What is a Motion for Relief

Hello, my name is Jeff Kelly I am a bankruptcy attorney from Rome Georgia, and today I want to talk to you about what is a motion for relief. A motion for relief is basically a request by your creditor to get permission from the Bankruptcy Court to take something and sell it and dispose of it.

For example, let's say you've got a car and you're in Chapter 7 and you want to surrender this car. Well before this creditor is going to be able to take the car and sell it they've got to get permission from the Bankruptcy Court.

Why do they have to do that?

Well hypothetically let's just say there's equity in the car. Let's say they're going to sell this car there's going to be some excess cash left over. Well, the chapter 7 trustee is going to want to work out an agreement with that creditor that any excess cash will be paid to them.

So if you get a motion for relief and you're in a chapter 7, as a general rule, you don't have to go to that hearing and your attorneys going to take care of that. But any time you get served with any type of motion with whether you're in a chapter 7 or chapter 13 call your attorney and check in with them.

Now another situation where you're going to see a motion for relief get filed is for houses. Again if you're surrendering a house and in Chapter 7 and a motion for relief gets filed you've got nothing to worry about because you're surrendering it anyway.

However, what if you're in a chapter 13 and let's say you want to keep this house and something happens during the case. Let's say your out of work for a while and you miss some of the mortgage payments. Well after you miss some of those mortgage payments that creditor is going to turn around and file a motion for relief.

They're also going to charge you anywhere between 650 and 850 dollars in attorneys fees for filing that motion.

Now what you can do is call your attorney and maybe you can work out some type of arrangement to get those payments caught up. As a general rule in the Northern District of Georgia, most mortgage companies are willing to take the arrears and spread them out over six months so you're going to have to make an extra payment. You will have to make your regular payment first of each month and then you're going to make a second payment around the 15th of the month. So if you can come up with a plan to catch those payments up you can save your house even though a motion for relief has been filed.

Now if you're in a situation where you're definitely going to lose the house there's no way you can afford to make the future mortgage payments. A lot of my clients will ask me, "How fast do I have to move out of the house?" Some clients want to get out the day after the motion of relief is filed. I say stay in the house as long as you can. Under Georgia law, they're going to have to advertise your house for four consecutive weeks before the foreclosure date. So you should get plenty of notice before you have to move out.

Another thing is a lot of these mortgage companies - even after they get an order from the Bankruptcy Court to get permission to start foreclosure - a lot of them drag their feet. And some mortgage companies are even willing to work out a loan modification plan with you. Maybe that's a possibility (you are at their mercy) so if they won't start foreclosure proceedings after a motion for relief is granted they can, but maybe they might be willing to work out a loan modification with you.

Now, some clients have come in and say, "Hey look I just want to get out of my chapter 13 now. Motion 4 motion for relief has been filed I want to quit my case I'm losing the house anyway." You can quit the case. However, you must understand that when a motion for relief has been filed against you and you voluntarily dismiss your case you cannot refile for 180 days.

So there's a lot of complicated issues that swirl around motions for relief. I encourage you to sit down with your attorney and to discuss them. If you are in the Northern District of Georgia and you wish to discuss them with me you can give me a call at 1-888-832-8249. That's if you're considering filing, but if you already have an attorney you need to talk to them because I cannot interfere with those cases.

But if you've got general bankruptcy cases I want to encourage you to check out my website. I've got over 250 articles on my website about bankruptcy so check it out. We also have a 40-page guide to bankruptcy and you can download that for free.

I wish you the best of luck and if you have any questions you can shoot me an email at jeff@kellycanhelp.com or give me a call at 888-832-8249.

Thank you.