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socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 37504
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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I need to file a Motion to Alter or Amend regarding a recent

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I need to file a Motion to Alter or Amend regarding a recent BK Court (Los Angeles/Central District) "Order Granting Motion For Relief From The Automatic Stay," Under 11 U.S.C. $362 (Real Property). I have a new attorney..................please advise quickest way as I only have till Tuesday, 1/5/10. Thank you so much! FCS
Submitted: 6 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 6 years ago.

I'm a little confused. What exactly are you trying to accomplish with this motion?



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Customer: replied 6 years ago.

Thank you for your email and question.


After I filed Chapter 13 BK on 1/2/09, a lender foreclosed on my residential home in an unlawful and void sale (Automatic Stay Violation). This Violation is still in place and I am suing for any possible damages/losses/fees as per 362 (h), via a current Adversary Proceeding.


However, the "buyer" at this sale......................has just received an Automatic Stay Removal/Annulment.......................WOW!!


As per my reading of current law and research this buyer should have no legal or valid transfer of property title and should have NO subsequent value or ability to bring Motions/proceedings.


Further complications, is that I was not served properly or even aware of or in attendance at the Hearing for the Removal of Automatic Stay. My Chapter 13 attorney has had a serious health issue since August "09 and I have just been making Plan payments. The actual Confirmation has been delayed all along.


My goal is to file a Notice of Appeal and/or a Notice to Alter or Amend. The last date to file is actually, Tuesday, 1/5/10.


I am confident my current Appeal's attorney knows what to file and I am meeting with him (2nd meeting) on Monday to file required documents.


I wanted to get another expert's opinion as to best possible direction and course of action and documents needed.


Thank you again,

Frederick Struiksma

Expert:  socrateaser replied 6 years ago.

I assume that you are paying according to the plan and that there was no legal justification for the foreclosure.


If so, then the ordinary outcome of this is that the foreclosure sale is void ab initio (from the beginning), and the beneficiary and trustee would be in contempt. You would be entitled to actual and punitive damages including damages for emotional distress.


I'm frankly confounded by the court giving the buyer what you seems to imply as a free ticket to keep the property, because there's no legal precedent or argument to be made for that outcome.


I would move to set aside the buyer's order under Fed. R. Civ. Proc. 60 on grounds that the court's order is simply without precedent and can only be the result of a misunderstanding of the facts, because you were not provided effective notice of the hearing, and simultaneously move for contempt against the trust deed beneficiary.



socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 37504
Experience: Attorney and Real Estate Broker -- Retired (mostly)
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