replied: 12/22/2014
The Law Office of Darren Aronow, PC
The Law Office of Darren Aronow, PC | Darren Aronow
Motion for relief is when the mortgage bank is asking to continue or start foreclosure proceedings. It is generally granted unless you have a case to stop them from doing so.
Answer Applies to: New York
Replied: 12/22/2014
You should direct questions to your attorney but a motion for relief from stay is brought be a creditor when payments are not being made on the mortgage or other collateral securing the loan. The creditor is telling the court that because payments are not being made that there is not adequate protection provided by the asset securing the loan. Unless you can show that the asset is appreciating and/or the value of the asset is greater than the balance on the loan then the court will grant the motion for relief from stay removing the asset from the automatic stay preventing creditors from foreclosing or repossessing the asset.
Answer Applies to: Minnesota
Replied: 12/22/2014
    Steele, George, Schofield & Ramos, LLP
    Steele, George, Schofield & Ramos, LLP | Alan E. Ramos
    My question for you is: why haven't you asked your attorney these questions? When you file a bankruptcy petition, an automatic stay is put in place. This is an injunction that prevents all creditors from taking any action to collect a debt, pursue litigation or foreclose on property. If a creditor has grounds to seek relief from the automatic stay (the removal of the injunction), they must file a motion for consideration of the court. Grounds for relief could be non-payment of regular payments on secured property (loan payments on a residential loan, etc.). Whether or not relief will depends on the facts of each case.
    Answer Applies to: California
    Replied: 12/22/2014
    GARCIA & GONZALES, P.C. | Richard N. Gonzales
    The mortgage company is asking the court for permission to initiate or continue with the foreclosure process. They will do this typically in a Chapter 7 if you are behind on mortgage payments.
    Answer Applies to: Colorado
    Replied: 12/22/2014
    A Fresh Start
    A Fresh Start | Dorothy G Bunce
    A motion for relief usually is brought by a secured creditor wishing to obtain the right to repo or foreclose on the property that is financed by the creditor. I think you may have misunderstood your attorney saying that he wants to file a resistance. Perhaps your attorney wants to file an opposition to see if the creditor will discuss working out a payment plan that will let you keep the property. Unopposed motions are always granted, and opposed motions can be denied if you have equity in the property that protects the creditor from an ongoing loss due to nonpayment. Working out a deal to resolve any delinquent payment would be the best of all possible results.
    Answer Applies to: Nevada
    Replied: 12/22/2014
    Janet A. Lawson Bankruptcy Attorney
    Janet A. Lawson Bankruptcy Attorney | Janet Lawson
    These motions are commonly granted. Sometimes you can negotiate a payment plan with the lender called an "adequate protection order". The only real defense is that the math is wrong. If you are in ch7, conversion to ch13 (before the motion is granted) might be an option.
    Answer Applies to: California
    Replied: 12/22/2014
    Freeman Law Group, LLC
    Freeman Law Group, LLC | Derek Freeman
    That really depends. I assume the motion is for relief from the automatic stay, which means that your mortgage lender is seeking to be allowed to move forward with a foreclosure during the bankruptcy. Whether it is granted depends a lot on you. If there's equity in your home, and if you filed a statement of intent to redeem and retain the property, then you're in a fairly good position. If you filed a statement of intent to redeem, then you have until 30 days following the meeting of creditors to become current on your loan. If you do this, and if there's equity in your home, you have a very good chance at defeating their motion. If you can't become current by 30 days following the meeting of creditors, you're in a much worse situation, and there is a good chance your mortgagor will succeed in their motion. I hope you have a competent attorney.
    Answer Applies to: Colorado
    Replied: 12/22/2014
    Law Office of Melissa Botting | Melissa Botting
    A motion is the term for a request to the court. A motion for relief is shorthand for a motion for relief from the automatic stay under section 362. Or, it is a request to the court by a creditor to move forward with collection despite the bankruptcy. If you do not file a response o(r allow the motion be unopposed), the motion will be granted. Without knowing the creditor and the grounds they have submitted for the request, it is difficult to say if it will be granted. However, if it involves property you want to keep, you want to file a response. If it involves a car you are surrendering or other property you want to give back, it will depend on your local court. Many courts require a simple statement that you do not object just to be sure you are not bulldozed. If the court has to chase you for a response, they may be less likely to give you the benefit of the doubt in other areas. If your court does not require responses, you may ignore the motion if you are sure you agree. If you ignore the motion you cannot ask for a rehearing without proving good cause.
    Answer Applies to: Texas
    Replied: 12/22/2014
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    This is not a forum with which to second guess or clarify your lawyer. Your lawyer knows your situation. Ask your lawyer.
    Answer Applies to: Michigan
    Replied: 12/22/2014
    D.J. Rausa, Attorney at Law | D.J. Rausa
    Ask you lawyer to explain.
    Answer Applies to: California
    Replied: 12/22/2014
    Stittleburg Law Office
    Stittleburg Law Office | Bernd Stittleburg
    A motion for relief by a mortgage company means they want out of the bankruptcy so that collection efforts on the debt can be done. They are usually granted. If your attorney wants to fight them, find out what he or she has to fight with.
    Answer Applies to: Georgia
    Replied: 12/22/2014
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