What form do I use to respond to Motion for relief from Automatic Stay

[Warcraftin]

New to site, was looking all over online for some official form to use to respond to a Notice of Motion for Relief from Automatic Stay.

Is there a specific form to use? If so where can I find it, what is it called?

If there is no specific form, is there a proper header to use to create, do I mail it to all parties or just file it with the bankruptcy clerk?

Does anyone have a real response or a link to a real response. I would like to see the format used to respond.

---------------------------------------------------------------------------
A little info about my case, I filed Ch7 pro se on 11/4/09, went Meeting of creditors around 12/3. Have a home 8 months behind on payments, just delaying as long as possible. Home Value $180,000 amount owed $280,000. I filed to redeem the house. If anyone knows any delay tactics please reply with those as they would greatly help.

[Bell30656]

This may take some research on PACER. You may have to surf a few bankruptcy cases in your area with the same situation. Then copy/adjust the documents to fit your situation. Are you filing Pro Se or do you have an attorney. If you have an attorney the answer should be coming from his/her office.

[HHM]

There is no standard form for responding to a Relief Stay motion.

Essentially, you treat a MTRL like a complaint. All you need to do is respond to the allegations by either "admitting", "denying", or "Lacks Sufficient Knowledge". You will also want to throw in some counter claims (Servicing Company Lack standing, breach of good faith and fair dealing, etc etc).

Be careful, by filing a response, a hearing will be set before the BK judge. If you have no basis for opposing the motion, he could make you pay the lenders attorney's fees (he probably won't since you are pro se, but still, there is a risk).

You will have a hard (and expensive) time combing through PACER trying to find an example, these motions are rarely opposed.

[ForumReader]

This may take some research on PACER. You may have to surf a few bankruptcy cases in your area with the same situation. Then copy/adjust the documents to fit your situation. Are you filing Pro Se or do you have an attorney. If you have an attorney the answer should be coming from his/her office.

I am sorry, but the OP mentioned filing pro se from his/her signature. Maybe the bankruptcy clerk from the local courthouse in his/her area will assist in getting the correct form for him/her to respond to the motion?

[Bell30656]

Some how I wasn't seeing signatures not even my own when using Safari as my browser. Switched to Firefox and I have seen the light... It probably had to do with all those ad blockers...

[aljohnson007]

Why would you want to oppose the motion? If it is from a secured creditor, it usually will be granted anyway.

[BrokeMike]

---------------------------------------------------------------------------
A little info about my case, I filed Ch7 pro se on 11/4/09, went Meeting of creditors around 12/3. Have a home 8 months behind on payments, just delaying as long as possible. Home Value $180,000 amount owed $280,000. I filed to redeem the house. If anyone knows any delay tactics please reply with those as they would greatly help.

If you want to reaffirm the mortgage you need to talk to them and come up with a plan to get current on the mortgage.
If they try to foreclose and you are in a judicial state you can delay foreclosure asking them to Produce the Note.

[JustFileSuit]

If they try to foreclose and you are in a judicial state you can delay foreclosure asking them to Produce the Note.

BrokeMike is exactly right; the odds are probably about 40% that the Proof of Claim filer on the Mortgage and Note is NOT the true Holder of the Note!

They have to produce the Note, AND they have to be properly inscribed as the proper owner of the Note on the face of the Note, with the proper authorities for the signatures (assuming it was sold since inception, which it probably was).

You Object to the Relief from Stay by filing a document titled as " Objection to Motion for Relief from Stay". Therein, you would have to argue that the claimed creditor did not actually purchase the Note (if their filing on the Land title records is one of those fuzzy documents that says they bought it for "Ten Dollars", and it is signed by the buyer as "Attorney in fact" for the Seller, and there is no accompanying Affidavit or Power of Attorney Form filed that represents the authority). to see where this goes, you could Google Judge Drain, USBC, Southern District of New York, case is "In Re Parades." There, upon Objection (and adversary proceeding challenging the Proof of Claim) the lender was unable to demonstrate the ownership of the Note, and Judge Drain vacated the entire mortgage!@ Bye-bye lender and the $455,000.

BUT, the atty in that case was very skilled, and the lender was represented by stumblebums. The transcript of the trial is incredible. When you read this you realize how poorly organized some lenders are.

If the party on the Proof of Claim is not the Holder of the note, and Holder has a very precise and specific legal meaning (*actual possession of the Note and the right to enforce it), then they are going to lose in the USBC. But it is a tough fight.

"IF" your Note has been sold a number of times in the past eight or nine years, then the odds are 40% that the claimant is Not the "Holder" of the Note. Under those circumstances, he has no Standing before the Court, and yes you can defeat the Mortgage claim and end up with the house free, even though you are in a "7"!!! Amazing but true.

[justbroke]

A little info about my case, I filed Ch7 pro se on 11/4/09, went Meeting of creditors around 12/3. Have a home 8 months behind on payments, just delaying as long as possible. Home Value $180,000 amount owed $280,000. I filed to redeem the house. If anyone knows any delay tactics please reply with those as they would greatly help.

Are you actually trying to redeem or just trying to delay? Anything that could be suggested here would drag you into an Adversary Proceeding which could prove difficult to navigate (Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Bankruptcy Procedure).

Some attorneys, and even pro se individuals, have dragged out foreclosure by challenging the Relief from the Automatic Stay, by challenging if the Movant had standing to foreclose on the property. Then, successfully, questioned whether they were the true holder of the Note and that all assignments were properly transferred. They usually lose in the end, but it does drag out the case for months.

Good luck. There's only one (recent) case where anyone ever had their entire mortgage wiped out, and I'm sure that case is going to be appealed. At best, you'll just slow down the foreclosure process. The burden of proof that the Movant does not have standing, will all be on you... and they'll keep reminding the judge of that fact. Especially when they move for summary judgment.

[DeadManCrawling]

In our case, and a few other recent cases our attorney has handled, a copy of the original note was attached to the foreclosure complaint.

Also attached was an affidavit stating that it was a true copy, and they would be happy to bring the original document to court, if the court would like to examine it.

This was a surprise to our attorney, and us. I guess BoA is working on getting their act together.

Attorney said that WE would run the risk of irritating the court if we tried the "Where's the Note" strategy at that point, since they had sworn in a filing, and their attorneys had, that the original note was easily obtainable.

Now, if we pressed the issue, and they DID NOT have the note, but only a copy, I am sure the judge would be upset at their behavior. The fact that a certified copy was attached to the original foreclosure complaint was a surprise, though.

[JustFileSuit]

[QUOTE=justbroke;362256]

Some attorneys, and even pro se individuals, have dragged out foreclosure by challenging the Relief from the Automatic Stay, by challenging if the Movant had standing to foreclose on the property. Then, successfully, questioned whether they were the true holder of the Note and that all assignments were properly transferred. They usually lose in the end, but it does drag out the case for months.

You can expect it to go on for over a year.

Good luck. There's only one (recent) case where anyone ever had their entire mortgage wiped out, and I'm sure that case is going to be appealed.

Actually, there are now TWO such cases, both recent. There are also a number of cases where the foreclosure process has been dismissed (See: In Re Foreclosure Cases, USDC ND Ohio (Cleveland), Judges Boyko and O'Malley). There are also cases where the Court refuses to advance the foreclosure process until the LENDER proves that it is the Holder of the Note (See: Judge Schenck, Kings County Court, Brooklyn NY).

At best, you'll just slow down the foreclosure process.

I have seen cases where the "lender" wearies and just sells the Note to the next bottom-feeder, and you get to do it all over again

The burden of proof that the Movant does not have standing, will all be on you... and they'll keep reminding the judge of that fact.

Unless Standing by Ownership and Holder of the Note has been established in a State Court (or USDC) and the Rooker-Feldman Doctrine kicks in, the burden to demonstrate that the party filing the proof of claim is the Holder remains on the Holder, not the debtor.

Especially when they move for summary judgment

. Yup, guaranteed that they will do exactly that. JustBroke has hit that nail square on the head; that is classic tactics. It is a tough row to hoe, but summary judgment rules require that all facts and inferences not proven by the Movant shall be held in favor of the respondent... So it is not hopeless. Also it really runs up their bill. BUT: you really do have to have some courtroom experience or they "eat" you. Nobody said the Court was fair; all it is, is a forum. You have to slug it out yourself. (Yup, that makes is uneven, and unfair, but that is the way it is

[JustFileSuit]

[QUOTE=DeadManCrawling;362276]

In our case, and a few other recent cases our attorney has handled, a copy of the original note was attached to the foreclosure complaint.

So now take a really, really good look at the Note copy that they attached. Was the Note ever sold during its life? Are there "endorsements" on the Note to show that it was transferred? If the signatures are by the Buyer with "Attorney-in-fact" claims attached, is there a certified copy of the Power of Attorney document on file at the Land title records Office - and attached to the filing?

Also attached was an affidavit stating that it was a true copy, and they would be happy to bring the original document to court, if the court would like to examine it.

So if it averrred as a true copy, and the document has no transfers recorded on it, and the lender you are facing in Court is not the lender you originally signed with, then they have a Real Problem. They just certified the truth of a document that is not true. Time for sanctions. Alternatively, time to file for a vacating of the Proof of Claim (their "true copy" shows that they are not the Lender of record, etc

Attorney said that WE would run the risk of irritating the court if we tried the "Where's the Note" strategy at that point, since they had sworn in a filing, and their attorneys had, that the original note was easily obtainable.

remember the definition of Holder. IF the Note was always in the hands of the Servicer, not the Lender, or in the hands of the servicer's attorney, not the lender, then the Lender never had possession of the Note - a prerequisite to status as Holder. that would defeat them is Stte Court. I invite comments on the prospects of defeating them in the context of the BK Court. Anybody?

Now, if we pressed the issue, and they DID NOT have the note, but only a copy, I am sure the judge would be upset at their behavior. The fact that a certified copy was attached to the original foreclosure complaint was a surprise, though.[

If they have produced a certified copy, then they have the original; that is how the cert was generated. Still, look at all the endorsements. You would be amazed at how many are all screwed up (mostly because they ended up in pools in Indenture trust deeds, all sliced and diced.) And watch out for anything that records "MERS" as the Lender or Holder. MERS is a registration agent, and by definition CANNOT be a Holder of a Note!!!

[BrokeMike]

So if it averrred as a true copy, and the document has no transfers recorded on it, and the lender you are facing in Court is not the lender you originally signed with, then they have a Real Problem. They just certified the truth of a document that is not true. Time for sanctions. Alternatively, time to file for a vacating of the Proof of Claim (their "true copy" shows that they are not the Lender of record, etc

I have same thing with my mortgage. After I bought the house the original lender sold the mortgage to a different company and they went out of business.
The transfer is not recorded with the county where I live in the name of the new lender.
I am curious to see who's going to foreclose.

[justbroke]

remember the definition of Holder. IF the Note was always in the hands of the Servicer, not the Lender, or in the hands of the servicer's attorney, not the lender, then the Lender never had possession of the Note - a prerequisite to status as Holder. that would defeat them is Stte Court. I invite comments on the prospects of defeating them in the context of the BK Court. Anybody?

I have read several cases where they were able to drag it out, in Bankruptcy Court, but the lender eventually prevailed. Standing in the Bankruptcy Court (BC) sense is whether you are a party in interest, and the Movant does need to show standing. If it's the servicer, they should file an affidavit that their servicing or pooling agreement allows them to do so. I've found that they never seem to file any affidavit, only a "true and correct copy" of the Mortgage and Note. This is a place where you can certainly challenge the Motion for Relief From Stay (MFRS) and probably be successful.

As to assignments and whether the Movant is a "party in interest", some States don't even require assignments to be recorded, but other States do. In Florida, for example, assignments must be recorded, but that only affects lien priority... not standing. The Movant can prove Standing in Florida by showing a good flow of the Mortgage/Note and the assignments... recorded or not.

And watch out for anything that records "MERS" as the Lender or Holder. MERS is a registration agent, and by definition CANNOT be a Holder of a Note!!!

While I'd say, yes, watch out for MERS, I'll also say that... MERS has successfully overcome the hurdle of "having standing" in Florida. It was an en-banc decision from Florida's 3rd DCA. The judges, in their unanimous 3-0 opinion, the Judges called MERS a "modern innovative instrument of commerce," and concluded that "no substantive rights, obligations or defenses are affected by the use of the MERS device, [and] there is no reason why mere form should overcome the salutary substance of permitting the use of this commercially effective means of business."

[lrprn]

A question for Warcraftin (the OP) - you say you want to delay your foreclosure. Even if you are able to delay now, you will eventually lose the house anyway if you can't catch up on the missed mortgage payments and continue to make the payments on time going forward to keep the house. Can you do this? Or are you trying to delay the foreclosure for another reason?