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How long is the automatic stay on the second filing of a Ch 13?

San Francisco, CA |

The previous filing was within the last 12 months. Does the lender have to petition to remove the stay?

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Attorney answers 4

Posted

If a second chapter 13 filing within 12 months then the automatic stay will be in place for 30 days only. Still, a debtor with this sort of situation may choose to motion the court to have the stay extended beyond 30 days, which motion must be set for hearing and recieve approval from the court before an extended stay is imposed.

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Posted

You are only granted 30 days from the petition date. In order to extend it, you need to file a motion requesting that it be extended and provide the reason why it is necessary for the success of your present Chapter 13 case.

If you are interested in a more detailed legal analysis of your situation and reside in Illinois, contact 360 Legal toll-free at 855-360-4608 or at www.threesixtylegal.com. I am only licensed in the state of Illinois. This is only my general observation about the law and my experiences as a practicing attorney. This is not legal advice and should not be construed as legal advice. This does not create an attorney client relationship. If you wish to obtain legal advice or create an attorney-client relationship, then you should directly contact a lawyer licensed in your state who you believe possesses the knowledge and experience to assist you with your case.

Posted

The 30-day stay applies as prior answers stated. But that 30-day limit applies to cased filed within one year after the dismissal of the prior case, not one year after the prior case was filed.

This reply does not constitute legal advice or establish an attorney-client relationship.

Posted

Also it is important to know that you have to get the order signed before the expiration of that 30 day period. In some Jurisdictions such as the Northern District of California, you can do that with what we call a "scream or die" motion which means you may not have to have hearing unless their is an objection to your motion. As well, more to the point of your question, a creditor does not have to get an order to proceed against your assets without a stay in place, but many of them do come into Court and get a "comfort order".

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