Full question:
What is the legal response to the following motion? Motion for Relief from Stay and Abandonment is one filed under the Bankruptcy code for conditioning, modifying or dissolving the automatic stay imposed by _ 362 of the Bankruptcy Code and for abandonment of property under _ 554 of the Bankruptcy Code. The automatic stay prevents secured creditors from enforcing their lien rights. The stay on abandoned property usually ends on the date of discharge. The secured creditors can ask a Chapter 7 trustee to abandon his or her interest in their collateral. After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate. Secured creditors who are not content to wait for the discharge can request the Bankruptcy Court to lift the automatic stay on their collateral by having their attorney file a written motion.
- Category: Bankruptcy
- Date:
- State: Tennessee
Answer:
A motion for relief from stay and abandonment means that the creditor is seeking to pursue collection action on the debt, despite the bankruptcy filing and decision of abandonment. For example, a bank may file for relief from stay to pursue a foreclosure.
The filing of a bankruptcy case, under any chapter of the Bankruptcy Code, triggers an injunction against the continuance of any action by any creditor against the debtor or the debtor's property. An automatic stay in bankruptcy proceedings immediately stops any lawsuit filed against the debtor and virtually all actions against their property by a creditor, collection agency or government entity. The automatic stay may be a reason for persons to file bankruptcy when they are being evicted or foreclosed on, being found in contempt for failure to pay child support or losing such utility services, welfare or unemployment benefits, their driver's license or job, etc.
Abandonment is also used in bankruptcy law to define what property constitutes the estate of the debtor to be administered by the trustee. Property of the estate may be abandoned at the instigation of the trustee if it is of inconsequential value and benefit to the estate. This method of abandonment has been referred to as "proposed abandonment." Property of the estate may be abandoned pursuant to a request by a party in interest for an order of the Bankruptcy Court directing the trustee to abandon property when such property is burdensome to the estate or that is of inconsequential value and benefit to the estate. This method of abandonment has been referred to as "compelled abandonment." Also, all scheduled property which remains unadministered upon closing of the case is deemed abandoned from the estate and regarded as administered for purposes of closing and reopening the case. This final method of abandonment has been referred to as "deemed abandonment."
Typically, a motion in opposition to the motion for relief from stay and abandonment is filed by the debtor.
Please see the information at the following links:
http://www.casb.uscourts.gov/html/CSD%20Forms/CSD1161.pdf
http://www.tneb.uscourts.gov/opinions/stair/08-03-2005;_Mostoller_v_CitiCapital_Comm_Corp_(In_re_Stetson_Assocs)_04-3234.pdf
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
