Can I file a motion to compel as an adversary Proceeding if I didn't put it on my Schedule B for BK 7? and would it behoove me to do a motion to dismiss first or a motion to compel? I have evidence to have it dismissed, but the burden of proof is on them, so I'm a little confused which one to do first
State/Country relating to question: California
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I'm trying to stick with one attny and when I click on "ask me another question" it keeps spitting my questions to any and all Attnys. How do I stay on one thread as was requested. This is drivin me nuts. I'm better with the books and finding answers. I'm book smart/computer stupid...can't live with them can't live without them
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I found an expert I want to stick with but when I post where it says, "ask me another question" it goes to all Attnys and not the same one. I'm super frustrated should I just call justanswer?
Damn I replied to you and where's my frickin reply? I clicked "reply to expert
If you want a specific attorney to answer your question, then put"FOR XXXX ONLY" with the XXX being the name of the attorney you want to answer your question. That way other experts will see it and stay away.Good luck!HCLegal
I have filed over a thousand bankruptcy cases.
Can I file a motion to compel as an adversary Proceeding if I didn't put it on my Schedule B for BK 7?
I believe you could just file an adversary proceeding directly... but please understand that this is COMPLEX litigation that few attorneys are truly competent to handle, let alone pro se Debtors. It's okay that you didn't include the adversary on Schedule B, as the adversary would be litigated through the bankruptcy. If you do file an adversary complaint, you need to realize that it will significantly delay Debtor's discharge (possibly by a year or more).
And would it behoove me to do a motion to dismiss first or a motion to compel?
I don't completely understand what you're trying to dismiss and/or compel. My understanding is that you might want to compel the Trustee to file an adversary complaint against the lender. I think you could bring this directly if you really wanted to, and you would either name the Trustee in the suit (the Trustee would join the suit regardless of whether or not you name the Trustee). I don't understand what you're trying to dismiss... the lender's claim? The appropriate response to this would be an Objection to Claim (provided one was filed). The Bankruptcy Estate's claim? This would likely need to be brought as an adversary proceeding, and I'm honestly not sure how a Debtor could successfully make such an argument (essentially removing property of the Estate from the Estate). Regardless of the validity of the lender's lien, the real property is still property of the Estate... that's ultimately the real hurdle.
The servicer that is trying to foreclose has done a fraudulant wrongful foreclosure pursuant to CA foreclosure laws. Listed wrong beneficiary and has no standing. Wrong party. I have evidence. Also robo people signed, I have evidence, and notary works with the VP. Also a loan mod that was recorded but was not actually ever done (I have proof), their docs are all fraudulent. Originally before filing BK i was going to do TRO/injunction but by the time i educated myself they were going to foreclose and i ran out of time so i filed bk. then educating myself how to do that and complete all sch and statements took a long time with many amendments. now trustee abandoned all and due to be discharged soon. I don't want them to be able to foreclose prior to me showing judge their wrongful acts with merits and evidence. Even though I listed them as unsecured and disputed in Schedules, can they still foreclose once case is discharged? No one submitted a claim in BK or objection to discharge. Also I thought I could avoid their lien since their DOT was recorded within 90 days of me filing (I had told them I was going to file when they asked). Now I see why they asked, prior to that they were foreclosing and had never recorded any beneficial interest. Now they fabricated their doc and filed it with county. I'm so confused. I don't want to lose either one of my 2 houses. I have more money in to them than they are worth. The modification was a scam and was recorded but never came with TILA or reg Z disclosures, are mods required to do so? Also foreclosure is wrong on many levels according to how it should be done according to the law books. I need to dismiss their foreclosure, but if I do, will the Trustee take the house and sell it? and defeat my actions/time? Or should I draft it all and file immed after discharge to keep bk trustees hands off of it? Or, other option is to file Ch 13 right after discharge (needing an attny at that point)
"Even though I listed them as unsecured and disputed in Schedules, can they still foreclose once case is discharged?"
Yes, in fact, that's probably what they're planning to do after your discharge. They likely didn't file a Proof of Claim (or contest your categorization of them as unsecured) so their lien would pass through the bankruptcy. This way, they are far less likely to become involved in expensive, messy bankruptcy litigation that the Trustee might otherwise initiate.
Florida attorney with extensive experience in Chapter 7 and Chapter 13 consumer bankruptcy cases
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