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dkennedy
dkennedy, Attorney
Category: Bankruptcy Law
Satisfied Customers: 5998
Experience:  15+ years experience
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can an attorney date a motion to lift auto stay months before

Resolved Question:

can an attorney date a motion to lift auto stay months before they were ever the attny of record as a "Party" on pacer and then file it months after they dated it? obviously it is from some one elses drafted motion to lift the auto stay and they didnt change the date. is there any procedure or code regarding this being illegal?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  dkennedy replied 1 year ago.
Hello,

If it was done intentionally, that would be a different story, but it sounds like what is called a "scrivener's error" or in regular language, a "typo" and therefore it would be excused and the court will probably ask for an amended motion to life the automatic stay.

Please ask any follow up questions, and don't rate the service until you are satisfied.
Customer: replied 1 year ago.
Do I put it in my opposition 14 days before hearing? or point it out now? would they have to give 28 days and a new hearing date once they correct the typo? Does it have a USC code? or State Statute or procedure? rule?
Expert:  dkennedy replied 1 year ago.
What exactly are you opposing? The wrong date? There's no law or rule on what to do if there is a typo but they will be made to correct it. If your opposition is turned in close to the hearing date, they may put it off until they get the corrected paperwork. Does that answer your question?
Customer: replied 1 year ago.
I am opposing much more than the date, i didn't know about the date but I thought it was odd because they were not the attorney of record on the date they signed their motion to lift the stay. and the date they became attny of record was months later which was the same time they filed the motion to lift the stay. So in addition to my opposing arguments/evidence, if I pointed out the date they signed it and they were not the attorney of record, how would I point it out and what would I ask for? Them to refile the motion and Notice giving 30 days required Notice prior to the motion? Or would it be something separate or in addition to all my opposing aruguments? Mainly is that they are on Schedule F and an unsec crdtr. So how can they motion to lift the stay? they supplied the original Sch D they were on, but since then and long before they filed their motion, I amended the schedules and put them on Sch F. they were notice and POS was filed, however, they were noticed more than a week after I filed the Amended sch/statments because I wasn't able to get it to them earlier. I gave an explanation in my Notice. Is the filing still valid since the affected Creditors were not given written Notice within 3 days? or does that only apply to Motions and not Amended filings? If it does apply, how do I remedy it. I know lots of questions here in this question. Would you use the date as an issue? at least to buy more time to get all evidence in opposition as well as a counterclaim?
Expert:  dkennedy replied 1 year ago.
I would file two different motions. One, opposing their automatic stay request because they are unsecured creditors and another opposing the date. It sounds to me as if the creditor is "grasping at straws" and does not know what they are doing. Just always keep in mind, they can file anything. That doesn't mean it makes any sense or is going to get them anywhere. Just file your motions and briefly but in detail, list what you told me about them being on the correct schedule as per your amendment, they have no standing to file for lifiting the stay, etc. Also, file for the date situation. After you told me all this, perhaps it is more than a 'typo"--could be an attempt to try to go back to when they were on the wrong schedule. I'm at a disadvantage here of course, because I cannot review your schedules, but I think you are on the right track. By filing these two resistance motions, you are going to for sure have the bankruptcy court carefully review the paperwork, whereas they might not have done so previously.
dkennedy, Attorney
Category: Bankruptcy Law
Satisfied Customers: 5998
Experience: 15+ years experience
dkennedy and 2 other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.
I never heard that saying, "grasping at straws" but it certainly makes sense. And I was thinking they surely put the date they put because at that time they were on Sch A & D, and 2 weeks later I had amended and put them where they belonged. But I am wondering, as an attny, when you do the Motion to Lift the Stay, shouldnt it be dated when it was executed? And according to the law book, should be signed "Executed on and Dated..." Yet they only put "Dated:xxx" and never put executed. And as I said, they dated it over 2 months before Noticing me, filing it with the court and becoming the attny of record on the court and for movant. Is that even legal? I mean how could they put that date, except of course wanting to refer to those Schedules being accurate, if they weren't even the attorney of record or the Movant's attny? I suppose they don't expect me to oppose so they put what they needed to. As far as the date situation, that should be a different motion? not included in the Opposition Motion? Do I caption it, 'Notice of wrong date?" I will file 2 diff motions next week, and at the same time, but I'm a little confused on what to title the date one.
Expert:  dkennedy replied 1 year ago.
Of course an attorney cannot sign and date something prior to when he/she prepared the papers. I don't think the word "executed" really makes a difference. But, if it was just to try to get around your amendment, that would be wrong and should be brought to the attention of the judge. If it was merely a "typo" then that would be excused.
Customer: replied 1 year ago.
sorry this is dragging on so long. Here's some facts: The attny as of July 5th had not drafted or done anything to iift the stay nor were they yet hired as "attny of record." I had called the attorney but the attorney called back that date and left a message on my phone, which I still have, stating the above. I wanted to know their address because I thought they were the attorney and I was going to do a motion, however the attorney said they are not the attny of record and to send anything to movant per BK law. Even though I have name of attny date and time he called, I think it would be hearsay, but as of july they were not attny for movant. then, they dated motion to lift the stay for end of May, when they were still on sch D and A. In June, the were changed to F. So, like you were thinking, they dated it May so they could use Sch A and D as exhibits and claim to be sec crdtrs. Could I use the attnys message left on the phone as part of opposing the motion, or would I title the pleading something else? or just write a letter to the judge? or is it hearsay? I also called and spoke to them in June and they said they were not yet retained and havent even looked at my case because they just received it. I asked when, and he (main attny) said he received it in March. I filed in January. This also was what he left on my answering machine and didn't want to give me their address since they "are not the attny of record." So you answered my question, they cannot sign/date prior to prep. Anyway, my evidence stated here doesn't matter, its obvious by the date they put their name as attny for Creditor on Pacer, right? (under "Party") and that was 3 months after the date of their motion to lift stay. Is there a simple way to oppose? I was planning on Noticing them the amended sch's showing their client/cr. on Sch F. and therefore they don't have standing. They also stated on summary sheet they are 1st lien and they are not, so I was going to include the 1st lienholder, but that shouldn't be necessary, right? Hopefully after this I can accept, give you a bonus and getter done. btw, this property is not my exempt property but I do live here 50% and use it for business and have more cash in to it than it is currently worth.
Expert:  dkennedy replied 1 year ago.
Let me review all this and get back to you.
Customer: replied 1 year ago.
thank-you, and I was wondering if in my reply with above info, do I Notice the judge along with the Trustee and US Trustee? Just a little confused if should be 2 different filings, assuming one is Response or Motion to Dismiss their Motion to lift...and the other with info that isn't true and correct, Caption it ?
Expert:  dkennedy replied 1 year ago.
You don't have to "notice" the judge because that's what it is when you file something in the court file (original paperwork gets filed); copy to the trustee. As I said above--send two different motions. One is opposing the Motion to Dismiss (just in case the judge let's their motion stand) and the other is the one about the incorrect date. You can call it whatever you want--Notice of Incorrect date (in this one explain about the dates and schedules.
dkennedy, Attorney
Category: Bankruptcy Law
Satisfied Customers: 5998
Experience: 15+ years experience
dkennedy and 2 other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.
GREAT THANKS

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