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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33809
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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California. "expert" advised me to file chapt 11 march 2012,w/out

Customer Question

California. "expert" advised me to file chapt 11 march 2012,w/out attorney, "we will add later" judge immediately dismissed.but real estate lender stopped in foreclosure.then next month same thing, would not negotiate so again filed chapter 11 WITH ATTY. BAD ATTY.schedules horrible, judge converted me to chapter 7 BUT after attys (3) took retainers, excellent atty advised to dismiss.
then bk trustee abandoned all properties back to my estate.now home was abandoned, but lender is going for lift of stay, filed jan 04th 2013 on abandoned property, but they moved sale date to jan 16th 2013 and bank has "bk expert" write the motion. so something is up. CAN THIS LENDER FORECLOSE BEFORE THE COURT HEARING ON JAN 28TH? ALSO I MUST HAVE MOTION TO OBJECT TO LIFT OF STAY FILED 14 DAYS PRIOR, SO JAN 14TH MONDAY? please advise, new rules say if you had more than one case in year dismissed there is no protection of stay? thank you
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 1 year ago.
Hello,

You asked: CAN THIS LENDER FORECLOSE BEFORE THE COURT HEARING ON JAN 28TH?

A: Assuming that the stay is in force, then a foreclosure sale occurring before an order granting relief from stay is void. See In re Gruntz (9th Cir. 2000) 202 F3d 1074, 1081–1082.

ALSO I MUST HAVE MOTION TO OBJECT TO LIFT OF STAY FILED 14 DAYS PRIOR, SO JAN 14TH MONDAY?

A: The original and two conformed copies of the opposition, together with the request for hearing (above), must be filed with the court within 11 days from the date of service of the motion and notice of motion. The opposition and request must be served on the movant, named respondents, and the U.S. Trustee at the same time.

Where the motion was served by mail, a respondent has 14 days to serve and file an opposition. FRBP 9006(f).

New rules say if you had more than one case in year dismissed there is no protection of stay?

A: Generally, in a case filed by or against an individual Chapter 7, 11 or 13 debtor who had a bankruptcy case pending within one year of the current case that was dismissed, the § 362(a) stay prohibiting actions against debt or property securing such debt or with respect to any lease terminates with respect to the debtor on the 30th day after filing of the current case. Bankr. Code § 362(c)(3)(A).

Hope this helps.
Customer: replied 1 year ago.

i am not clear on last paragraph, i did declare bankruptcy and it was dismissed in march only 3 days after I filed , due to my not having atty for chapter 11. so in thirty days i refilled again chapter 11 with an attorney, so thats two cases in one year. do I have stay protection?

Expert:  socrateaser replied 1 year ago.
Based on your allegations, in my opinion, no stay is in force in your case. However, the rules are sufficiently complicated, such that the bank "expert" probably can't make the determination with certainty, so he/she is filing the motion for relief from stay as protection, in case the stay is actually in place.

Given that the attorney believes the stay may be in force, it's unlikely that the foreclosure will take place as scheduled. But, the foreclosure trustee can postpone the sale by open outcry at the place of auction, until a date subsequent to the date of the stay hearing.

The court may not bother investigating whether or not the stay is in force, since the bank probably isn't arguing that point. And, if you don't bring it up, then everyone will treat the stay as in force.

If the bank really believed that the stay wasn't in force, then it would simply hold the foreclosure sale as scheduled, and not bother with the motion at all.

Hope this helps.
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33809
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for your information, I will provide bonus to the 40, another 20 if you can further advise, regarding the lender, I had a sale date dec 9th, and then extended to jan 9th , so I assumed again as it has been for 6 months, be extended by 30 days, so since the lender filed motion for lift of stay on the 4th, i am puzzeled by why then when they extended, did they only do it for a week? any thoughts, why do that?

Expert:  socrateaser replied 1 year ago.
The only thing that comes to mind is that the lender's lawyer doesn't want to risk being wrong on the stay issue. Because if he is wrong and the sale goes before the stay is lifted, then you can get sanctions against the bank and void the sale. Whereas, if he waits until the stay is formally lifted (or, the judge smiles, and says, "Stay? What stay?"), then the worst that can happen is that the bank is annoyed, and the lawyer must give up his fees for filing an unnecessary motion.

That's the only thing that makes sense to me, based on what you're describing. So, it's more of the lawyer "covering his assets," then any real legal strategy.

Hope this helps.

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