Bankruptcy courts are somewhat unique. The bankruptcy courts utilize the same set of identical forms nationwide. These forms are called the “bankruptcy petition and schedules.” The forms are very user-friendly. Bankruptcy motions are a complete separate story. Read on to learn more about motion practice in the bankruptcy courts.
What is a Bankruptcy Motion?
A “motion” is the legal term for a request. If a debtor, creditor, or other party wants the bankruptcy court to take specific action, a motion needs to be filed.
A motion lays out the specific facts and legal arguments that support the request being made by the “moving party.” Bankruptcy motions can be simple and brief, or they can be unusual and lengthy.
The bedrock foundation of our judicial system is that the a court cannot take action without notice and an opportunity to be heard. Motion paperwork takes care of both aspects by providing notice to all parties about the legal request and information about the hearing itself.
Bankruptcy courts have enormous power to order relief. Because of this power, the courts require parties filing motions to strenuously follow procedural and legal rules. Failing to file to right paperwork will result in the denial of a motion.
Typical Bankruptcy Motions
Common motions filed in bankruptcy cases include:
- Motion for Relief from Automatic Stay
- Motion to Compel Abandonment of Property
- Motion to Confirm Chapter 13 Plan
- Motion to Confirm Amended Chapter 13 Plan
- Motion for Sanctions for Violation of the Automatic Stay
- Motion for Sanctions for Violation of the Discharge Injunction
- Motion to Convert to Chapter 7
- Motion to Convert to Chapter 13
- Motion to Value Collateral
- Motion for Substitution of Attorney
Bankruptcy Motion Forms
Great. You have to file a motion in a bankruptcy case. Why can’t you find the forms on the bankruptcy court’s website?
Here is the bad news: at least here in the Eastern District of California, there are no standardized “form” motions. As such, if you need to file a motion in the bankruptcy court, you are on your own.
Each legal request is unique. This is why the bankruptcy court does not publish standardized form motions. It would be very difficult to craft forms that would provide adequate legal and factual support for every possible situation. To give you an idea of the complexity involved in drafting a motion, a typical motion consists of:
- Notice of Court Hearing
- Motion
- Declaration(s)
- Exhibit(s)
- Proof of Service
Each one of these documents has specific requirements. Failing to prepare each document correctly can be fatal to the motion. Careful planning, research, timing, and drafting is required to succeed in the bankruptcy court.
Bankruptcy litigation is very complex. I strongly recommend that you retain an attorney if you need to file a motion in bankruptcy. Please call my office at (916) 333-2222 to schedule a consultation.
