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JP
JP, Attorney
Category: Bankruptcy Law
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Experience:  Represented creditors and individuals in bankruptcy and consumer matters.
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While under the protection of the automatic stay (Ch 13), a

Customer Question

While under the protection of the automatic stay (Ch 13), a creditor foreclosed on our property, and a trustee sale was held. Our case was subsequently dismissed (due to the doc preparer that we hired). We filed an emergency motion to reinstate the same day, and when we received a notice of hearing that was over a week away, we filed a new bankruptcy proceeding that same day in order to maintain the protection of the stay. The old case is still dismissed, and the new case is now pending. I have filed an adversary action for violation of stay against this creditor, as he is continuing to violate the stay in my "new" case today. Did I lose any rights to claim damages or injury because this violation ORIGINATED in the first bankruptcy? Will the judge toss my claims just because the "old" case has been dismissed? There was a clear stay violation while my case was in good standing...
Submitted: 6 years ago.
Category: Bankruptcy Law
Expert:  JP replied 6 years ago.

The judge is not going to throw your adversary case out simply because your prior bankruptcy case was dismissed. You are correct, if the mortgage company foreclosed on your home after the bankruptcy case was filed, then it is a clear violation of the stay that must be pursued.

 

Your bankruptcy cases and your adversary cases are treated as separate cases and should be handled as such, although the adversary stems from activity that happend during the pendancy of your prior case. Your case is not "too" complex, but it will take time, patience and persistence to get you back on track.

 

I would suggest, reviewed the local bankruptcy rules in your area to see if there are any special procedures for the handling of adversary cases in your area that you need to follow. You should also check to see if the Judge assigned to your case has any special procedures for adversary cases, because failure to follow the Courts procedures could result in the dismissal of your adversary proceeding.

 

If you can't find an attorney to assist with your bankruptcy case filing, you may be able to find a bankruptcy or real estate attorney to assist with the adversary case against the mortgage company. Remember, the bankruptcy case and the adversary proceeding are treated separately and you can have an attorney represent you in one or both of the proceedings. Furthermore, a real estate attorney may allow you to retain his services on a contingency bases for the adversary proceeding. Just remember that the lawsuit and any amount you may recover needs to be properly claimed as exempt in your bankruptcy case.

 

I hope you found this informtion to be helpful.

 

Best Regards.

 

 

Expert:  JP replied 6 years ago.

Hello,

 

I appreciate your question and hope you found my answer to be helpful, however it appears that you may have forgotten to click "accept" after reviewing my post.

 

Please click "accept" for my answer so that I may receive credit and compensation for my efforts. Thanks again.

 

Best Regards.

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