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Home Bankruptcy Motions

Bankruptcy Motions

A motion is a request to the Bankruptcy Judge, to issue an Order that directs doing something, or that prohibits doing something.

Depending on what Order the Motion moves for (ie, requests the Bankruptcy Judge to grant), some Motions can only be brought by the bankruptcy debtor, some motions can only be brought by a creditor of the bankruptcy debtor, some motions can only be brought by the bankruptcy 7, 12, 13 or 11 Trustee appointed in the debtor’s bankruptcy case, and some motions can only be brought by the Office of US Trustee (which is a part of the US Department of Justice, and which has the job of trying to prevent abuse of the bankruptcy system).

The party making the motion files the motion, other parties in interest have a specified amount of time to file Oppositions to the Motion, the party that files the Motion gets to file a Reply to the Opposition, and then (usually) there is a hearing with the Bankruptcy Judge, where the competing parties argue their positions, and then the Judge rules on the Motion. However, there are some kinds of motions that can be brought pursuant to a local rule which allows the Bankruptcy Judge to decide the Motion, without ever holding a hearing, if the party making the Motion gives proper notice of the Motion, and if no one files a timely Opposition and Request for hearing with the Judge.

In some bankruptcy cases, no motions at all are filed. In a significant number of Chapter 7 bankruptcy cases, filed by individuals, no motions at all are filed. However, even in individual Chapter 7 bankruptcy cases, there may be motions filed.

One of the most common motions in all Chapters (Chapters 7, 11, 12, 13) of bankruptcy cases is a secured creditor’s Motion that moves for relief from the bankruptcy automatic stay (11 USC 362), to allow the secured creditor to proceed, as allowed by non-bankruptcy law, with the secured creditor’s nonjudicial foreclosure of the bankruptcy debtor’s house, or of some other real property owned by the bankruptcy debtor, because the bankruptcy debtor has defaulted on making loan payments the debtor owes to the secured creditor, per contract, secured by a lien on the real property.

A creditor with a lien on the bankruptcy debtor’s car, truck, motorcycle, boat or plane, may move for relief from the bankruptcy automatic stay to proceed, as allowed by non-bankruptcy law, to repossess the bankruptcy debtor’s car, truck, motorcycle, boat or plane, on the grounds that the bankruptcy debtor has defaulted in making monthly payments owed to the secured creditor on the debtor’s car, truck, motorcycle, boat or plane.

The Office of US Trustee may make a Motion moving the bankruptcy judge to throw an individual who is a “consumer” bankruptcy debtor out of Chapter 7, if the debtor has filed a Chapter 7 bankruptcy case, and the Office of US Trustee believes it can prove, to the Bankruptcy Judge, that the debtor is “abusing” Chapter 7, by filing Chapter 7 bankruptcy, instead of the debtor filing one of the “repayment plan” types of bankruptcy (ie Chapter 13 or Chapter 11).

A Chapter 7 Trustee, or a creditor, or the Office of US Trustee, may file Motions Objecting to Exemptions that the individual bankruptcy debtor has claimed, in that individual debtor’s exemption schedule (Schedule C of the bankruptcy schedules).

A bankruptcy debtor may file a Motion to have the debtor’s bankruptcy case converted from one Chapter of bankruptcy, to another Chapter of bankruptcy. For example, a debtor may file bankruptcy in Chapter 7, but later move the bankruptcy judge to order debtor’s Chapter 7 case converted to Chapter 13, or to Chapter 11.

A bankruptcy debtor may file a Motion to have the debtor’s Chapter 13 bankruptcy case (individual repayment plan Chapter of bankruptcy) dismissed, if the bankruptcy debtor no longer wishes to be in Chapter 13.

In addition, creditors and Trustees and the Office of US Trustee can file Motions to convert or dismiss debtor’s bankruptcy cases, under specific circumstances.

All of the above listed Motions can only be filed in the bankruptcy case, itself.

Parties that wish to file a Motion usually hire attorneys to prepare and file the Motion, Reply to any Opposition, and then argue the Motion to the bankruptcy judge. Our Law Firm is available to be hired to represent parties in preparing and filing Motions, and to appear in Bankruptcy Court to argue the Motion to the Bankruptcy Judge.

When a Motion is filed in the bankruptcy case, requesting an Order against the bankruptcy debtor, it is almost always essential for the bankruptcy debtor to hire a bankruptcy attorney to prepare, timely file, and then argue to the bankruptcy judge, an Opposition for the debtor, to the Motion. Our Law Firm is available to be hired to represent debtors in preparing and filing debtor’s OPPOSITIONS to Motions, and then appearing in Bankruptcy Court to argue debtor’s OPPOSITION to the Bankruptcy Judge.

If the bankruptcy debtor does not timely file Opposition to a secured creditor’s relief from stay motion that moves for an order allowing the secured creditor to sell the debtor’s house or other real property in a nonjudicial foreclosure sale, the result is that the debtor usually loses the debtor’s house or other real property, in a nonjudicial foreclosure sale carried out by the creditor, because unopposed Motions very often get granted by the bankruptcy court. Similarly, where a secured creditor moves for relief from stay to repossess the debtor’s vehicle, if the debtor fails to file a timely Opposition to the motion, the result is usually that the debtor loses the vehicle, because the secured creditor repossesses and sells the vehicle, because unopposed Motions very often get granted.

In addition to all the above described Motions, and many additional kinds of motions, that are filed in the debtor’s bankruptcy case, there is a second group of Motions that can only be filed in bankruptcy adversary proceedings (read discussion of bankruptcy adversary proceedings on this website). These include Motions for summary judgment or summary adjudication, motions to dismiss the adversary proceeding, discovery motions, etc. A plaintiff in an adversary proceeding, or a defendant in an adversary proceeding, are very likely to lose the adversary proceeding, unless that party hires a competent bankruptcy lawyer to represent that party, in bringing, or in defending against, the adversary proceeding. Our law firm is available to be hired to represent parties in bringing, and in defending, adversary proceedings. When our law firm is hired to represent, in an adversary proceeding, that representation includes that our law firm brings, or defends against, motions that made in the adversary proceeding.

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March IS A TRIPLE CERTIFIED BANKRUPTCY SPECIALIST ATTORNEY: In addition to being a former US Bankruptcy Judge, Attorney March is a triple certified bankruptcy specialist attorney. March is certified as a bankruptcy specialist attorney by the State Bar of California Board of Legal Specialization. In addition, March is certified by the American Board of Certification (nationwide certification) as both a consumer bankruptcy specialist attorney, and as a business bankruptcy specialist attorney. Very few attorneys are triple certified bankruptcy specialists. Many attorneys who claim to be “bankruptcy attorneys” are not certified by the California State Bar, or by the American Board of Certification, or by any specialist certifying agency at all.

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