Legalese defines a motion as a procedural device used to ask the court for a decision, direction or ruling on a contested issue in civil, criminal or administrative proceedings, including in bankruptcy cases. Motion work in bankruptcy takes many forms. When a creditor files a motion against you and you fail to respond with a written opposition, the judge may automatically grant the motion in favor of the other party, and you will lose the case.
Motions are typically made before the start of a trial to resolve any preliminary procedural issues, but they can also be submitted after trials in order to modify or enforce judgments. There are many different types of motions, including modifications of orders, continuing trials on a later date, dismissing the opposition's case, and much more.
Understanding Motion Work in Bankruptcy
There are many diverse types of motions in bankruptcy. You should hire a bankruptcy attorney who knows how to file motion work in bankruptcy on your behalf, and who is well-versed in the workings for each type of motion that you might need to file - and when it should be done - and defend against to ensure you have the best possible defense.
Most often, Chapter 7 cases don't require an attorney to file motion work on your behalf, but creditors often file motions, and it is important for a competent bankruptcy attorney who understands the ramifications of such motions, to respond on your behalf.
Chapter 13 cases, on the other hand, involve many motions and responses and defenses on your behalf. Some common motion work in bankruptcy will include:
Motion to Confirm / Motion to Modify
Once you file for Chapter 13 bankruptcy, you have to file your Chapter 13 Plan, which explains how your repayment plan will be used to pay each creditor throughout the three to five year duration. In the plan, creditors are categorized by designation.
After filing the plan, the court may serve the plan to your creditors, or you will be required to serve copies of the form to all the creditors. Additionally, you must file a Motion to Confirm for the Chapter 13 plan. The motion will lay out statutory requirements that must be met in order to confirm the plan. You will then have to attend a hearing to argue in front of a judge, your reasons for why creditors should confirm the plan.
If any changes occur during your Chapter 13 case, or if the plan must be modified to ensure that you abide by the Bankruptcy Code, you will have to file a Motion to Modify. This includes dramatic changes in your income.
Motion to Value
A Motion to Value allows you to save a significant amount of value, and this can be filed for many reasons in a Chapter 13 case. By filing the Motion to Value, you request that the Court determines the value of a specific asset. After establishing the value of an asset, the creditor is legally obliged to follow the rules established by the court order.
Most often, a Motion to Value is used to determine the value of a debtor's primary residence in order to force junior lien holders to reconvey a lien or to "strip a second mortgage". This is done by proving that the amount owed on your senior mortgage is higher than your home's fair market value. If the motion is granted, the creditor would have to reconvene the lien and the money owed would be considered unsecured debt.
You can also file a Motion to Value on your vehicle debt, if you wish to reduce the amount owed. If the motion is granted, the court will then establish your vehicle's fair market replacement value. If the court finds that the fair market replacement value is higher than what you owe on the vehicle, it will lower the secured liability to the replacement value. The balance will be considered general unsecured debt.
The same calculations and principles apply to personal property, such as electronics and furniture.
Filing Motions to Value can help save a significant amount of value under your Chapter 13 bankruptcy.
Motion to Avoid Lien
A creditor may sue you for debt owed to them when you fail to make your repayments. If they win the lawsuit and they still can't collect the money, they may file a judgment lien on your property. If you sell the property, you must account for it. When you file for a Chapter 13 bankruptcy, you can avoid a Motion to Avoid Lien, provided you file a Motion to Avoid Lien and argue - using oral arguments - that there is no property equity to support a judicial lien because it impairs your exemption of the property.
Debtor's Motion to Incur Debt
When you file a Chapter 7 or a Chapter 13 bankruptcy in California and you obtain a discharge of debts, you will no longer be personally liable for your consumer debts. Since it can take up to five years to resolve a Chapter 13 bankruptcy, you may run into inevitable emergencies during the process. That means that you may require a loan or consumer credit to handle a medical emergency, or an urgent household or vehicle repair. You will need permission from the bankruptcy trustee or administrator to borrow money during your bankruptcy. The request for permission may be informal, or it may take the form of an informal motion.
Motion for Relief from Automatic Stay
Creditors use a Motion for Relief from Automatic Stay to request that the court lifts the protection afforded to the debtor by filing for bankruptcy. The creditor essentially asks for permission to pursue non-bankruptcy rights in order to foreclose on a debtor's home, or to repossess their vehicle. Knowing how to respond to such a motion will make the difference between keeping your home or losing it.
Motion to Extend Automatic Stay
If you have had a previous bankruptcy case pending within a year of your current case, your automatic stay is only valid for 30 days from filing. However, you may use a Motion to Extend Automatic Stay to ask for a longer stay, provided you can prove that your current case will be successful and that it was filed in good faith.
Motion to Initiate Automatic Stay
If you have had two previous bankruptcy cases pending within one year of your current case, the automatic stay will only go into effect when you file the most recent case. This motion (Motion to Initiate Automatic Stay) is similar to the Motion to Extend Automatic Stay in the sense that you are requesting that the court initiate the stay immediately.
Motion of Objection to Claim
When you file a bankruptcy case, you must file a variety of documents, including a list of all your creditors to whom you owe money. However, creditors must file a proof of claim in order to be eligible for payment. Some creditors may file proof of claim documents that indicate that you owe them much more than you actually do. They may also claim that some of your debt is secured to property, when it is not. When this happens, your bankruptcy attorney must file an objection and proof that the creditor is in the wrong. If your objection is allowed, the court will allow the creditor to file a claim up to an amount deemed valid by the judge.
Motion to Dismiss
During the bankruptcy case, you will have to abide by several different requirements through the entire process. The average Chapter 7 case lasts approximately three to four months, while a Chapter 13 case can remain active for up to five years. If you fail to fulfill any requirement during this time, a creditor or bankruptcy trustee can submit a motion to dismiss the case. If their argument is successful, the judge will immediately dismiss the case. Working with a knowledgeable bankruptcy attorney can help you avoid being placed in such a position.
Motion Work in Bankruptcy: Notice of Motion
Whenever someone submits a motion, it must include a separate Notice of Motion, which contains:
- A brief summary of the motion's nature
- A deadline for filing your response
- Date, location, and time of the hearing (if applicable).
Both the Motion and the Notice of Motion must be served upon all relevant parties according to the Federal Rules of Bankruptcy Procedure and Local Bankruptcy Rules in a timely manner. The correct serving of the Motion and Notice of Motion is key to follow due process, and if the documents are not served in a timely manner, it may delay ruling or it may result in the motion being denied. In some cases, it is possible to serve someone electronically.
Served parties may file and serve their written response to a motion within a specific deadline, which is usually fourteen days before a hearing. You may use the response to either oppose or agree with the action requested in the motion. If you decide to oppose the action, you must provide your reasons as to why you are opposing the motion, and include supporting evidence.
Finally, the court will enter an order and the judge will either grant or deny the motion, or schedule a Motion Hearing, where each party will have the opportunity to argue their position in response to the judge's questions that are pertinent to the law or to the fact. The judge will then decide on the motion and call an order. The judge may also permit an oral motion during the hearing or trial.
How to File Motion Work in Bankruptcy
Bankruptcy law in California is complex and time sensitive, which is why it is advisable to enlist the services of an experienced San Diego Bankruptcy Attorney to guide you through the process.
You can file motion work in bankruptcy cases in person or by mail, but remember that there are tight deadlines.
- Use Judicial Council forms, or make sure that your documents follow California Rules of Court requirements and that you follow the local rules for filing, which may include local forms or special cover sheets.
- When you hand your papers in the court, be sure that you have the originals (which the court will keep) as well as at least two copies of all the documents. Your copies will be stamped "filed" and returned to you. Be sure to make more copies of the stamped documents.
- When you file your papers, you should always use the correct case number.
- Avoid filing by mail if you are under tight deadlines, as you may miss deadlines.
- Call the court clerk to confirm:
- The court's mailing address
- How many copies of your documents are required;
- Whether you should include a self-addressed, stamped envelope;
- How much you must pay in filing fees and which payment methods are accepted;
- And any other rules.
Be sure to take extensive notes as you go through the process, to ensure that you don't miss a crucial step that may jeopardize your financial future. Hiring a professional bankruptcy attorney will ensure that you have someone with extensive experience of the processes, loopholes and procedures that must be followed. When you are under stress, which you will already be when filing for bankruptcy, you are much more prone to making costly errors or missing crucial steps that can lead to delays or even dismissal of your case.
Hiring an experienced San Diego bankruptcy lawyer will save you an endless amount of time and you will benefit from the fact that the lawyer deals with motion work in bankruptcy cases on a daily basis. Handling these issues that are new to you, is second nature to a professional bankruptcy attorney.
Don't put your financial future on the line by trying to handle your motion work in bankruptcy yourself. Rely on years of professional experience of one of our highly experienced lawyers. Call 619-488-6168 right now to schedule an initial case assessment with a San Diego Bankruptcy Attorney who can handle your motion work in bankruptcy on your behalf.
