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Sample Response Opposed to Motion for Relief

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  • Sample Response Opposed to Motion for Relief


  • #2
    Thanks for the example, but that one is not well written. Of course, a person would need to look at the Motion for Relief from the Automatic Stay themselves to determine which paragraphs they admit or deny, but it's very simple. I will say, that any request by a Pro Se filer should be liberally construed, so a Judge would read what you wrote and need to figure out what you're doing.

    I think it's a good start. I'm not sure it's the same in all Districts, but in mine, we aren't required to file Oppositions or Objections (or Answers) to contested matters. (Unless a Judge directs (compels) us to file a Response, or the Movant is using negative noticing and we want to contest the matter).

    Since the Motion for Relief from Automatic Stay is done as a contest matter and not as a complaint (in most Districts), filing an Objection or Opposition is usually the way to answer the motion.

    Complaints (adversary proceedings/AP) are a different animal and the response would be more akin to answering a Summons.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

    Comment


    • #3
      Thanks for the feedback on that justbroke. Negative noticing, I understand. Being compelled by the judge to file an answer, I understand. What I would need to research is whether an answer is required in my district, if that ever comes up in my case.

      Comment


      • #4
        Originally posted by tigergem View Post
        What I would need to research is whether an answer is required in my district, if that ever comes up in my case.
        A response (objection, opposition) is always "required" if you contest the matter. Otherwise, responses are unnecessary if you are not contesting the matter and the Judge hasn't compelled a response.

        Sometimes a Consent makes something speed up quicker... such as an unopposed Motion for Relief from the Automatic Stay.
        Last edited by justbroke; 12-19-2009, 02:17 PM.
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog


        I am not an attorney. Any advice provided is not legal advice.

        Comment


        • #5
          Well. Unfortunately, the only creditor that would have reason to file such a thing, and is possibly just ornery enough to do it is the one I would oppose. That is why I am cleaning my gun...(figuratively, of course.)

          Comment


          • #6
            Do anyone have any suggestions on writing a response that will get approved?

            Comment


            • #7
              Please Help!


              I first requested a forbearance back in March 2009, when I realized I was going to need it. The representative told me to wait for someone to call me after I completed the application online. I waited for about two weeks, and then I decided to call at least twice a week. Each time I was told that someone will contact me.

              When completing the online application, it asked how much can you pay right now? I inserted $200.00. So, I sent $200.00, because I believed this is what they were expecting. My $200.00 was returned! I didn’t think there was going to be a problem with Suntrust since my second mortgage modified my loan within two weeks.

              After about 2 months, I was finally told that my loan was sold to Wells Fargo and Wells Fargo will not allow forbearances. WELLS FARGO! Why couldn’t they have told me this every week I called. I was then told to complete a modification package. I completed the modification package twice. Even though they said I would be contacted after the second completion, I was told they never received it even though I have proof of sending it at least five times. I asked if I could pay something before I received the foreclosure papers, I was told NO! “Just wait to hear from them”. They NEVER EVER CONTACTED ME. I did all of the calling.

              I never received a notice informing me that Wells Fargo owned my loan. The law states that each time a mortgage changes hands, the sellers are required to sign over the mortgage notes to the buyers. However, in the rush to originate more loans during the U.S. mortgage boom, from 2003 to 2006, that assignment of ownership wasn't always properly completed.


              U.S. Bankruptcy Judge Samuel L. Bufford in Los Angeles issued a notice last month warning plaintiffs in foreclosure cases to bring the mortgage notes to court and not submit copies.
              ``This requirement will apply because developments in the secondary market for mortgages and other security interests cause the court to lack confidence that presenting a copy of a promissory note is sufficient to show that movant has a right to enforce the note or that it qualifies as a real party in interest''.



              Does anyone have any suggestions on how to put together a good response for a MOTION OF RELIEF? Your assistance is appreciated.

              Comment


              • #8
                Originally posted by bk7oregon View Post
                Do anyone have any suggestions on writing a response that will get approved?
                I don't understand your question? Responses don't get approved. They are just answers to avoid a default judgment or a non-hearing default order being filed.
                Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                Status: (Auto) Discharged and Closed! 5/10
                Visit My BKForum Blog: justbroke's Blog


                I am not an attorney. Any advice provided is not legal advice.

                Comment


                • #9
                  I was sent a NOTICE OF HEARING ON MOTION FOR RELIEF FROM DEBTOR'S AUTOMATIC STAY IN A CHAPTER 7 BK.

                  I want to keep my home.

                  The court wants a response. So, I would like to know what would compel a judge to not lift the Automatic stay while I continue to try and work something out with my lender.

                  Also, how much time does the court system usually grant you if they grant you more time?

                  Comment


                  • #10
                    Originally posted by bk7oregon View Post
                    I was sent a NOTICE OF HEARING ON MOTION FOR RELIEF FROM DEBTOR'S AUTOMATIC STAY IN A CHAPTER 7 BK.
                    You need some basis for which relief should be denied the creditor. If you read any lender's (creditor's) rules on forbearances and modifications, they clearly indicate that debt collection will continue up to and including foreclosure.

                    There is no way to compel them to continue to work with you. The fact that you file a Chapter 7 is very very telling to and compelling upon the creditor to continue the foreclosure process. The likelihood of the Court allowing you to reaffirm the debt is extremely low, so the creditor is likely to be stuck with the home and no recourse.

                    Originally posted by bk7oregon View Post
                    Also, how much time does the court system usually grant you if they grant you more time?
                    They usually don't unless you get an "agreed" upon or stipulation to allow more time. You need to file a response in the time period listed since this is a negative notice motion.

                    Now as for your strategy, I personally can't help you. You are asking for very specific legal advice and strategy on how to, basically, stymie the Motion for Relief From Stay (MFRS) via the "Produce The Note" defense. You may actually have better luck in the local court, by allowing the MFRS to be granted, and dealing with this in the local (non-bankruptcy) courts.

                    If you really believe you have (Promissory) Note issues, then you should probably retain counsel that specializes in forensic Note examinations.

                    Were you in foreclosure before you filed for Bankruptcy? If so, is your (foreclosure) case still pending? Why are you trying to keep this home? Do you have equity?
                    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                    Status: (Auto) Discharged and Closed! 5/10
                    Visit My BKForum Blog: justbroke's Blog


                    I am not an attorney. Any advice provided is not legal advice.

                    Comment

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