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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
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Experience:  B.A.; M.B.A.; J.D.
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The lender started judicial foreclosure for a motel property in New Mexico. The borrower

Customer Question

The lender started judicial foreclosure for a motel property in New Mexico. The borrower filed bankruptcy (Ch 11) to delay foreclosure. The lender and borrower reached an agreement and an Order to Sell property outside of normal course of business was issued by the Bankruptcy court to sell the property to the lender. The borrower gave a deed and possession of the property to the lender pursuant to the order. The agreement also called for an unsecured claim against the borrower for $700,000.
The lender operated the motel for about 10 years. The borrower’s bankruptcy was converted to Ch 7 and subsequently dismissed involuntarily about 4 years later in 2001. The lender did not have knowledge of this dismissal, although his attorney was sent a notice by the bankruptcy court.
The borrower is now claiming that the deed and the agreement reached during his bankruptcy are now void, since his bankruptcy was dismissed. He is now claiming title to the property. In a court proceeding (Motion to
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  Phillips Esq. replied 3 years ago.

Thank you for giving me the opportunity to assist you. I encourage you to ask me for clarification, if you are not clear with my Answer.

 

What is your specific question?

 

 

Customer: replied 3 years ago.

In a court proceeding (Motion to Dismiss the foreclosure case is filed by the borrower) Borrower put a bankruptcy expert, who testified that indeed that is the case.

 

Since the lender had the possession of the property, and he did not have any knowledge of the bankruptcy dismissal, he did not pursue the foreclosure case in the state court, assuming, that there was no need. No action was taken by either party from 10/1996 to 12/2008. Motion to dismiss was filed in 12/2008 on the grounds of no activity.

 

The lender, of course, is surprised.

 

The lender wants to know if the agreement reached in Bankruptcy court, either fully or partially performed, can be preserved.

 

Are there any conditions or requirements for that?

What defenses lender has to preserve his agreement and deed to the motel.

Expert:  Phillips Esq. replied 3 years ago.

Thank you for the additional information.

 

Your question is very interesting and I would need more time to research it. However, if you need a response right away, I can opt out and see if another Expert has a quick answer for you.

 

Let me know how you want to proceed.

Customer: replied 3 years ago.

 

Please proceed and take your time.

I need a good amount of help on this issue. I am the lender.

 

The motion to dismiss was heard on 11/6/2010. I testified against dismissal. It is taken under submission

Customer: replied 3 years ago.

 

Please proceed and take your time.

I need a good amount of help on this issue. I am the lender.

 

The motion to dismiss was heard on 11/6/2010. I testified against dismissal. It is taken under submission

 

I meant 11/ 5 /10 (yesterday)

Expert:  Phillips Esq. replied 3 years ago.

 

Ok. Thanks.

 

Your Post:

 

The lender started judicial foreclosure for a motel property in New Mexico. The borrower filed bankruptcy (Ch 11) to delay foreclosure. The lender and borrower reached an agreement and an Order to Sell property outside of normal course of business was issued by the Bankruptcy court to sell the property to the lender. The borrower gave a deed and possession of the property to the lender pursuant to the order. The agreement also called for an unsecured claim against the borrower for $700,000. The lender operated the motel for about 10 years. The borrower's bankruptcy was converted to Ch 7 and subsequently dismissed involuntarily about 4 years later in 2001. The lender did not have knowledge of this dismissal, although his attorney was sent a notice by the bankruptcy court. The borrower is now claiming that the deed and the agreement reached during his bankruptcy are now void, since his bankruptcy was dismissed. He is now claiming title to the property

 

Since the lender had the possession of the property, and he did not have any knowledge of the bankruptcy dismissal, he did not pursue the foreclosure case in the state court, assuming, that there was no need. No action was taken by either party from 10/1996 to 12/2008. Motion to dismiss was filed in 12/2008 on the grounds of no activity.

 

The lender, of course, is surprised.

 

The lender wants to know if the agreement reached in Bankruptcy court, either fully or partially performed, can be preserved.

 

Response: Generally, a dismissal of the bankruptcy case places the debtor and the creditor back in the situation they were in before the case commenced. Unless the Court orders otherwise, a dismissal of the bankruptcy case vacates most (but not all) bankruptcy orders and returns the parties as much as possible to the position that they were in before the filing of the bankruptcy petition. Where the deed has already been transferred to you four years before the involuntary dismissal of the case, the transfer cannot be undone. Just as if the trustee appointed in the case had sold the property and distributed the proceeds to the debtor's creditors, the debtor cannot ask the trustee to undo the sale. See 11 U.S.C. Section 349(b). Also see In re Witte, 279 B.R. 585 (Bankr. E.D. Cal. 2002), Court held that where a debtor's house had been sold pursuant to a Court Order before the dismissal, proceeds held by the bankruptcy trustee were not plan proceeds that had to be returned to the debtor but instead the proceeds had to be turned over to holders of liens on the house.

 

You should also review the docket of the old bankruptcy case to see what the Dismissal Order says.

 

 

Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 12998
Experience: B.A.; M.B.A.; J.D.
Phillips Esq. and 5 other Bankruptcy Law Specialists are ready to help you
Customer: replied 3 years ago.
How can I keep contact with you?
Expert:  Phillips Esq. replied 3 years ago.

Just make your post: Attention AttorneyPhillips and I will get it.

 

Thank you for the Accept.

 

Goodluck with your case.

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