Time frame for motioning for a relief of stay?

[007nco]

does the relief just expire and a creditor can attempt a repossesion? The creditor claims it is a secured item. (water fixtures on a farm/residence) although no contract was signed stating it as being secured. It would cost well more to sue and perfect a lien by judgement, add in the costs to remove it than the resale value would be though this creditor may be relentless due to spite. (they have spent many thousands trying to collect this in atty fees already) I know it cannot be repossed w/o trespass issues for them. any suggestions or advice please.

[CindyLou]

the would have to file a motion to lift the stay and you would received notice of that.

[007nco]

I guess my question is; if they do not get a relief of stay. (they did already once and it was dismissed for procedural violation) If they do not get a relief of stay; when the BK is discharged which the court clerk says it will be very shortly as date for objections has passed; is the stay expired at the end of the discharge? Or do they have to quit attempting to collect or pursue judically?

[lrprn]

If a creditor attempts to collect on a debt discharged in bankruptcy, notify your lawyer immediately because you can bring suit for trying to collect on a discharged debt and win.

If your lawyer isn't interested, then contact a NACA (National Association of Consumer Advocates) attorney in your area - http://www.naca.net/debt-collection-abuse/ - check the Find an Attorney tab. Most work on contingency - they take a portion of whatever you win in court against the creditor rather than having to pay them a fee upfront.

[007nco]

Thanks, that's a good call I believe. I will see what happens (if they try to come and repo stuff after the discharge then) I guess it boils down to whether or not a water fixture can be called a secured item or not. Once the discharge is complete, I have to go and make sure the lien they were unable to perfect is removed as well. Funny thing is, this particluar creditor causing so much grief is actually one of the lower end of the dollar figure creditor listed, I didn't have the folks from AMEX pulling all these stunts and I owed them a heckofalot more. go figure.

[HHM]

It may very well be a secured item, you will have to check with state law, but generally speaking, any contractor or supplier can have a lien on property that was used to improve real property (with or without a contract). This issue sounds like it would fall under "mechanics liens" law. Keep in mind, liens survive BK, and from the way you describe it, water "fixtures" on a farm and residences, that is text-book mechanics lien. Most states have fairly strict notice requirements for mechanics liens, but perfecting a mechanics lien does not require judicial action, it generally only requires proper compliance with the notice requirements. If they do try to collect non-judicially after BK, the burden will be on you to re-open your BK case and file a complaint for a violation of permanent injunction (assuming, of course, you actually have a case for a violation).

I hate to say it, but based on the info you provided, I think you are on losing end of this issue. However, all that means is that they can keep a lien on the property, in most states, no other action can be taken except the placement of the lien.

[007nco]

Appreciate that HHM; We did speak to a local attorney that said they had missed dates it what he said was perfecting the lien (we were going to file dispute their bill (before we decided to BK) and work as it was shoddy and wouldn't ever pass inspection. Regardless, they had filed a suit agains us seeking judgement, but we filed the BK before it went to court.
So what would happen if they did manage to perfect a lien on the property anyway. Would it just sit collecting their 21% interest rate until we sold or they went out of business etc?

[Knew_it_all]

does the relief just expire and a creditor can attempt a repossesion?

Yes. The automatic stay is in place until one of two things happen: Either the creditor requests and is granted relief or the bankruptcy is discharged. Both of those events trigger an end to the automatic stay.

At this point the creditor (assuming it is a secured creditor) can repossess the security.

Typically, the courts will grant relief to any secured creditor without any problem at all. Why? Because the debtor is usually months behind in payments and the risk to the creditor is substantial. Especially if the security is a depreciating asset, like an auto or furniture. Remember, creditors have rights just like debtors do.

In addition, you typically will not receive notice that the stay has been lifted. Why? Well, if you were late on payments and were in the process of being repossessed, you already have received notice of that fact. Even it you worked out an agreement with the creditor, you typically will not have to be notified of a second repossession attempt. Your first notice, even if months before, will suffice. Good luck