How to Respond to a Motion for Relief from Stay

Step 1: Read the Motion Carefully

The first thing to do when you receive a motion for relief from stay is read every word of it. Identify the following:

• Which property? The motion will identify the specific property the creditor wants relief on -- a house, a car, equipment, or another asset.
• Which grounds? Look for references to Section 362(d)(1) (for cause / lack of adequate protection), Section 362(d)(2) (no equity and not necessary for reorganization), or both. The grounds determine your defense strategy.
• What facts are alleged? How many payments does the creditor say you missed? What value does the creditor assign to the property? What is the claimed loan balance? Write down every factual assertion so you can verify or challenge it.
• What is the response deadline? The notice of hearing will state when your written response is due. This is typically 14 days from service, but check your district's local rules.

Step 2: Check Your Deadlines

Time is your most critical resource. Under Section 362(e)(1), if the court does not rule within 30 days after the motion is filed, the stay automatically terminates as to the movant. That 30-day clock starts ticking the day the motion is filed, not the day you receive it.

Your response deadline is typically 14 to 21 days after service of the motion, depending on local rules. If you miss this deadline, the court may grant the motion as unopposed -- meaning you lose without being heard.

Mark three dates on your calendar:

1. Response deadline -- The date your written opposition is due.
2. Hearing date -- The date and time of the court hearing.
3. 30-day automatic termination date -- 30 days after the motion was filed. If this date passes without a ruling or continuance (with your consent), the stay terminates automatically.

Step 3: File a Written Response

Your written response is your opportunity to present your side to the court before the hearing. It should address each ground the creditor has asserted and lay out your defenses. A good response includes:

For a 362(d)(1) Motion (Cause / Lack of Adequate Protection)

• Explain why adequate protection exists or how you will provide it going forward.
• Offer specific adequate protection payments -- state the amount and when payments will begin.
• Provide proof of insurance if the lender claims insurance has lapsed.
• If the lender claims missed payments, provide your own payment records showing what you have actually paid.

For a 362(d)(2) Motion (No Equity / Not Necessary)

• Present evidence of the property's fair market value showing that you have equity (the value exceeds the liens).
• Alternatively, argue that the property is necessary for an effective reorganization -- you need the car for work, the house for your family, or the equipment for your business.
• In Chapter 13, explain how the property fits into your plan. A confirmed plan that provides for the creditor's claim is strong evidence of necessity.

File the response with the court clerk and serve a copy on the creditor's attorney and the trustee. Use the court's electronic filing system (CM/ECF) if you have access, or file in paper at the clerk's office.

Step 4: Gather Your Evidence

Do not show up to the hearing empty-handed. Gather the following documents and bring copies for the court and the creditor's attorney:

• Payment records -- Bank statements, cancelled checks, or money order receipts showing all payments you have made to the creditor, both pre-petition and post-petition.
• Insurance declarations page -- Current proof of insurance on the property. If insurance lapsed temporarily, also bring proof that it has been reinstated.
• Property valuation -- If equity is an issue, bring an appraisal, a NADA or Kelley Blue Book printout (for vehicles), or comparable sales data (for real estate).
• Proof of income -- Pay stubs, tax returns, or business records showing you have the ability to make adequate protection payments and fund your plan.
• Your Chapter 13 plan -- If you are in Chapter 13 and the plan provides for the creditor's claim, bring a copy of the plan and any confirmation order.
• Correspondence with the creditor -- Any letters, emails, or records of phone calls where you attempted to make payments or negotiate.

Step 5: Attend the Hearing

This is non-negotiable. If you do not appear, the court will grant the motion as unopposed. Arrive early, dress professionally, and be prepared to speak clearly and concisely.

What to Expect

Most relief from stay hearings are relatively brief -- 15 to 30 minutes. The creditor's attorney will present the motion and summarize the grounds. You (or your attorney) will then present your response. The judge may ask questions of both sides. Some courts hold a preliminary hearing first, with a full evidentiary hearing scheduled later if needed.

What to Argue

Focus on the specific grounds the creditor has raised:

• If the issue is cause / adequate protection: Tell the court what you will pay, when you will start, and how you can afford it. Offer to make the first payment immediately. Courts want to see concrete action, not vague promises.
• If the issue is equity: Present your valuation evidence. If your appraisal differs from the creditor's, explain why yours is more reliable.
• If the issue is necessity for reorganization: Explain in plain terms why you need the property to complete your bankruptcy plan. Be specific about how losing the property would derail your ability to make plan payments.

Step 6: Consider a Consent Order

Before or during the hearing, the creditor's attorney may offer to negotiate a consent order. This is a stipulated agreement where you agree to specific conditions (usually a payment schedule), and the creditor agrees to hold off on exercising its remedies as long as you comply.

Benefits of a consent order:

• You keep the property as long as you meet the terms.
• You avoid the risk of an unfavorable ruling at the hearing.
• The terms are negotiated, not imposed -- you may get better terms than the court would order.
• It demonstrates good faith to the court and the trustee.

Risks of a consent order:

• If you miss a payment deadline, the creditor can act immediately without filing a new motion.
• The automatic relief provision is typically absolute -- no grace period, no second chances.

Read any proposed consent order carefully before signing. Make sure the payment amounts and dates are realistic. Do not agree to terms you cannot meet.

Frequently Asked Questions