How to Lift a Stay on Chapter 13 Bankruptcy Proceedings
Filing bankruptcy gives the debtor, at a minimum, a break from collection activity due to the "automatic stay" of all other legal proceedings imposed by 11 U.S.C. 362 of the Bankruptcy Code. However, the automatic stay is not permanent, and under certain circumstances can be lifted for cause. In Chapter 13 cases, it is typically secured creditors that want relief from the automatic stay to foreclose on real property or repossess a vehicle. Obtaining an order for relief from the stay requires filing an appropriate motion with the bankruptcy court.
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Instructions
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Gather your evidence to support your motion for relief from stay. Prepare a declaration or affidavit from the company or person who services the loan to show that the debtor has defaulted on his mortgage or car payments due after filing his bankruptcy petition.
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Prepare the motion according to the local rules where the bankruptcy case is pending. Use the forms specified in the rules which can be obtained from the clerk's office or downloaded from the court's Website.
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Obtain a hearing date from the court by following the procedure specified in the local court rules or, if none is specified, call the clerk for the judge assigned to the case and ask for a hearing date.
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File your original motion with the court clerk and serve copies of the motion on the debtor and the debtor's court appointed bankruptcy trustee. Under the U.S. Bankruptcy Code, you can do this by mailing the copies by first class mail.
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Attend the hearing on your motion for relief from stay. In Chapter 13 cases, these hearings are generally simple matters where the court only permits a few minutes of argument before deciding the motion.
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Prepare an order to be signed by the judge, if she grants your motion for relief from stay. Again, use the court's form for the order, if one is provided. Also be aware that some judges prepare their own orders.
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Tips & Warnings
There are self-help legal publications on bankruptcy proceedings that provide useful forms for preparing motions and orders involving relief from stay; however, always use the form provided by the court, if one is available.
The documents comprising the motion for relief from stay typically include a notice of motion, memorandum of law and the declaration and documents comprising your evidence.
The Bankruptcy Code requires a hearing be held within 30 days of the date the motion for relief from stay is filed. If you do not receive a hearing date within that time, contact the judge's clerk assigned to the case.
