Will the adversary proceeding, in effect, trump the motion for relief, to determine whether the loan was procured fraudulently and should be rescinded. Or, can the debtor file a complaint in state court with the same causes of action, before the motion for relief can be heard, and cause the relief from stay motion to be held in abeyance until a resolution the adversary action or state court complaint has reached has been tried on the merits?
Your remedy is to oppose the motion for relief from stay in the bankruptcy court, and within the deadline specified in the motion. You should retain experienced bankruptcy counsel to do this and to explain to you why this is the procedural avenue for you to follow.
Bankruptcy requires review of your entire financial situation including all debts, income and assets. I highly recommend that you retain an experienced bankruptcy attorney in your jurisdiction to guide you through the complexities of bankruptcy law and procedure.
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This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.
It sounds like you wish to present a defense to a lender's motion to lift stay, and rather than going to the expense of filing an adversary action (which requires payment of filing fees), it would make more sense to state your defenses to the loan itself in your opposition to the motion.
As a general rule, these types of defenses are referred to as Affirmative Defenses. One of the first things I learned in law school is that some defenses are mandatory and must be raised in opposition to a pleading, or they are forever lost, and others can be raised at anytime.
Since it has been over 30 years since I was in law school, I have forgotten which is which, so I just use everything I have to defend a motion as soon as I see it.
Unless this isn't really important, hire a lawyer who is familiar with bankruptcy litigation. They can cost a lot, but are worth it.
Defend the motion first. If you have a federal claim, you can file a complaint in the federal District Court and have the motion stopped while the case is ongoing IF the case addresses the issues brought up in the Motion. This is a risky approach because the lender may get relief while the case is pending.
You may be able to file an Adversary Proceeding if you are trying to determine the validity of the lien over which the creditor has filed the Motion. Filing the adversary proceeding could delay the Motion for Relief.
The best approach is to defend the motion and seek counsel for any complaints that you may be able to file. You will retain the stay protection while you find out whether you have any claims against the lender.
[This communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.]
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