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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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Im trying to clarify if a "creditor" has to plead and give

Resolved Question:

I'm trying to clarify if a "creditor" has to plead and give evidence pursuant to Rule 4001(a)(3) for a chapter 7 or if that only applies to a chapter 11 or 13
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 :

Federal Rules of Bankruptcy Procedure section 4001(a)(3) does not concern pleading and evidence. Which rule are you asking about?

Customer:

I have to look for it. I thought if a Servicer brought a motion for relief from stay they had to list the Creditor that they are servicing for and all deeds recorded. Is this just a "technicality?" (meaning a rule that doesn't have to be adhered to?

cfortunato :

Unless specified otherwise, all the Bankruptcy Rules apply to each Bankruptcy Chapter (7, 11,12,13).

Customer:

what about when an alleged creditor (who you know is not a creditor) files a motion for relief. are they bound to set forth they motion with proper specificity, pursuant to FRBP Rule 3001(a) & (c) or does that not apply to chapter 7?

cfortunato :

Yes - anyone (creditor or not) who files a motion in Bankruptcy court must follow all Bankruptcy rules - including section 3001(a).

Customer:

thank you, XXXXX XXXXX let me rate your answer. so I'll ask: can that be used (with good cause) to oppose their motion for relief from automatic stay? or not the stay per se, because they motioned for relief 2 months after the last day to object to a discharge of debtor, 1 1/2 months after Trustee filed No asset report and estate fully administered and request to be dismissed from case since no further duties. The judge began the hearing by saying he first wanted to ask the attorney for alleged creditor of loan, "Why did you file this Motion? I don't understand what we are doing here." the attny was silent for a long pause and then said, "because our client asked us to." I'm not a bk attny, but the judge was and he said a few times he just didn't understand what we were doing there and why the motion was filed. he was going to close my No Asset case, I already had been given a discharge. Judge said my case was going to be closed the same day they filed their motion. He said if they didn't file their motion, they'd be in the same place. I also had them on Schedule F but they said they were on Sch D and submitted a Sch D but it didn't have their name on it. But the judge said there was no stay, the estate was empty and the trustee already said he didn't want property or claims. So he dismissed their motion as to me as moot, and to the empty bk estate, and signed their order because the Trustee was only one left, but he already said he didn't want it. Since they were on Sch F, should they have first filed an objection to discharge, which they had 6 months to do? Why did the judge ask that? I know he knew, any ideas (educated ones)? Then while their motion was pending my opposition, I filed a motion to abandon 554 for property and claims, but that hearing was after their Motion. I filed it as an ex parte motion, it was tenatatively dismissed without prejudice. I opposed on the hearing date, and submitted what the judge said was missing and then he granted the 554 motion. I don't know if anyone would have opposed, but if they read the tentative ruling, it appeared to be dismissed or I mean denied without prejudice. Before, if I understood the judge, only Trustee could object. Now that the property and claims were abandoned to me, can I object? I appealed, and am attempting to complete my Brief. However, my daughter has been really ill, had emergency gall bladder removal, and now there is something wrong with her kidneys. I'm hoping to get my Brief in by the due date. But I keep wondering, if I can bring up the rules above that I used in my opposing motion now that property was abandoned back to me. I'm not opposing the stay, I'm opposing their ability to foreclose because they were on F and rightfully so and I can prove it. they are not a secured creditor let alone any creditor of mine. But I keep wondering, because judge said only Trustee could object before, do I need to put in my appeal I now can appeal and object because of being of having the property abandoned back to me? They didnt submit any evidence, just words, all false words, amounts, etc.

cfortunato :

The fact that there has already been a discharge should be sufficient to get the motion dismissed - because once the Bankruptcy is discharged, the stay is no longer in effect. Bankruptcy Stat. 362(c)(2)(C).

Customer:

I was waiting to submit the following, but I just read what you wrote. What grounds would allow their motion to be dismissed, stay on Schedule F and have their debt discharged being that it is not secured, let alone anywhere near valid? the judge said he did dismiss their motion as to me. I didn't understand and filed an appeal, and he didn't understand what i was appealing because he said he ruled in my favor and denied their motion as to me. But I'm appealing, and i don't know what my "grounds" are here except they were always listed as disputed and on Sch F. They never objected and the objection date was extended pursuant to 727 by Trustee and I didn't object. One of my issues on appeal, which I brought up, was they were on SCH F. I think they did the Motion because they wrote in capitals 7 times "SECURED CREDITOR" and other lies. I think this Motion was the only way they could foreclose because I sent them many letters (qwr's they never answered) telling them I would seek all legal remedies if they foreclosed without giving me proof that they had authority to foreclose. They never gave any proof. They said pursuant to respa, they only have to give info on servicing, and then they said they didn't have the account history for the past 6 years, only since they started servicing which was the past 8 months. then they had wrong late fee, wrong loan amount and wrong monthly payment. They had everything wrong. Even their Assignment they made in art class didn't list the beneficiary they said assigned it to them verbatim. It was off by a mile but had first 2 words right. (I don't know if an assignment DoT has to list assignor beneficiary like it is in original DoT, but these criminals aka creditor, were the assignor and assignee. I know i gave a mouth full, as usual. I'd love to know what my grounds are for the appeal in dismissing their motion on this issue and their debt should be discharged because I received a discharge before their hearing for their Motion. I don't know why the judge even signed their order, though he waited 2 weeks. I only learned 2 days before i could appeal because an attorney told me I couldn't. This is what I wrote before you answered above: I mean 4001-1(b)(B) "Contents. The motion shall consist of or (if the motion is more than five pages in length) begin with a concise statement of the relief requested, not to exceed five pages, that lists or summarizes, and sets out the location within the relevant documents of, all material provisions, including:


(i) the name of each entity with an interest in the cash collateral;" Does this mean they are required to list the Creditor if they are the Servicer (the Creditor they say they are servicing it for? especially if the Creditor is a Trustee for a Trust? Because they didn't mention the Creditor and they lied and said they were the creditor and they were in possession of the original note. If the court new of the Creditor they put in their papers to me and to the CFPB in response to my complaint and other complaints, then the court would know there is no possible way they could be telling the truth about being in possession of the original note. This loan was done in 2006, no one has original notes from all I've read (i'm not an attorney though and i suppose there could be an exception to every rule


 

cfortunato :

A motion for relief from the automatic stay that is filed after a discharge can usually be dismissed based on the fact that the motion is ''moot'', since the automatic stay is no longer in existence.

Customer:

well I guess they got around that by also bringing the Motion against the Trustee. But like I said, 2 months, well, 1 1/2 month before their motion, the Trustee filed a No asset report, fully administered estate and on record at the same time requested to be dismissed from the case...nothing left to do. But the judge (who I love and is so patient and kind and explained repeatedly that he ruled in my favor and dismissed their motion as to me), so if that's the case, why did he sign their order saying they could foreclose as long as it was within ca rule....for foreclosing. But he did not grant their request waiving the 2 week and/or 7 day wait time. So shouldn't I be able to get them for violating the bankruptcy injunction? they were on Sch F and they were sent by BNC the discharge before initial hearing with they alleged debt included in the unsecured debts

cfortunato :

If the foreclosure occurred before the 7-day waiting period, you may be able to have the judgment of foreclosure vacated, because that would be a violation of te Bankrupty stay.

cfortunato :

However, the motion to have to have the judgment of foreclosure vacated should be filed in the court that issued the judgment, not in the Bankruptcy court.

Customer:

i'm in california and it was the bankruptcy court. no judgement, but the judge gave the green light by signing their Order (movant to prepare order). so the bk court needs to vacate the foreclosure since they authorized it, right? well, only seems right. I provided evidence that they had as much an interest as I have a long curly tail and a third eye. Seriously though, you know, nothing new anymore, they were given a colorable claim on a forged and fabricated assignment deed of trust. it wasn't real. kinda like an 18 year old getting in a club with a fake ID. the "presumptive validity" of the ID let the 18 year old, cuz it said she was 21. well this assignment said they were assigned the loan from original note and DoT lender. The original DoT lender doesn't exist anymore, and maybe the fake ID was made from someone who died, yet they both have a purpose to get something or somewhere you wouldn't otherwise get. If you don't get caught, then it's ok, and it's starting to seem like even though all the evidence shows you are not 21 or the real assignee, some folks just don't care. The difference is, even though I proved with material evidence the assignment no how, now way was real, I didn't have the rule, code or case law that accompanies it, so I think they call that "boilerplate?" I haven't looked that word up yet, but I'm guessing it's showing the proof and but none of that matters if you don't cite the title and section it's violating. So I didn't have the broken chain of title rule, or the rule that the original lender sold, assigned and transferred the loan years ago, even though I proved it through copies from the county recorders and I don't have the code/rule that many people own the trust where the loan is, not this one "creditor." but we're way past my original question. I'm appealing the ruling on granting the auto stay to the trustee or....i don't care about that, but it was a motion for relief and all the judge ordered was a colorable claim and said ok about trusteee, yet he signed their order that said a ton more. any words of wisdom are great, any rules, codes that go along with my jibberish. I've been up all night, so not good time to communicate, going to bed now, as always, thankyou so much!

cfortunato :

You're welcome!

Customer:

does the bankruptcy court really not have jurisdiction to not grant or sign an order allowing the auto stay to be granted as to the Trustee without giving authority to foreclose, given opposing material evidence? or does granting relief from the auto stay go hand in hand with the ability to foreclose?

cfortunato :

If a Bankruptcy is not yet discharged, then the mortgage company must first get relief from the automatic stay to commence or proceed with foreclosure. There is no such requirement (for relief from the automatic stay) for a trustee to foreclose a property.

Expert:  cfortunato replied 1 year ago.
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Expert:  cfortunato replied 1 year ago.

If a Bankruptcy is not yet discharged, then the mortgage company must first get relief from the automatic stay to commence or proceed with foreclosure. There is no such requirement (for relief from the automatic stay) for a trustee to foreclose a property.

Customer: replied 1 year ago.

sorry i wasn't clear, last comment on this post. thank-you for your time and patience.


My question is whether a mfrs order can be signed without granting foreclosure initiation or proceedings of property? The Motion for Relief was only granted as far as Trustee was concerned, but wasn't necessary due to him already fully administering estate and writing No Asset report months prior.


And since they were on Sch F, shouldn't they have objected to a discharge first?

Expert:  cfortunato replied 1 year ago.
1) Yes - an mfrs order can be signed without granting foreclosure commencement.
2) No - they did not have to file an objection to discharge.
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience: Bankruptcy professor.
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