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A.J.
A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4300
Experience:  Experienced consumer bankruptcy attorney.
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Can a Creditor have their attorney do a motion to lift the

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Can a Creditor have their attorney do a motion to lift the automatic stay when they were on Schedule F and the attorney filed the motion after the last day to object to a discharge? they filed it a week after last day to object to a discharge and they never objected and they were already on Schedule F. However, they were sent the Notice of the Amended filings 1009(a) and the schedules that affected them by certified return receipt mail. I am now seeing that many cases are being denied because of FRBP 7004 AND 9014 and should have been sent first-class postage. does this only pertain to motions or to Notice for Amended filings as well. If so, I'm screwed

SavyLawyer :

Hello, and thank you for contacting Just Answer.

SavyLawyer :

Just to clarify, are we talking about a chapter 7 bankruptcy?

Customer:

yes

SavyLawyer :

Ok, and a discharge order was already received and this creditor received notice of the bankruptcy proceeding (ie they were listed on the creditor matrix)?

SavyLawyer :

(also, just to clarify, certified mail is generally considered first class mail, and would give you proof of mailing, so a creditor arguing they did not receive notice would be tough for them to prove if you have proof of receipt).

SavyLawyer :

Generally, sending notices certified return receipt is in addition to the document being sent first class (you still had to pay the first class postage), and in any event should not disqualify the mailings under the code. Further, a creditor's attorney would need the court's permission to file a motion objecting to discharge and lifting the automatic stay after the deadline for objections, which are generally not granted to the creditor without good cause. Failing to receive notice of the petition or an amended filing could theoretically be cause for an exception, but if you have proof of the mailing in the form of a return receipt, that is generally sufficient to prove that notice of an amended filing was given.

SavyLawyer :

I do not believe that any class of mail through the United States Postal Service can even be sent certified, so if it was sent certified, it was at least first class postage paid.

SavyLawyer :

The rule arguably pertains to all rules, but certified mail should be in compliance with the rule.

SavyLawyer :

As with all complicated bankruptcy issues, it would be a good idea to have an experienced bankruptcy attorney review and respond to this creditor attorneys motion, but based on the information provided, it appears as if the notice rules and means of service were complied with.

SavyLawyer :

For a referral to a bankruptcy attorney should you choose to consult one, a good starting place is the California State Bar Association at:

SavyLawyer :

http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

SavyLawyer :

I hope this helps, and let me know if you have any further questions or require further information. Otherwise, please remember to RATE my answer AT LEAST 3 out of 5 so that I can receive credit for my work.

Customer:

ok, thanks and another question is about avoiding a mortgage that was never perfected. i have to review notes, but can I as a debtor in possession, because it encumbers my homestead exemption, use 544 to avoid the unperfected mortgage? or do i even have to do that motion if they are on Sch F and did not oppose being on sch F? There is nothing recorded by them for 9 years, and the only thing they have is what I signed with the mortgage company that has since filed bk. the current mtg company doesn't have a Note or an endorsed Note. i saw somewhere but can't find it in my notes, the law that says if it isn't properly recorded then it is unsecured...and it was never recorded and someone (i have their name, time/date i spoke to them and even recorded) told me they shredded the Note because it is "dangerous to just have a Note laying around." Therefore, they only have the signed Note from the bk mtg company. Also, on my credit report, next to them it states..."date opened nov 2004, first reported feb 2005, date of status april 2012 TYPE: MORTGAGE TERMS 40 YEARS mONTHLY PAYMENT: NOT REPORTED CREDIT LIMIT OR ORIGINAL AMOUNT $215, 350. High balance: not reported (and here's the real question, where the credit report states "Recent balance: they put "$0 as of May 2012. Then the next column says Responsibility: Individual; Status: petition for chapter 7 bk. This account is scheduled to continue on record until April 2019" then it says, "Creditor's statement and they put "Loan Modified" and then Account history "filed Chapter 7 Bankruptcy on April 20, 2012." So I am wondering, since they put $0 balance, is that because they were on Schedule F and don't dispute it and therefore I don't have to motion to avoid that mortgage debt? (it is a diff property than the one referred to originally)

SavyLawyer :

I am sorry but while I am happy to review this question, it is a completely new question and should be asked separately as a new question and not as part of the original questions. Please ask this question as a new question, and please also remember to RATE my previous answer so that I can receive credit for my work.

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