Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for your question.
If a debtor is at the point of being discharged, that means that all of the debtor has been relieved of his obligation to pay his/her debts. When a debtor gets a discharge, the automatic stay is replaced by a permanent injunction prohibiting creditors from all of those actions with respect to discharged pre petition debts that the automatic stay prohibited. Thus, there's generally no reason to stop a closure of the estate after discharge.
In fact, the case for the debtor is really over at discharge - - the time between discharge and closure is usually to give the trustee time to do a final accounting to the court, and once that is in, the case is closed.
If there are creditors you failed to include, you can file a motion to modify your bankruptcy petition and ask the court to allow you to amend in order to include these creditors, etc. If you did that, the case should not be closed and you would be able to deal with the creditor you missed.
Otherwise, I know of no way to stop the case from being closed after discharge has occurred. HOWEVER, once the case is closed, you can file a motion to re-open the case under Bankruptcy Rule 5010: http://www.law.cornell.edu/rules/frbp/rule_5010
This type of motion is fairly simple, and it can look something like this:
UNITED STATES BANKRUPTCY COURT
_______________ DISTRICT OF _________________
In re: )
JOHN DOE, ) CASE NO. 08-12121-ABC-13
MOTION TO REOPEN BANKRUPTCY CASE
COME NOW the Debtor(s) and pursuant to Bankruptcy Code §350(b) request the Court reopen the above-captioned bankruptcy case, and in support hereof now state:
1. That Debtor(s) need to reopen the above-captioned bankruptcy case because _________________________________________________.
WHEREFORE, Debtor(s) pray the Court reopen the above-captioned bankruptcy case and for all further relief as may be just and proper in the premises.
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing was served, by First Class United States Mail, postage prepaid, this ____day of ________ ,20__, to the following person(s):
U.S. Trustee's Office at address_______________________________
Chapter 7 Trustee at address____________________________
All creditors at the following addresses___________________________
If the debtor is currently in another court facing some type of litigation, the automatic stay would have had to be lifted in order for the creditor to proceed, thus, keeping the bankruptcy alive would not prevent that creditor from proceeding against the debtor.
If you were to file any motion, the trustee must be noticed.
wow thanks for that form, where were you when I needed forms? I found them too late, well, I'm in BAP now, but before i paid an arm and a leg for the "best" attorney, yet, no forms and information i asked for daily, spending hundreds, because i was told I couldn't appeal, and I found out on my own 2 days before last day to appeal. but a form! I'm speechless in awe. Thanks.
Well, i wanted to file a Motion to Determine Secured Debt, (i don't have it in front of me), but i have a Creditor that was on Schedule F, they are a Servicer, but I had asked them for months for an indorsement or proof that they are a Secured Debt. in 9 years, they never recorded their assignment from prior Mortgage co. that refinanced. The prior mtg company filed bk 6 years ago. Current servicer has been part of huge suits and fraud. I have requested numerous times for indorsed Note and Deed of Trust or proof they were assigned the debt, and because it is securitized with Fannie Mae, they now say, and Fannie Mae says, but never during the years prior, they couldnt have the Note anyway. What they told me was that they shredded the Note because it is dangerous to keep a Note floating around, and the Deed of Trust is from non-existant mtg company. so they are an Unsecured debt and I have a HELOC that is recorded and if you add the HELOC and my homestead exemption, its more than current market value of the home. so i wanted to avoid it or determine it unsecured before the case is closed. is that possible? i'm a ch 7, and i did a 554 motion and the Trustee and estate abandoned all back to me. trustee did his report months ago. d/c was 2 months ago, last hearing was Nov 7th. i requested deputy clerk to tell judge not to close case but all i know is it is still open.
I also want to file a Motion to Compel for a different property on a Servicer that totally lied and was granted a colorable claim, but that is the one that is at the BAP. can I still file a Motion to Compel since they are ignoring my QWR's and Demand Letters? I'll be back in about 5 hours, thanks so much
All of the things you're wanting to do likely should have been done BEFORE discharge occurred.
I'm assuming that the creditor that foreclosed filed a motion for relief from the automatic stay and was subsequently granted the right to proceed with the foreclosure. At the hearing of that matter, any issue with the creditor's lien, right to foreclose, etc. should have been brought up at that time. If this didn't occur, or if the judge didn't accept the proof presented, then you could file an appeal (assuming the time is not up) and take it up with the federal appeals court.
Also, it is possible to file a petition for an emergency injunction to stop the foreclosure and also request an accounting from the foreclosing creditor IF there is a question about its rights to the account, ownership of the loan/lien, etc. This action could be filed in state court in the county where the property is located.
Because the stay has been lifted on the issue in bankruptcy, the state courts can handle the matter there. That may be much more easier than trying to keep a discharged bankruptcy open.
I would recommend that you consult a local attorney in your area about filing a petition for an emergency injunction to stop the foreclosure based on the questionable foreclosure by parties you don't think is the proper creditor/foreclosing party and ask the judge to require the creditor to prove it's authority (account for its authority).
Hi kirk, please take your time with the following. i didn't proof read it, and i have to go right now, but will be back in a few hours. thanks for your time. any suggestions are highly appreciated.
Great reccomendation, and I did create an TRO, and I thought I had to have my complete complaint done as well. Instead, as I am appealing, and in the BAP, I did an Emergency Motion to stay order pending appeal finally! I was creating the TRO/OSC and pre. inj. for state court. i got it all done, except, the complaint, because all the elements and a very long trail of fraud. i foolishly relied on my ER Motion to BAP and 2 things failed...no declaration and something I will never judge again that I've seen...forgot to sign it. I did bring it up at the Motion for Relief, but the Judge kept telling me that all they have to do is show an Assignment Deed of Trust, its not up to him to decide at that Motion if it is valid or not. I told him i have an AP to determine validity...basically, he said he didn't have jurisdiction. Because the Appeal was on, and the "Lender" told me then they were not going to foreclose and sent me packets for mod one week and one day again before sale, I didn't think they were going to do the sale. And in fact they denied doing the sale, but the Sub Trustee alleged they were doing the sale for this Servicer. I spoke to this Servicer like I said, and I foolishly believed they were not going to foreclose. they said they never substituted trustee or did a NOD yet, and I have paperwork from them that shows principal and interest being paid monthly until the month before the sale. I guess it was them paying it to the new Creditor/Trust. It appears they don't know I was sent that accounting from Customer Service, because their response finally, after a big threat of legal action/fraud, was an accounting with nothing paid. I also have an accounting that shows the Loan they assigned themselves through the Assignment was paid off and closed two months before they brought the motion for relief. It's really convoluted. I just don't know if I should be only focusing on Appeal, which i must with the Brief due soon, or if I should try to simultaneously file in state court. esp. cuz the investor that bought it just put up a 3 day notice. I need to go after Sub Trustee which was completely invalid and based on fraud, as well as the Appeal, as their Motion contained all wrong and misstated facts. only 30 pages for Brief and so much wrong and can be proven. I am appealing the Order signed granting them auth. to foreclose, not the auto stay, because the judge dismissed their motion he told me at my motion to stay order hearing he granted, and it was there he told me to go to state or fed court and I should have, he gave me plenty of time by stopping a date one month prior, but I was at that point sideswiped by "Servicer" who said they were not going to foreclose.Then my friend saw the sale wasn't being stopped or postponed, so i did the ER Motion for BAP. The auto stay had already terminated as to me, estate was empty, judge didn't know why they did the Motion, but granted as to Trustee only cuz estate was empty r/t No Asset report 2 mos prior. Judge said if they didn't file that Motion my case would have been closed. Even so, he should not have signed their order with all the evidence i presented, which included my disputing their debt multiple times, letters from them stating they were not the creditor and did not know the whereabouts of the note, showing wrong loan amount, late charge and monthly fee (which terms of the loan do not change when loan is transferred), and also showing that the assignor already assigned the loan 4 years prior. I also provided the "real party" that transfered, sold and assigned to this "servicer" and was told that "real party" should have recorded their assignment from previous Lender, and then from them to current one. so broken chain, etc. I'm just havin a doozy on which issues to follow-up for only 30 pages. My DoR is lengthy. I not only opposed their motion, but filed motion to dismiss and motion to strike, yet those were not even heard, just civ min denying...because there was no stay in effect. My LOUD argument is that I don't care about the Stay, I care that the judge is the only one that gave these criminals the Secured Status and paperworks they would have never had and didn't have to ever show they are a party in interest to foreclose...not to mention their debt was on Sch F, disputed all along, with "tila" violations on sch F next to their name and their debt should have been discharged. they were sent by BNC my discharge order with was a week prior to their scheduled hearing for the motion. Shouldn't they have objected to Debtor's discharge? last day to object was cont. by Trustee in 727 Motion, and the last day to Object was one week before they filed their Motion for Relief.
One last detail. The trustee wrote No distribution, No Asset report more than a month before they filed their Motion for Relief, and requested to be dismissed from the case as it is fully administered and he has no more duties to perform.
Oh yes, the reason I also didnt file the inj. in state court with complaint was because of all I have read with these guys getting them dismissed due to claims not being abandoned, and my case was still open. A week later, i had hearing on my 554 motion and I had properties and a laundry list of claims abandoned back to me from estate and trustee (he didn't object). At first judge did a tentative denying the motion, and so if anyone was going to object, it was to be done at the hearing, but i obj. to his tentative with good cause showing and he reversed and granted my motion.
I don't know if any of the creditors, or the "Servicer" would have objected or not, as per their knowledge of the tentative ruling, "dismissed without prejudice."
I need to get trustees deed that was just filed, and it says the beneficiary was the Sub Trustee, a real criminal outfit that has pages of complaints by people who have done BPO's for them and say they have never been paid and this Sub Trustee does not respond to their emails, calls or letters.
Like I said above, the "Servicer" in their mfrs allege they are the Trustee, did not do a NOD, NTS, and they told me they did not Sub Trustee. However, as to my "material" evidence, I have a call that my point of contact gave me permission to record in the beginning (he must have been new), 2 weeks before the sale date, and he said they have no sale date and did not authorize any upcoming sale and that they are the Trustee and beneficiary. He also said the "loan" just went to foreclosure and they have not done a NOD and will not if I fill out and send the paperwork back. he told me to get the signed mod packet in immediately if I wish to maintain the property, they will give a mod based on the value they put in their motion for relief (over $200k then they alleged I owe).
I know my bad, after them not contacting me for months in the beginning and never sending a mtg statement, and then in their mfrs putting all wrong facts and wrong loan amounts, late charge, etc. I should have never believed there would not have been the sale.
How can I present the phone call as evidence? it is not on my DoR, as it occurred after the fact, but is related to the appeal.
I'm going to get a copy of Trustees deed.
well, good mornin, and thanks for your time. sorry i wont proof read this, and my list is long:
1. need to deal with 3 day notice from investor that bought place at sale and don't know if I should tell him about broken chain and litigation going on
2. need to concentrate on brief, and follow the directions and decide which of my mutliple statement of issues to focus on (standing, real party in interest, lying in proposed order saying trustee and debtor never objected, and their motion was granted when in fact during the motion to stay order, the judge said he ruled in my favor and dismissed their motion as to me), or prove the fraud assignment they presented that was used for their "colorable claim." I'm still trying to figure out if they should have listed the creditor, a completely diff name of bank as trustee for trust in their motion for relief. they lied and said they were creditor. i have their letters to me and cfpb saying they are servicing for a diff creditor, yet their mfrs they told the court they are the creditor and did not mention the "creditor" nor the trust. and then there's the trust...and securitization issue I could pound, because that right there makes their claim unsecured.
Lotsa info, I know, I'm pretty burnt out and lots to do with brief, not being a lawyer, but I'll follow the "recipe." I have collected tons of cases, laws, etc. to back it all up.
Oh crap, and i have what they put as 2 appeal nos. but they are related. one was for civ judgment orders not hearing and denying my motions to dismiss, strike, reverse their motion for relief and the other appeal is the actual order.
oh my gosh, does that mean i have to do a Brief for each one? if so thanks for your help, but i think I'll be having a stroke any minute if that's the case. Jk, i have bigger faith than that.
But no way i can do 2 briefs and try to do what need to do to invalidate the sale in state court. and I'm sure a UD will be lurking, though I contacted person that bought house, but we haven't spoken, he wants to meet next week, but I don't know what to tell him yet, sure would like to alert him to broken chain of title, and fraud assignment though....just don't want to create any bigger mess than I'm dealing with and would love to put him off until my briefs are done. appeals aren't moot btw cuz of fraud involved.
Hi - we've gotton far away from the subject matter we started on, and I'm not sure that I can answer all of these particular issues with the limited facts I have. It's going to be really hard for someone to give you a step-by-step for a complicated issue (or issues) that you have.
I hope my firsts posts were helpful for you, but I don't think I can confidently address all of these issues - - there are too many contingencies that could change the answer I may give. Sorry for any inconvenience.
i understand, thanks so much. can you just tell me if the bk case will stay open as long as the BAP is open? because it my appeal is presentd well, doesn't it get remanded back to bk court? or would they transfer it to fed court where they have jurisdiction to deal with the current issues as a result of the erroneous ruling? (what i was told by clerk, i certainly have one and could "win")
Thanks so much, so that means the bk case will stay open until appeal is over?
Yes, it should.
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