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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26143
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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I am in chapter 7 in orange county california My hearing date

Resolved Question:

I am in chapter 7 in orange county california
My hearing date is in 2 weeks
My property was in foreclosure
Lender's atty moved to be released from the stay
I emailed the atty to see if they could delay the hearing as I would be out of town
They told me fine and to call the court
Court said movant had to change the date
Atty told me they could not change the date then emailed me and said the propert was no longer in foreclosure.
14 day notice passed to server with my response
They now say that :what they told me before was not true"
What should I do?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 1 year ago.

cfortunato :

Hi - my name is XXXXX XXXXX I'm a Bankruptcy attorney here to assist you.

cfortunato :

In most cases, it is not necessary for the debtor to show up for a Motion for Relief from the Automatic Stay.

cfortunato :

This is because the motion will be granted if the mortgage in default - whether or not the debtor shows up for the motion.

cfortunato :

Is this what you wanted to know?

Customer:

No

Customer:

Since they told me that it is not in foreclosure do I need to do anything? How will the court know they said that. What i they said that so I would not respond?

Customer:

remmeber I am out of town for the hearing date

Expert:  cfortunato replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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Expert:  cfortunato replied 1 year ago.
Thank you for your response.
The house is not currently in foreclosure, because your Bankruptcy "stayed" the foreclosure process. The Bankruptcy court will know that the house is not in foreclosure, so it is not necessary for the mortgage company to disclose this information.
(Additionally, whether or not the house is in foreclosure will not affect the motion.)
Customer: replied 1 year ago.
Relist: Answer quality.
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for your question, and I'll try to add to what has already been posted.

First, if you're going to be out of town or unavailable for the hearing on the lender's motion for relief from the automatic stay, you can file a motion to continue the hearing - - as the debtor. You don't have to be the movant in order to request that the hearing be moved. The court clerk's office is likely referring to the fact that the movant must be the one to re-notice the case for hearing, send out the notice to the people listed on the mailing matrix, etc. The court would order the movant to re-notice the motion for relief from stay IF your motion to continue the hearing were granted (which is likely).

As for the foreclosure itself, the automatic stay under Section 362 of the bankruptcy code stopped the foreclosure that was begun before you filed bankruptcy. The filing of the bankruptcy did stop that foreclosure because the notice dates, publication of notices, sale dates, etc. are all affected by the bankruptcy.

Thus, your property is not "in foreclosure" because of the automatic stay, but the lender's motion to lift the stay (or motion for relief from the automatic stay) is its request to the bankruptcy court for permission to proceed with the foreclosure while you're in bankruptcy (that's what "lifting the stay means"). Thus, IF the court grants the motion to lift the automatic stay, then, the lender can then re-start the foreclosure process against you - - even while you're in bankruptcy.

I hope this answers your questions, but if you need something else, please REPLY and I'll be glad to respond. Thanks.
Customer: replied 1 year ago.


That was great. Thank you.


 


First question - Does the foreclosure process start all the way over. Does the 20-day notice of sale start again? Or does the delayed sale date just get rescheduled? What is the timeline to an actual transfer of title.


 


Second - After the discharge - I have delusions that a discharge of many of my debts will make me a more attractive candidate to encourage the bank to restructure the loans and allow me to keep my property. Does that sound likely or is it more likely that the bank will move as fast as they can to get my property sold?

Expert:  Roger replied 1 year ago.
Hi -

1. Because of the notice requirements, publication dates, etc. the process usually starts all over (or at least that's the only way I've ever seen it handled).

2. The bank is likely to proceed with foreclosure as soon as it can. However, if no one buys the property at the foreclosure sale, it would be possible to approach the bank and try to work out a deal to re-take the property and reinstate the mortgage. This would be up to the lender to approve, but it's possible.
Customer: replied 1 year ago.


Thank you.


 


Are you familiar with the timeline for the foreclosure or can you recommend the type of attorney I could ask?

Expert:  Roger replied 1 year ago.
The best outline online (in my opinion) is here: http://www.foreclosure.com/statelaw_CA.html
Customer: replied 1 year ago.

What type of attorneys deal with foreclosures


 

Expert:  Roger replied 1 year ago.
Hi -

Usually, most bankruptcy or debt relief attorneys desk with foreclosures on behalf of the borrower. Also, real estate attorneys will handle foreclosures (mostly for creditors) as well.
Expert:  Roger replied 1 year ago.
Please let me know if you have any additional questions. Also, please remember to positively rate our conversation so I may receive credit for my time. Thanks.
Customer: replied 1 year ago.

If the property does foreclose how will that affect my qualifying under the means test if my income exceeds the threashold

Expert:  Roger replied 1 year ago.

The foreclosure would rid you of the debt and deficiency (since Ca is an anti-deficiency state), so it could reduce your debt to income ratio. What affect it would have depends on your overall income and debts, which I don't know, nor could I do a calculation without a lot of information.

That said, you can do a means test online here: http://www.legalconsumer.com/bankruptcy/means-test/ and try it with and without the debt to see what it tells you.

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26143
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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