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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26143
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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I am in Pro se and need to file a motion to reinstate the automatic

Customer Question

I am in Pro se and need to file a motion to reinstate the automatic stay in a chapter 13 case involving real property. I can not find where I received proper notice. Furthermore at the time of the hearing, I was not available to attend due to extenuating family circumstances. The order to terminate the automatic stay was filed on September 6, 2012 and today is approximately 30 days since the stay was termminted. What do you advise I do?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Roger replied 1 year ago.

Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney.

Was the stay lifted as to a particular creditor and a particular piece of property/collateral?

Customer: replied 1 year ago.

Yes, the stay in question was lifted for a particular creditor and a specific piece of property. I also have another property on which I just received a notice of a request for relief from stay on a different property.

Expert:  Roger replied 1 year ago.

Ok. Thanks. XXXXX thing you can do is appeal the decision, which is usually an appeal to the district court.

However, you must file a notice of appeal within 14 days of the date of entry of the judgment, order, or decree appealed from.

As I said above, your appeal will be determined by the district court. You may also be able to get a "stay" pending appeal, but you have to ask for it and if granted, you may have to post a bond. The issues that are likely to determine whether or not a stay will be granted include the likelihood of success on appeal, whether irreparable harm if the stay is denied, whether others will likely be harmed, and the public interest in granting the stay.

Usually the decision made by the bankruptcy court judge comes after a trial or hearing before the judge. In an appeal, however, there is no new trial. Instead, each side prepares and files a legal brief, and has an opportunity to make oral argument before the appellate court.

The biggest problem I see with your issue is that it's been more than 14 days since the order was entered. In that case, you will first have to file a motion to ask the court to re-open the time for appeal, and to prevail on that, you will have to establish good cause - - which could be that you didn't receive a copy of the order, etc.

If you can get the appeal window re-opened, then you have to file the notice of appeal as outlined above.

Customer: replied 1 year ago.

OK, I understand. I am unclear on what forms need to be file. I have gone to the legal library and found volumes on removal of the automatic stay but very little was available on moving or petitioning for reinstatement of the stay. The same applies with moving to re-opening. The CA Central District Court is not much help either as they do not have any forms for this and have advised me that I have to create my own forms. What do you suggest?

Customer: replied 1 year ago.

Hi again,


 


Not sure if you got my last response but the other part to the question I forgot to ask is what if anything do you recommend as an alternate strategy as in petitioning to close the existing case and opening a new case or converting to Chapter 7?

Expert:  Roger replied 1 year ago.
Unfortunately, there are no official forms for a motion to reopen time to appeal. The best way to come up with something would be to seek help from a local legal aid office.

I think there is a form notice of appeal, but ill have to check on that.
Customer: replied 1 year ago.

OK, thank you very much. I would appreciate you checking on the form notice of appeal. Not sure how to proceed as I'm brand new to the Just Answer service. If I rate your answer now and close the question, will you still follow up with me later?

Customer: replied 1 year ago.

Sorry Kirk, I forgot again about the other part of the follow up question about alternative strategies. Any thoughts?

Expert:  Roger replied 1 year ago.

I don't think there are any alternatives to filing a motion to reopen the time for appeal and then filing an appeal.

There is a form notice of appeal: http://www.uscourts.gov/uscourts/RulesAndPolicies/bkforms/official/b17.pdf

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26143
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 5 other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you very much for your expert assistance Kirk!

Expert:  Roger replied 1 year ago.
Sure. Glad to help. Please let me know if you have any additional questions.
Customer: replied 1 year ago.

Good Morning, I have a follow up question. Since relief from the stay was granted to one creditor for a specific piece of property. Does that relief affect any other properties with different creditors. And, how in general does that relief affect the overall bk case?

Expert:  Roger replied 1 year ago.
No, the stay does not effect any other property or creditors. All it does is gives the creditor it's collateral back. Also, it should have no effect on the bankruptcy case.

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