How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Maverick Your Own Question

Maverick
Maverick, Attorney
Category: Bankruptcy Law
Satisfied Customers: 3431
Experience:  Bankruptcy Law With An Accounting Degree - 13 + years as civil lawyer
Type Your Bankruptcy Law Question Here...
Maverick is online now
A new question is answered every 9 seconds

We received an adversary motion against us to repay an auto

Resolved Question:

We received an adversary motion against us to repay an auto loan for a surrendered vehicle. How do we file a reconsideration of motion with the Northern District Court of Georgia and how do we respond to a motion for a relief of stay
Submitted: 4 years ago.
Category: Bankruptcy Law
Expert:  Maverick replied 4 years ago.
Need a little more background information please. Who are the parties listed in the adversary proceeding. Is the creditor suing the debtor to repay an auto loan that was listed in the BK. Is it a chapter 7 or 13? Are you the debtor? What is the creditors alleged grounds for lifting the stay. What does the adversary proceeding say generally?
Customer: replied 4 years ago.
Who are the parties listed in the adversary proceeding.

Debtors - Donald and Melody Baker
Jeffrey K. Kerr, Trustee

Is the creditor suing the debtor to repay an auto loan that was listed in the BK.
yes, in a chapter 7.
Is it a chapter 7 or 13? Are you the debtor? Chapter 7

What is the creditors alleged grounds for lifting the stay. We returned the car so we did not attend the motion as advised by a paralegal

What does the adversary proceeding say generally?

Fidelity Bank seeks to remove the automatic stay for the Kia Sedona so they can obtain the difference owed plus repairs when the sell the reposessed vehicle. The motion was granted and then modified indicating we are required to pay the court the difference not the bank. We would like to request reconsideration of the motion granted April 22,2009.
Expert:  Maverick replied 4 years ago.

Okay so please confirm you have received an order from the BK court dated 4/22/09 granting Fidelity's motion to lift stay and granting their motion that you pay the court the difference? Is there an amount listed. What is your basis for asking for a reconsideration. The reason I am asking is typically in a chapter 7 bankruptcy your auto loan deficiency will be discharged.

Customer: replied 4 years ago.
Okay so please confirm you have received an order from the BK court dated 4/22/09 granting Fidelity's motion to lift stay and granting their motion that you pay the court the difference?

Confirmed

Is there an amount listed.

No amount listed on the order. We received a letter from Fidelity stating we could pay them an amount of $11,561.63 if we desired to satisfy the loan.

What is your basis for asking for a reconsideration. The reason I am asking is typically in a chapter 7 bankruptcy your auto loan deficiency will be discharged.

We were advised we did not need to appear at the court to challenge the motion for relief of stay. So we did not attend and the motion was awarded against us. The car was in very very poor condition and is not valued at the amount claimed by the bank. We advised our trustee of its condition at our bk hearing. We request reconsideration of decision based on the amount suggested we repay by Fidelity and for poor legal advice from a paralegal
Expert:  Maverick replied 4 years ago.

Okay here's what I am finding out and it doesn't look to be too favorable (sorry); I am citing cases with support law so you can review the law as well.

 

First the motion to lift stay probably does not need a response as it is too late. The court has already made an order for a deficiency judgment as it would appear. Fidelity had to file the motion to lift stay first before they could get the deficieny order.

 

Next, in In re International Fibercom, Inc., 503 F.3d 933, 944 (9th Cir. 2007) , the court held that "Under Rule 59(a), made applicable to bankruptcy proceedings by Federal Rules of Bankruptcy Procedure 9023, a court has discretion to reopen a judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions [citations omitted]. . . ."

 

Next relevant law:

 

In re Captain Blythers, Inc., 311 B.R. 530 (9th Cir. B.A.P. 2004), aff'd, 182 Fed. Appx. 708 (2006). the court said that the rules do not recognize a motion for reconsideration. Since the motion in question was brought within 10 days of entry of judgment, it is considered a motion to amend findings under Rule 52, or a motion to alter or amend judgment under Rule 59.

 

"There are three grounds for granting new trials under 59(a)(2):
1. Manifest error of law,
2. Manifest error of fact, and
3. Newly discovered evidence

 

See Brown v. Wright, 588 F.2d 708, 710 (9th Cir. 1978) (citing 6A Moore's Federal Practice at ¶59.07 at 59-94).

 

 

It appears that you have to file a Rule 59 or Rule 52 motion with in 10 days of the order.

 

Since it appear that that time is passed, you may have a shot at it as a motion for relief from judgment under Bankr. Rule 9024 and Civ. Rule 60. A Civ. Rule 60 motion "is addressed to the sound discretion of the trial court." Nat'l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991).

 

Civ. Rule 60(b) lists six grounds upon which a court may relieve a party from a final

judgment:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation,

or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon

which it is based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation of the judgment.

 

 

Thus you will need to file a Rule 60 motion and prove one or more of these basis for getting the BK court's order in favor of Fidelity reversed.

 

 

Please click ACCEPT so I can get credit for my work. We can continue our conversation after this at no additional charge. Thank you for the opportunity to assist you.

 

 

Maverick, Attorney
Category: Bankruptcy Law
Satisfied Customers: 3431
Experience: Bankruptcy Law With An Accounting Degree - 13 + years as civil lawyer
Maverick and other Bankruptcy Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    3203
    Bankruptcy Lawyer. Experienced.
< Last | Next >
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    3203
    Bankruptcy Lawyer. Experienced.
  • http://ww2.justanswer.com/uploads/TL/tleeders/2012-6-13_204815_TSL1.64x64.jpg Terry L.'s Avatar

    Terry L.

    Attorney

    Satisfied Customers:

    2204
    Better Business Bur 15yrs bankruptcy experience. Chicago Bar
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    950
    B.A.; M.B.A.; J.D.
  • http://ww2.justanswer.com/uploads/CO/cortrightlaw/2011-12-5_4117_Kevin.64x64.JPG cortrightlaw's Avatar

    cortrightlaw

    Attorney

    Satisfied Customers:

    490
    Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
  • http://ww2.justanswer.com/uploads/Jay1968/2006-12-03_004423_JoeRossPhoto.jpg JoeLawyer's Avatar

    JoeLawyer

    Attorney

    Satisfied Customers:

    376
    Attorney in the practice of Bankruptcy Law since 1996
  • http://ww2.justanswer.com/uploads/DY/Dylatess/2012-9-11_1968_BHBTemplePhoto.64x64.jpg dylatess's Avatar

    dylatess

    Attorney

    Satisfied Customers:

    370
    35 plus years of experience specializing in bankruptcy law
  • http://ww2.justanswer.com/uploads/US/USLawAnswers/2012-9-20_23143_20090105211638Headshot3b.64x64.jpg Brent Blanchard's Avatar

    Brent Blanchard

    Bankruptcy Attorney

    Satisfied Customers:

    315
    Twelve years experience in all aspects of debtor & creditor BK.