Frequently Asked Questions
What is a motion for relief from stay?
Motions for relief from stay, also known as motions to lift stay, are requests from a secured creditor (e.g., a mortgage or auto lender) or landlord to remove the protection of the automatic stay so the creditor can take an action prohibited by the stay. These actions include eviction, foreclosure, and repossession of an automobile.
What is the automatic stay?
The automatic stay is an injunction imposed by the bankruptcy code when a bankruptcy case is filed. It prohibits actions to collect debts while the bankruptcy case is pending. Usually the automatic stay lasts until the debtor receives their discharge at the end of their case. However, the bankruptcy judge can lift the stay to allow certain collection activity before the case is complete.
When would a judge lift the stay?
Bankruptcy law allows a judge to lift the automatic stay for a few different reasons. The most common justification is the debtor’s failure to make required payments. Another justification is a debtor’s failure to maintain insurance to protect the item from loss. For example, most car loan contracts require the borrower to maintain full coverage insurance on the vehicle, and if that insurance lapses, the lender may ask the judge to lift the stay so the lender can repossess the vehicle.
Can the motion for relief from stay be denied?
In some situations, a bankruptcy judge will deny a creditor’s request to lift the automatic stay. If a debtor is current on their payments on the debt at issue, then the judge may deny a motion for relief from stay. The judge would need to see evidence that the payments were current. The judge may continue the hearing to a later date so you can provide the proof or may make a decision that day.
A judge may also deny a request to lift the stay if the debtor had sufficient equity in the property securing the debt that the creditor would not be harmed by a delay in recovering their collateral. For example, if your home is worth $300,000 and your mortgage is only $200,000, you have $100,000 in equity. That’s enough equity to protect the creditor even if they aren’t getting regular payments, so the judge may deny the request to lift the stay. However, the judge may grant the request even if the debtor has equity, especially if the amount of equity is small compared to the amount of the monthly payments.
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