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How to write a OBJECTION TO RELIEF FROM AUTOMATIC STAY

Customer Question

How to write a OBJECTION TO RELIEF FROM AUTOMATIC STAY?
Submitted: 4 years ago.
Category: Bankruptcy Law
Expert:  JoeLawyer replied 4 years ago.
Hello.

An Objection to a Motion for Relief from Stay normally has to be filed within a short time period after the Motion for Relief from Stay was filed, so you will want to be sure you do not miss this deadline. The Objection has to be filed with the Bankruptcy Clerk in which the bankruptcy case, and Motion for Relief from Stay, is pending.

An Objection to a Motion for Relief from Stay has a heading, a body, a closing, and a Certificate of Service. One format looks like this (with some instructions below):

==================================================================================

............UNITED STATES BANKRUPTCY COURT
.......____________ DISTRICT OF _______________

In re: ...............)
JOHN DOE, .......) CASE NO. 10-12345-ABC-13
Debtor..............)

..........OBJECTION TO MOTION FOR RELIEF FROM STAY

.......COMES NOW [state your name] and files an Objection to the Motion for Relief from Stay filed by [state creditor's name who filed the Motion for Relief from Stay], and in support hereof now states:

.......1. That the Motion for Relief from Stay should be denied because [state your reasons why the court should not grant the Motion for Relief from Stay].

.......WHEREFORE, [state your name] prays that the Court deny the Motion for Relief from Stay filed by [state creditor's name who filed the Motion for Relief from Stay] and for all other relief as may be just and proper in the premises.

Respectfully submitted,

____________________________[<---sign your name]
[type your name]

........... CERTIFICATE OF SERVICE

....... I hereby certify that I mailed a copy of this Objection to the Motion for Relief from Stay, by prepaid U.S. First Class Mail, to the following persons on June ____, 2010:

[Name of Trustee]
[Trustee's Address]

U.S. Trustee
[U.S. Trustee's Address]

[Creditor's name who filed the Motion for Relief from Stay]
[Creditor's Address]

____________________________[<---sign your name]
[type your name]

===================================================================================

INSTRUCTIONS:

In the "____________ DISTRICT OF _______________" section, you would put which district the case is in, such as "CENTRAL DISTRICT OF VIRGINIA" or where ever the case is pending.

In the "JOHN DOE, ) CASE NO. 10-12345-ABC-13" line, change "JOHN DOE" to the name of the debtor(s) in the bankruptcy case, and change the "10-12345-ABC-13" to the actual case number XXXXX the bankruptcy case.

In the area where the form says "[state your reasons why the court should not grant the Motion for Relief from Stay]", you would fill in why you believe the creditor should not be given relief from the stay. For example, if the creditor requested relief from the stay because mortgage payments or Chapter 13 Plan payments were missed, and the payments were in fact made, you would say so here. Or, if the creditor requested relief from the stay because mortgage payments or Chapter 13 plan payments were not made and the payments were in fact NOT made, you might say how the payments will be caught back up. Simply saying the creditor should not get relief from the stay because if you lose your home you won't have anywhere else to live, or if you lose your car you can't get to work, will not fly with the Court. The Court usually wants to know either (1) that the creditor is wrong, or (2) if the creditor is right, how you can fix the problem quickly.

In the Certificate of Service, you are certifying to the Court that you mailed a copy of the Objection to each of the people listed under the Certificate of Service, so be sure and mail a copy to the Trustee assigned to the case, the U.S. Trustee, and the creditor (or their attorney) who filed the Motion for Relief from Stay.

Good luck!

Joe

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.

Edited by Joseph Ross on 6/4/2010 at 1:00 AM EST

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