OKAY, I'll friggin' PAY ya....!!! (MO for Relief)

[anabanana]

I've looked and looked and looked. It's not in the FRBP, not in the local rules. AttyOney kindly suggested it might be in local case law in one of the reporters, but I can't find it, and one of the local attys told me it has to be the local rules ... but it just AIN'T!!!

http://www.flmb.uscourts.gov/LocalRules/htm

So I challenge ANYONE to find me authority ANYWHERE that requires that a Motion for Relief of Stay has to be filed related to a support matter. It's a TRADITION maybe, but there is no code or statute or rule that says that.

Only USC 11, S. 362(b), which says the A-stay "...DOES NOT OPERATE AS A STAY..."

And yep, I asked before. And I got kicked to the curb, so I searched and searched some more. And I tried to just accept it as part of the mysterious ways of the BK world that shall be ever out of reach to the pro se subhumans.

But now Pockmark, Esq. has filed for sanctions against me, and I'm telling you, THERE IS NO RULE THAT SAYS YOU NEED TO FILE FOR RELIEF WHEN THE STAY DOES NOT OPERATE AS A STAY IN A SUPPORT MATTER, so where the hell does he get off???

It's going to cost $150 to even FILE the Mo for Relief, supposing I even did it right. For crying out loud...

(or maybe weeping softly in the corner...)

 

[Ladynred]

You're not doing well here today Eloqid

If there's no requirement in the local rules and we know its not in FRBP, then you should be able to answer Pockmark's Motion citing the bankruptcy laws - it does NOT operate as a stay in support matters. As AttorneyOney stated, there COULD be case law that makes them file for the relief from stay in FL, that would take some research. More than likely, its done as a courtesy. Fight the motion with your own objections based on the FRBP as it sounds like you have. The BK judge knows the laws and will consider your objection against the motion. If there's case law or some other rule that comes into play, that should come out when the court rules on your objection.

I have limited case law resources, but I'll fish around and see if I can find anything applicable.

 

[queenofsand]

If this is a chapter 13 BK, the automatic stay may be in effect because after filing, any income becomes a part of the bankruptcy estate. Only those with the court's permission can receive payments. Some states might have laws on how that estate is distributed.

"The State Court can determine whether the automatic Stay applies. In Re Montana, 185 BR 650, (Bankr S.D. Fla. 1995). "



http://www.floridadivorce.com/index5.html?bankruptcy

 

[Ladynred]

There's also some info here:

http://www.divorcenet.com/fl/fl-art06.html - go down about 1/2 way for exemptions from the automatic stay.

That site also says:
" Practice Tip:
When in doubt if you may proceed with an action in State Court file a Motion for Relief from Stay in Bankruptcy Court."

I also found this:
"We agree with the trial court that In re Montana, 185 B.R. 650 (S.D. Fla. 1995), is applicable to this case. That court held that the automatic stay in bankruptcy did not prevent the sentencing of a debtor for civil contempt after the debtor violated an order of contempt entered prior to the filing of the bankruptcy petition. See id. at 653. See also In re. Cummings, 201 B.R. 586, 589 (S.D. Fla. 1996). The court in Montana cited with approval U.S. Sprint Communications Co. v. Buscher, 89 B.R. 154 (D. Kan. 1988), which explained the rationale behind the policy of permitting contempt orders to be enforced during bankruptcy proceedings:"

Not sure how much bearing it has, but if he was already in contempt before he filed, it might make a difference.

You might also want to read this, especially section II - The Bellwether Decision. http://www.fcsl.edu/LawReview/Vol2Num1/Proctor.htm. The Bellwhether section sounds almost like your problem - motion for contempt for support issues in state court - sanctions then filed against the ex for violating the automatic stay !! The case referred to is In re Glass, 240 B.R. at 782