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Contested Bankruptcy Motions Attorney

Contested motions are the regular motions made within a bankruptcy case that move it forward — from relief-from-stay and dismissal to conversions, claim objections and lien avoidance. We initiate and defend them before the Bankruptcy Court.

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Contested bankruptcy motions — an illustrated overview

Motions Within a Bankruptcy Case

The disputes that decide the direction of your case

Contested bankruptcy motions are regular motions made within a bankruptcy case that are inherently part of the case and help move the case forward.

Bankruptcy motions do not need to be contested — they can be unopposed — but usually there is the potential, and often the expectation, that they may be contested. Where a matter is agreeable to all parties in a case, it is usually presented to the Bankruptcy Court by stipulation rather than by motion.

Examples of contested bankruptcy motions include motions for relief from the automatic stay, motions to dismiss, motions to convert a case from one chapter of the Bankruptcy Code to another, motions objecting to a proof of claim, motions to retain a professional, motions to sell property of the debtor, motions to amend a confirmed plan, motions to reopen a bankruptcy case to add a creditor, and motions to avoid a judicial lien based on its interfering with the homestead exemption.

Clients meeting with a bankruptcy attorney about a contested motion

Opposing a Summary-Judgment Motion

Bankruptcy in General

The Automatic Stay

Section 01

Contested Motions vs. Adversary Proceedings

Both are methods of resolving disputes in the Bankruptcy Court that are part of a bankruptcy case — but they differ sharply in complexity, method and the effort and time they demand.

Contested Motion

Adversary Proceeding

Case number

Contested MotionNone heard within the main case

Adversary ProceedingSeparate its own case number

Complexity

Contested MotionRoutine & limited

Adversary ProceedingBroad & complex

Speed

Contested MotionFaster fewer documents filed

Adversary ProceedingSlower full pleadings & discovery

Exchange

Contested MotionMotion, opposition, reply

Adversary ProceedingComplaint, answer, trial

Hearing

Contested MotionUsually none limited, one topic if any

Adversary ProceedingA trial much broader issues & evidence

Contested motions are more routine and limited than an adversary proceeding, and are generally decided faster and with fewer documents filed by each of the parties. The sequence is usually as follows: the movant makes the initial motion, the respondent files opposition to the motion (and potentially a cross-motion), and the movant usually has the last turn with a reply to the opposition. After this kind of limited and regular exchange of contested documents between the parties, the Bankruptcy Court usually renders a decision.

In most contested motions an evidentiary hearing is not required. If one is required, it would be a limited evidentiary hearing about one topic — for example, the valuation of real property for a motion for relief from stay, if such an issue is contested and relevant for the court’s decision — as opposed to a trial in an adversary proceeding, which is usually much broader, with more issues contested and more evidence presented.

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Section 02

Motions for Relief from the Automatic Stay

The motion creditors bring most often: a secured creditor asks the Court to lift the automatic stay so it can pursue its rights against its collateral. How hard that is to win depends heavily on the chapter.

Motions made by creditors most often seek relief from the automatic stay in a bankruptcy case. This is often when a secured creditor — like a mortgage holder or a car-loan lender — has ongoing arrears on payments and seeks relief from the stay to pursue its rights in court or against its collateral. To do so, the creditor would need to show that there is no equity in the property and/or that it is not necessary for an effective reorganization.

Motions for relief from the stay are therefore more easily granted in a Chapter 7 case, where there is generally no reorganization effort and where the debtor is usually in a worse place economically. On the other hand, where the debtor is paying post-petition obligations timely in a Chapter 11 or 13 case, it is much harder for the creditor to prevail. To get around the stay in cases where the debtor is trying to reorganize, the movant needs to show that the debtor’s effort is futile and not feasible, and/or that there is a greater societal benefit in giving relief from the stay.

What the Creditor Must Show

Grounds for lifting the stay

There is no equity in the property, and/or it is not necessary for an effective reorganization.
In a Chapter 7, relief is easier to obtain — there is generally no reorganization effort to protect.
In a reorganization case, the movant must show the debtor’s effort is futile and not feasible, and/or a greater societal benefit in relief.

Where the debtor is paying post-petition obligations timely in a Chapter 11 or 13, it is much harder for a creditor to prevail on a motion for relief.

Section 03

Motions to Dismiss

A trustee — or a creditor, or even the debtor — can move to dismiss a case that appears no longer viable, abusive, or filed merely for delay. Understanding who is asking, and why, is critical to keeping a case alive.

Other types of motions are made by a trustee to dismiss a case where the debtor is not cooperating with the trustee’s administering of the case, or where the case otherwise appears not viable in terms of proceeding. Motions to dismiss are usually made by the trustee assigned to the case, but they may also be made by a creditor, or by the debtor itself, where it seems the bankruptcy is either inappropriate or no longer can serve a constructive or legitimate purpose. A trustee or creditor may argue that the case is abusive and filed merely for delay, or that the debtor does not qualify for the chapter of the Bankruptcy Code they filed based on their income. A debtor may move to dismiss when it realizes a case may not be able to achieve its originally intended goals, or when those goals have been achieved and the case is no longer necessary.

A bankruptcy filing offers two main sources of protection. First, the case begins by immediately — but temporarily — protecting the debtor through the automatic stay. Second, the case can potentially end with the debtor being permanently protected, with a discharge order in a Chapter 7 case or with a confirmed plan in a Chapter 11 or 13 case. Many cases are filed on an emergency basis, such as to stop a foreclosure sale, eviction, bank restraint, wage garnishment and/or vehicle or equipment repossession. Under those circumstances, debtors are in need of the immediate protection of the automatic stay. Such cases do not always find that the second source — the more permanent resolution of the debt — works well under these circumstances. Under these scenarios there is pressure to dismiss the case, notwithstanding that the case provided real, temporary protection to the debtor even though it was not completed with a discharge or reorganization. Often the debtor struggles to sustain a case and to extend that temporary protection, and tries to convince the trustee and the Court that the debtor can potentially obtain a more constructive resolution by being provided with more time.

Two Sources of Protection

What a bankruptcy filing is meant to deliver

A motion to dismiss puts both of these at risk — understanding them is central to defending the case.

Immediate but temporary protection through the automatic stay

Permanent protection through a discharge or confirmed plan

Emergency relief from foreclosure, eviction & restraints

Time to pursue a more constructive resolution of the debt

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Section 04

Motions or Applications to Convert a Case

When the goal under the original chapter cannot be accomplished, conversion to another chapter of the Bankruptcy Code may be a viable strategy — sometimes sought by the debtor, sometimes threatened by a trustee or creditor.

There may be circumstances where the goal under the original chapter the debtor filed cannot be successfully accomplished. The case may be at risk of dismissal or have other problems, so conversion to another chapter may be a viable strategy. At other times, conversion to Chapter 7 is a threat by the trustee or a creditor to a debtor seeking to reorganize in Chapter 11 or 13 and wanting to avoid Chapter 7. Depending on the fact pattern, conversion may or may not be opposed or desired, and it may be opposed or desired by different parties. If no dispute is expected, conversion is often obtained with an application rather than by a motion. But where there is possible opposition from the trustee, a creditor, or the debtor itself, conversion needs to be by motion, on notice to parties in interest.

Chapter 13 to Chapter 7

Usually unopposed

Suppose a debtor originally filed a Chapter 13 to pay back debts including both mortgage arrears and credit card debt. During the case, the debtor loses his job and cannot fund the plan payments. Rather than simply have the case dismissed, the debtor could convert to Chapter 7 to at least wipe out personal liability for the credit card debts without making any payments to a trustee — salvaging some of the benefits of the filing. Even though the mortgage arrears cannot be resolved in Chapter 7, the debtor can at least in part improve his debt situation. Conversion from Chapter 13 to 7 is usually unopposed. A further benefit: once a Chapter 7 discharge is obtained, the debtor no longer has liability for the unsecured debts, and should his finances later improve, he could file a new Chapter 13 devoted solely to the mortgage arrears (provided he has not incurred new debt since the converted Chapter 7).

Chapter 11 to Chapter 7

Liquidation & the U.S. Trustee

Conversion from a Chapter 11 to a Chapter 7 usually indicates the debtor is unable to propose a successful plan of reorganization. The Office of the United States Trustee, which monitors Chapter 11 cases, may determine after reviewing monthly operating reports and creditor complaints that the debtor should no longer be in Chapter 11, and will usually file a motion to dismiss and/or convert. If the debtor is still operating, even at a deficit, the case will most likely just be dismissed — and the debtor can continue to operate and negotiate with creditors rather than shuttering the business. But if the debtor has assets to pay creditors, the U.S. Trustee may lean toward converting to Chapter 7. The debtor would then be in liquidation, unable to operate; a Chapter 7 trustee would be appointed to sell assets and pay creditors according to the Bankruptcy Code’s priority scheme, and would review the debtor’s records to see whether pre-petition transfers can be recovered. These motions can be very complicated, and if the U.S. Trustee and the Court feel conversion is in the best interests of creditors, it is highly probable the case will be converted.

Chapter 7 to Chapter 13 or 11

Escaping a “problem fit”

Suppose a debtor filed a Chapter 7 to discharge unsecured debt, but it is discovered the debtor has a problem continuing in Chapter 7 — income above the New York median for the household size; equity in assets exceeding what exemptions or liens protect; or an avoidable transfer that would be problematic if discovered by the Chapter 7 trustee. Where continuing in Chapter 7 is not viable or is detrimental, conversion to Chapter 13 or 11 may save the debtor from pursuit by the Chapter 7 trustee. The trustee may oppose the motion, realizing it is being done to deny the estate an asset with excess equity or an avoidable-transfer action. To convert out of Chapter 7, the debtor must be eligible to be a debtor in the new chapter — so if the debtor lacks the income or resources, or exceeds the Chapter 13 debt limits (unsecured debts less than $526,700.00 and secured debts of $1,580,125.00 for non-contingent, liquidated debts as of April 1, 2025), the debtor will be unable to convert.

Chapter 13 to Chapter 11

When debt exceeds Chapter 13 limits

Suppose a debtor filed a Chapter 13 to reorganize mortgage and personal debt, but it is later discovered the debt exceeds the present Chapter 13 debt limits. Unless the debtor can find some mechanism — such as an objection to a claim — to maneuver back within the acceptable range, he cannot remain in Chapter 13 and the case will be dismissed. However, conversion from Chapter 13 to Chapter 11 may allow the reorganization effort to continue and, if the Chapter 11 plan is confirmed, to make reduced payments to creditors over time.

Convert, or Dismiss and Refile?

A fact-specific strategy

Sometimes, rather than convert a case, the debtor may allow the present case to be dismissed and then refile under the desired chapter — accomplishing its goals across two separate cases rather than one converted case. The calculation is fact-specific. In some cases the debtor would rather keep elements of the original case, such as stipulations, claims and orders; by not filing a new case the debtor only amends its schedules for the new chapter and gets credit for the original filing fee, paying only the differential. In other cases the debtor may want a completely new start — a new automatic stay (especially if the original stay was vacated) and a new, clear docket, particularly if it was under pressure from the trustee or creditors. Deciding how and when to convert or refile can be complex, and our office would deliberate over the subtleties of the strategy with our client.

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Section 05

Motions Objecting to a Proof of Claim

When a creditor’s claim is overstated, unsupported, or wrongly classified, an objection can disallow it, reduce it, or change its treatment — sometimes the very move that keeps a reorganization feasible.

In cases where there are assets or income that can pay creditors, creditors can and should file proofs of claim to support the amount, the treatment (secured, unsecured, or priority debt), and the documentation for their claim. Where the debtor or trustee disputes any element of the asserted claim, they can object to it in an attempt to disallow the claim in its entirety, reduce the amount, or change the classification — such as recasting a secured claim as unsecured. Claims also need to give evidentiary support, such as the signed note for the debt and a detailed computation showing a breakdown of the debt and how the amount was calculated. Where these are not present or can be disputed, the debtor or trustee can potentially dispute the claim or the claim amount.

An objection to a proof of claim can be important for the debtor in a Chapter 13 case where a creditor with a large potential claim may cause the debtor to exceed the Chapter 13 debt limitations — presently unsecured debts of less than $526,700.00 and secured debts of less than $1,580,125.00 (for non-contingent, liquidated debts as of April 1, 2025). If the claims are too high in a Chapter 13 or Chapter 11 case they may be difficult to pay, and expunging or reducing them — or having them get different treatment, for example recasting a secured claim as an unsecured claim — may help the debtor successfully reorganize its debts under a more manageable plan.

Three ways to challenge a proof of claim.

An objection can seek to disallow the claim in its entirety, reduce its amount, or change its classification — and it can challenge the very existence of a claim that lacks a signed note or a detailed, documented computation of how the debt was calculated.

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Section 06

Retaining Professionals & Selling Property

Some of the most consequential steps in a case — hiring professionals to run it, and selling real estate to fund a reorganization — require Bankruptcy Court approval, by application when routine and by contested motion when opposition is possible.

Motions to Retain a Professional

Where the debtor — usually in Chapter 11 — needs accountants, real-estate brokers, auctioneers, or consultants, it must obtain bankruptcy approval for their services.

Motions to Sell Property

Selling or short-selling real property to support a reorganization is a transaction outside the ordinary course of the debtor’s activities and requires the Court’s approval.

Motions to Retain a Professional

Application when routine, motion when contested

In a case — usually in Chapter 11, but potentially in another chapter — where the debtor needs the services of professionals, accountants, real-estate brokers, auctioneers, and/or consultants, it needs to obtain bankruptcy approval for their services. Where the retention is more routine, it is done by application, where there is not the expectation of opposition. However, where the retention is less routine and may elicit questions or objections, it is often done by motion.

Motions to Sell Property of the Debtor

Contract conditioned on Court approval

Where the debtor can sell real estate or other property, it is usually a larger transaction within the case, outside the ordinary course of the debtor’s activities, and it requires court approval. Motions to sell property can be made where the debtor seeks to sell and/or short-sell real property to support its reorganization effort. Before making such a motion, the debtor enters into a contract with the buyer that is conditioned on a motion to the Bankruptcy Court and on court approval. Only after court approval of the contract can the parties finalize the sale with the closing. If the Bankruptcy Court denies approval, the contract may need to be amended to try to win approval, or it may need to be cancelled.

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Section 07

Amending a Plan & Reopening a Case

Reorganizations take years, and life changes. Two motions keep a case whole: amending a confirmed plan to absorb a temporary setback, and reopening a closed case to discharge a creditor that was left off.

Motions to Amend a Confirmed Plan

Weathering a temporary income problem

Often, in a Chapter 13 or Chapter 11 case, the debtor’s economic circumstances change, and a plan that was once viable, confirmed and within the debtor’s ability to pay is — due to changed income or budget — temporarily no longer sustainable under the same terms. These plans require several years to implement, and if the debtor’s finances or circumstances change during that time, the debtor may seek, post-confirmation, to adjust the terms of the already-confirmed plan to prevent the case from being dismissed or the plan from failing over what may have been a temporary income problem. Under an amended plan, missed plan payments can be made up later or by other means, and missed post-petition secured-creditor payments — normally paid outside the plan — can be absorbed into the plan. A motion to amend a confirmed plan is essential to make sure the debtor’s efforts to reorganize have the opportunity to succeed despite temporary economic challenges that some plan adjustments can overcome.

Motions to Reopen a Case to Add a Creditor

Discharging a debt left off the schedules

Sometimes a debtor discovers that a creditor was not listed in a bankruptcy case and needs to add it after the case is over and closed, in order to obtain a discharge of the discovered debt. Where the debt existed at the time of the filing and there was no bad faith in not listing it, the debtor may move to reopen the closed case to add the creditor. Most of the time there is no objection, and the debtor adds the creditor in the following order: first, the debtor makes the motion and obtains the order to reopen the case; second, the debtor adds the creditor by application and gives notice to the added creditor of any rights to object to the dischargeability of their debt or to the addition of their debt to the case; and third, after a period designated by the court, the debtor moves to close the case.

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Section 08

Motions to Avoid a Judicial Lien

A discharge frees you from personal liability — but a creditor’s judgment can still sit as a lien on your home, accruing interest, until you sell. The homestead exemption offers a way to erase it.

Many times, by the time a debtor has filed a bankruptcy petition, he or she has been the subject of one or more lawsuits that may have gone to judgment. If the debtor owns real property and the creditor has obtained a judgment, and the creditor files that judgment in the county where the debtor owns the property, the judgment becomes a secured lien against the premises. Filing a bankruptcy petition will free the debtor from any personal liability for the judgment. However, if nothing further is done, the judgment remains as a lien against the premises and will continue to accrue interest at the rate of 9% per annum. When the debtor later goes to sell, the judgment lien will still remain — and unless it is eradicated, or the debtor negotiates to pay the creditor from the sale proceeds, it will have to be satisfied at closing to transfer title to the new purchaser.

The homestead exemption allows a motion to avoid a judicial lien where the debtor owns and lives at the residence subject to the lien, and the equity in the home is less than the homestead exemption of $204,825.00 per debtor. When the property subject to the judgment lien is the debtor’s principal residence, the Bankruptcy Code provides an opportunity to avoid all or some of the judgment lien as impairing the debtor’s homestead exemption. If the debtor is successful, not only will the debt to that creditor be discharged, but its judgment lien will no longer register as a lien of record against the debtor’s residence.

When a judicial lien can be avoided.

The motion is available where the debtor owns and lives at the residence subject to the lien, and the equity in the home is less than the homestead exemption of $204,825.00 per debtor — erasing the lien of record, not just the personal liability.

Section 09

Why Retain Our Office to Initiate or Defend a Contested Motion

When motions must be filed, served and heard, familiarity with the court, the judges, and the arguments that work best is what turns a contested motion in your favor.

When motions need to be filed, served and heard, there is often an opportunity to discuss them first and reach a compromise resolution. However, when matters become contested, it is good to be familiar with the arguments that may work best before a particular judge — whether they are legal arguments that would require a memorandum of law, or whether the dispute is totally factual and would necessitate affidavits and documentary proof to prevail. Sometimes an evidentiary hearing is necessitated if the matter cannot otherwise be resolved.

Our office is familiar with the Bankruptcy Courts, judges, law and procedure. We can maximize your chances of success in a contested motion situation — whether you are the party bringing the motion or the party opposing it — from our office in Melville, Long Island.

Law Offices of Ronald D. Weiss, P.C. — Melville, Long Island

Defend against relief from stay & dismissalKeep the automatic stay and your case in place when a creditor or trustee moves against it.

Convert, amend & reopen strategicallyMove a case into the right chapter, adjust a confirmed plan, or reopen to add a creditor.

Object to claims & avoid judicial liensReduce or expunge overstated claims and erase judgment liens that impair your homestead.

Familiar with the courts & judgesRegular practice before the Bankruptcy Courts, with knowledge of the law and procedure.

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Long Island & NYCContested Bankruptcy Motions Attorney

The disputes that decide the direction of your case

Contested Motions vs. Adversary Proceedings

Motions for Relief from the Automatic Stay

Grounds for lifting the stay

Motions to Dismiss

What a bankruptcy filing is meant to deliver

Solutions built around your family

Motions or Applications to Convert a Case

Chapter 13 to Chapter 7

Chapter 11 to Chapter 7

Chapter 7 to Chapter 13 or 11

Chapter 13 to Chapter 11

Convert, or Dismiss and Refile?

Motions Objecting to a Proof of Claim

A fresh start for the whole family

Retaining Professionals & Selling Property

Motions to Retain a Professional

Motions to Sell Property

Motions to Retain a Professional

Motions to Sell Property of the Debtor

Amending a Plan & Reopening a Case

Motions to Amend a Confirmed Plan

Motions to Reopen a Case to Add a Creditor

Protecting the people you love

Motions to Avoid a Judicial Lien

Why Retain Our Office to Initiate or Defend a Contested Motion

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Long Island & NYC
Contested Bankruptcy Motions Attorney