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What if a creditor files a motion for relief?

 

A:

If you are in an active Chapter 7 or Chapter 13 bankruptcy and you have secured debts, such as a mortgage on a home or a loan on a vehicle, or ongoing lease payments, there is a chance that you could receive notice of a Motion for Relief from Automatic Stay.  A motion for relief from automatic stay is a motion that your creditor can file with the court to get around the protection you have through the bankruptcy to begin collection attempts once again.   Even though you have immediate protection from creditors when your bankruptcy case is filed, your creditor still has the ability to request permission to get around this protection. 

 

A Motion for Relief is filed when you do not make all your ongoing mortgage, car, or lease payments before and/or after your bankruptcy case has been filed.  Typically, the creditor will file the motion and give your attorney a chance to file a response with the court to explain your intentions on becoming current or argue that you are current in certain cases.  Once this response is filed, the motion will be heard a hearing.   If you are not current with your payments at the time of the hearing, the court will grant the motion and your creditor can move forward with foreclosure, repossession, or eviction.

 

In certain cases, if you cannot become current with your payments before the hearing date, you may be able to enter into a "Stipulation Agreement" that allows you to pay the  arrearage over six months; However, sometimes the creditor does not agree to such an agreement or requires a down payment.  Typically stipulation agreements are only allowed in Chapter 13 bankruptcy cases as well.   If a motion for relief is filed in a chapter 7 bankruptcy case,  a stipulation agreement may not be an option.

 

If you are in a Chapter 7 or Chapter 13 bankruptcy and have secured debts or an ongoing lease payment, it is important that you remain current on your payments for this reason.  Falling behind can allow your creditor to pursue their options to collect from you.   As a general rule, if it is a secured debt or ongoing lease payment and you want to keep that property, you need to make sure you remain current on your payments.  Additionally, if you continue to fall behind on payments, you may want to consider surrendering the property through the bankruptcy to get a true fresh start.  


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