When do I answer this Motion to Lift Stay? No date given on Notice filed with Court!

[nmtechie]

How would you handle this? I signed for a certified letter from a creditor on 03/02/07 included in this letter was a Motion to Lift Stay. When he filed it on that 03/05/07, my court docket says that there was date given in a certificate of mailing - so they can't count the 20 day objection. The letter was postmarked 2/28/07. So do I object on the 18th, 22nd, or 25th of this month? Clerk's office can't tell me anything since there is no certificate of service (mailing with the Court).

Would you file an objection and an answer? Answer to the MTLS and Objection that he should be required to renotice ALL parties since he failed to provide a date of mailing according to local bankruptcy rule XXXX.

Since I signed a return receipt, certified mail on 3/2/07 would that be my 20 day objection count or the date of postmark 2/28/07.

Since 3/18/07 falls on a Sunday, does that mean I need to file an objection/answer Friday or Monday?

[lrprn]

nmtechie, you are asking for very specific legal advice about when and how to respond to a creditor's notice of their attempt to lift your automatic stay in court within the next 1-2 weeks. As knowledgeable as our members and moderators are, none of us are bankruptcy lawyers who can provide the accurate and timely legal advice you need in this situation.

Have you talked to your Ch 13 lawyer about this? What does he/she say?

[HHM]

The preliminary question is whether it is worth the time and effort to respond. After all, to oppose a motion to lift stay, you need some legal basis to do so, do you even know if you have one?

As for the technicalities, The certificate of mailing is the proof that the filer of the motion shows the court that they actually served you with the document. Odds are you will receive the certificate of mailing in the mail within a few days.

As for when to file...Motion Practice is generally controlled by "local rules". So deadlines, if any, will be contained in your districts local rules of bankruptcy procedure.

To help clarify some of the procedural terms: a Motion is NOT a Complaint, thus you do NOT "answer" a Motion. Instead, you "oppose" a Motion. So, what you would file is "Debtor's Opposition to so-and-so's MTLS".

[nmtechie]

There is no certificate of mailing. It is required to be filed with the motion for relief from stay in our district. He also made several blatant errors in his motion. He failed to notice properly...he has encumbered the property to where it cannot be refinanced unless he pays a judgment lien that is on the property...he also stated there was no insurance and there is.

[HHM]

Maybe it would help if you filed us in on the background of what is going on.

Do you have a PACER account...if not, you should get one and see what was actually filed.

When it comes to notice, the court (believe it or not) is not very interested in technicalities)...sure, they don't want blatant disregard for the rules, but at that same time, if you go into to court and say
You: this Motion is defective because it was not properly noticed because the creditor failed to include a certificate of mailing
Judge: Counsel for Creditor, is this true...
Counsel for Creditor: yes, but we sent it by certified mail, return receipt and I have the return receipt right here.
Judge: (to You) did you receive the body of the Motion...
You: Yes
Judge: then you have seen what the legal and factual arguments that are contained in that motion.
You: yes
Judge: did you, or a member of your household sign the the certified mail receipt.
You: yes
Judge...then let's proceed.

As for the factual issues, unless you decide to fill us in, there is not much for us to say. Even if all you said is true, there is still the legal question of whether you have grounds to oppose the MTLF, the new BK code has made it very easy to lift stay...especially in the real estate context which it sounds like this issue is concerning.

I am just trying to be realistic here...but I want you to win.

[aa06a47]

1) File as quickly as you can. Don't try and do it the last minute.
2) See a lawyer, if you file pro-se, see if you can hire one to take care of this.