I. What is a motion?

A motion is a written or an oral request submitted to a court or a judge to obtain a ruling or an order that is favorable to the consumer. The consumer who has filed for the motion is known as the moving party. The bankruptcy court system requires that the written notice be served or be delivered, to the other party, in advanced. Written motions contain the specific reasons or grounds for the request and also a brief recitation of the nature or facts of the case.

What are the types of Motions in Bankruptcy Cases?

1.) Ex Parte – It is a motion filed by the consumer who has the absolute right to do so or is clearly entitled to the said action. It is a request for relief and shortened (an order shortening time) or no notice to the opposing party. For example: The consumer wants to file a motion to modify his/her repayment plan but can only give the creditors a 20 day notice (generally a noticed motion requires 25 days).

2.) Noticed Motions – are the most common motions of which there are two types:

• The date and time of the hearing.
• Notice that the other side must set the schedule if he/she wants to contest the consumer’s motion – the 25 day response period is applicable to this notice. If the other party files a written opposition, it should do so at least 5 days before the set date for the hearing. At the hearing the judge would of course hear both sides of the argument. The judge will do either of the two things:

1.) Announce a decision

2.) Take the matter under submission or think about it for a while. Afterwards he/she would file for a written memorandum explaining how he/she arrived at that decision. The winning party is going to be asked to prepare a formal order. If in case the other side fails to reply to the motion, the consumer may file a Request for Default, it means that, because there is no opposition to the request, by default, the court should grant the consumer his/her motion. If the consumer was not able to file this request, on the other hand, then the court would not do anything too, things will just sit there and expire.

If the consumer is going to be the one to schedule the hearing, the following papers need to be completed:

• Form 2A – it is an official bankruptcy court form, also known as the notice of motion. The consumer has to reschedule the hearing if he/she cannot give the other party 25 days to respond to the notice.
• The Motion- It is a paper that the consumer submits to the court, or the motion itself, which states what the consumer wants the court to do and for what reasons.
• A Declaration – It is another paper signed under the penalty of perjury, a first-hand account of what transpired between the consumer and the creditors or trustee.
• Memorandum of points and authorities – it is a paper that briefly states the applicable laws and the reasons behind the granting or allowing of a motion.
• A Proof of Service – someone, other than the consumer should mail the notice to the concerned parties, and a proof of service stands as the evidence to that act.

Other Resources:

Creditor motions in bankruptcy cases
Creditor objections in bankruptcy
How to respond to creditor objections