I don't really know enough about your case facts to tell you what you could say to oppose a lift of the automatic stay.
I also don't know which bankruptcy court you are in, but if it's the Central District, then you can start with this form.
Note: If your position is that the property is not part of the bankruptcy estate, because it was transferred to someone else, then be aware, that if a trust deed was recorded with the county, prior to the date when your parents conveyed a deed to a new owner, and the loan secured by the trust deed was not paid off first, then that trust deed has priority and your parents transfer would have no legal effect on the lender's right to foreclose the loan. Which means that you would lose your motion. Though, you may be able to get the court to postpone the sale for a bit longer.
Hope this helps.
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I am sorry if what I wrote was confusing, I'm not sure how to explain everything. When I was writing about the transfer I was referring to the original beneficiary (Pacific bank Mortgage dba countrywide) supposedly sold the paper to another entity. I wasn't notified of it I just assumed it because we were contacted by Home Eq Servicing at the time who said they serviced it now and would not inform me who had the deed even though I asked many times. Just in the last few months during foreclosure on the property I was informed again of a transfer to another entity by mail. Also using Home Eq Servicing. They informed me that this did not effect the foreclosure at all. Shortly after we filed bankruptcy and they filed the motion for the lift of aut stay (in the paperwork they included an assignment of deed from pacific Bank to the new entity done 10 days b-4 filing the motion) It seems they are playing catch-up with paperwork that is supposed to already be done. What about the original change b-4. Is something fishy? How would I find out? and if it is how would I word it in the form as grounds for dismissal or other?
Is it possible that they have provided the court with fraudulent paperwork?
I have a paper from feb of 09 stating change of trustee and the entity involved in changing there trustee is not Pacific Bank Mortgage anymore. So how can Pacific Bank mortgage be on the paperwork from 11/20/09 for their assignment of deed to the new entity?
Under current California and federal law a trust deed beneficiary (i.e., the original lender or anyone to whom that lender has subsequently assigned/sold the promissory note by which the borrower promises to pay) can instruct the trustee to commence foreclosure of the loan when it is in default. Moving the loan/note from one servicer to another does not limit the beneficiary's right to foreclose, as long as that beneficiary can show that it has purchased the note.
You could object to the sale on grounds that the purported beneficiary does not own the note, and therefore has no right to instruct the trustee to foreclose. However, this is a pretty sophisticated argument, and you would need to show case law to back up your position. This is not the sort of thing that a bankruptcy judge will be interested in from a pro se litigant. Moreover, you cannot represent your parents in court. They can represent themselves, or hire a lawyer, but you would be engaged in the unauthorized and illegal practice of law to do that.
You're going to need a lawyer, there's no way around it.
For a bankruptcy attorney referral, see: http://www.abanet.org/legalservices/lris/directory/main.cfm?id=CA and www.martindale.com.
Is there ay other grounds of opposing this motion that you know of?
Do you know any cases I can refer to that have been succesful in this same situation?
Like I said, I don't know near enough about your facts, to determine what, if any grounds might fit your circumstances. As for case law, frankly, the only case that has considered this issue, though not binding precedent for the bankruptcy court, went the other way.
Which is why this is so difficult. Moreover, even if you put forth a fabulous brief, the court will almost certainly require oral argument. Your parents are almost certainly not in the position to deal with this in person -- and you will be forbidden from crossing the bar to speak on their behalf.
I understand that you don't want to read this, but you need a lawyer if you want any shot of winning this thing.
I do want to read this, and I appreciate all of your help. I also know that I cannot argue for them in court. I wouldn't dare try. My father most likely isn't the best canidate for this either. I am not ready to give up on fighting I just need to know which direction to take. Hiring a lawyer sounds fabulous, I have visited a few and they are all too expensive, and also seemingly very biased as well. If I could find an unbiased lawyer that was not out of our budget I would jump on that. The sight you sent me I believe is the same sight I used previous. A referral to the right lawyer would be priceless.
Thank You for everything
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