New Petition -- Motion to Extend Stay -- Please Help!

[TurnThePage]

So I filed a Chapter 13 a couple months ago and it was dismissed. After filing a new Chapter 13, how do I file a motion with the Court to extend the automatic stay beyond 30 days? Who gets notified with this Motion to Extend Stay?

[TurnThePage]

I need an answer ASAP, please -- any attorneys willing to offer insight? Des?

[justbroke]

You need to follow the Federal Rules of Bankruptcy Procedure (FRBP) for service and see if your local court has specific local rules. Your district may even have a specific form to use. For example, here's the one from Florida's Middle District...
http://www.flmb.uscourts.gov/proguid...tic%20Stay.pdf

In some districts the following text appears under "Motion to Extend Automatic Stay"... "the movant’s attorney will be directed to prepare, serve, and docket the notice of hearing unless the debtor is pro se. If pro se, the Clerk’s office will issue the notice to all parties and creditors." Take notice of the part underlined.

Generally speaking, whenever you file a paper with the court that affects some party, then you must provide notice (serve the paper) to them. In this particular case, your local district may have the clerk issue the notice (serve the notice) on all the parties and creditors. You can always call your bankruptcy clerk's office and ask a "procedural" question related to a Pro Se extending the stay. They'll help you with anything procedural.

Why was the original case dismissed? Did you not file all your paperwork? Payment? Other issues?

I ask those questions because you'll need to convince the court, in your motion to extend, that you have or will address these issues. The court does not like serial filers who use bankruptcy's automatic stay solely to delay or hinder any creditor from taking action.

[TurnThePage]

Thanks, JB. I appreciate the insight. Last Chapter 13 was dismissed because I couldn't complete all the paperwork on time -- and I still owe the original filing fee. Money is tight. Obviously I realize that I'll have to pay that amount in full if I refile.

But if Bankruptcy cannot help an eviction process, or an illegal, "self-help" remedy by the Landlord, then maybe I have other options / defenses on the state court level.

Interestingly, I still have the 2021 car after the dismissed Bankruptcy. The creditor charged off the entire amount and appears to have completely given up on the repossession process.

[justbroke]

Thanks, JB. I appreciate the insight. Last Chapter 13 was dismissed because I couldn't complete all the paperwork on time -- and I still owe the original filing fee. Money is tight. Obviously I realize that I'll have to pay that amount in full if I refile.

If you file another skeleton Chapter 13, the court may feel that you won't complete it again. Hopefully you a.) will file with all the requisite schedules and forms and day 1, and b.) you contemporaneously file the motion to extend the stay with your enumerated reasons why you won't fail to file the requisite forms and/or make the requisite payments.

Please remember, that in order to have the stay extended, you will need a "substantial" excuse as to why you didn't file the required forms.

If you cannot afford the fees, you can ask the court to allow you to pay in installments.

But if Bankruptcy cannot help an eviction process, or an illegal, "self-help" remedy by the Landlord, then maybe I have other options / defenses on the state court level.

I would guess that if you don't have an "unexpired" lease, then the bankruptcy court would tell you to go to State non-bankruptcy court and deal with any issue there. In fact, other than curing a judgment of eviction, the bankruptcy court doesn't deal with evictions and will send you back to State court.

If you were already evicted and had a money judgment against you, then it may be possible to discharge that in a bankruptcy.

Interestingly, I still have the 2021 car after the dismissed Bankruptcy. The creditor charged off the entire amount and appears to have completely given up on the repossession process.

I wouldn't make any assumptions about this other than that the creditor may repossess the car at any time.

Note: I don't know what you're trying to do, but you may want to think about the purpose of filing Chapter 13. If it's solely to stave off an eviction then I would think about my end goal. I assume that you have a written lease that has expired and you are a tenant-at-will on a month-to-month basis?

[TurnThePage]

Thanks JB. Yes, I am a tenant-at-will, on a month to month basis, since no written contract or lease exists. But doesn't the "automatic stay" in Bankruptcy protect against Landlord retaliation and evictions, since the debtor's property technically becomes property of the Bankruptcy Estate? I would think willful and malicious violations of the stay could be grounds for an Adversary Proceeding against the Landlord.

[justbroke]

Yes. It protects against all creditors, but you still need to have a plan. A bankruptcy is not the way to cure an eviction unless you can actually cure the arrears (quickly). A tenant-at-will has no protection from a future eviction because a bankruptcy protects you from the past debt, not the future debt. Even so, a debtor facing an eviction in bankruptcy must still cure the underlying issue (the arrears).

I would say that a bankruptcy used to stave an eviction on a month-to-month tenancy is going to be just a delay tactic. It -- the bankruptcy stay -- would stave off an eviction for 30 days at most, if the tenant isn't trying to cure the arrears. A smart landlord would immediately file a motion for relief from the automatic stay. I'm sure that you would have listed the landlord as a creditor on Schedule G (unsecured debt) and serve them the bankruptcy notice.

The landlord's reasoning would likely include that it's month-to-month and you are in arrears by at least 2 months and you proposed no plan to cure the arrears within 30 days. The court would likely grant that motion and you're right back in State court.

I would also be careful because if you used the bankruptcy to stay an eviction the last time, the court may not be as nice.

What is your end goal? Are you trying to find a new place to live?

[despritfreya]

Sorry that I am late to the party. Stuff gets in the way. This will only address the Motion to Extend the Stay. Hopefully, you have already filed it and a Hearing has been set. Regardless:

The Motion must be filed AND granted within 30 days of filing. There must be a Hearing so, depending upon local procedure, a Motion for Emergency Hearing must also be filed with a request that the Hearing be held no later than ____, 2023. If approved, the judge can sign a formal Order or the Minute Entry the day of the Hearing. You need to review local procedures.

Here is a sample Motion to Extend - from the Middle District of Florida:

http://www.flmb.uscourts.gov/proguide/documents/Samples/Sample%20-%20Motion%20to%20Extend%20the%20Automatic%20Stay.pdf

My guess is the form of the Motion will work in Washington.

The Motion is served upon all creditors and interested parties. You will need to file a Certificate of Service and attach to it the mailing list used for service. If the Court requires you to notice out the Order/Notice Setting Hearing, then that will also have to be served on all creditors and interested parties.

You mentioned to JB that your prior case was dismissed due to the failure to file documents. I assume you have filed all required statements and schedules, along with the Chapter 13 Plan in your current case. Also, as JB mentioned, you need to describe why you failed to comply with the rules and why such failures will not happen in the future.

Assuming the Motion is granted, be warned. . . If this second case gets dismissed and both dismissals are within 1 year of the filing of a 3rd case, there is no automatic stay in case number 3.

Des.