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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 31018
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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if a creditor who has a second mortgage lied to the bankruptcy

Customer Question

if a creditor who has a second mortgage lied to the bankruptcy court and said that they were in first position and that caused me to be thrown out of chapter 13 two years ago then later came to bankruptcy court and claimed to be in second position when I refiled chapter 13. What can I do to them?
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  Roger replied 3 years ago.
Hi - my name is Kirk and I'm a Bankruptcy litigation attorney. Thanks for your question.

You can file a motion to reopen your bankruptcy and also file an adversary proceeding against the creditor for fraudulent or intentional misrepresentation and fraud on the court.
Customer: replied 3 years ago.

i have filed a new chapter 13 because they went behind my back and extended a writ of execution to sell my property at sheriff's sale after being quiet for 2 years. So I'm in Chapter 13 now. The question is can I ask the bankruptcy judge to do something to them ? When you say adversarial proceeding, are you referring to an action in superior court for fraudulent or intentional misrepresentation and fraud on the court, or is this something to do in bankruptcy court. Can I use this to quash the writ of execution? Thanks

Expert:  Roger replied 3 years ago.
Ok. Thanks.

You can file an adversary proceeding in bankruptcy court against the lender in your bankruptcy case. Also, you can ask the court for an injunction to stop the writ of execution until the case is resolved.
Customer: replied 3 years ago.

adversary proceeding in bankruptcy based on fraud on the court based on what?


 


ask which court for an injunction to stop the writ of execution? The bankruptcy court has automatically stayed the writ so are you referring to asking superior court for an injunction to stop the writ based on ???? Fraud on the court, judicial estoppel?


 


Remember, I am pro se, I haven't done this before so please be as detailed as possible so that when I search for more information, I can phrase the question in such a way that I'll get returns from google that apply to my situation. Thanks

Expert:  Roger replied 3 years ago.
Fraud on you and the court would be based on the misrepresentations made by the creditor.

Also, if the bankruptcy court has stayed the matter, that's good. Also, you would need to file a motion for an injunction with the superior court to stop the proceedings as well.

The adversary case would be your lawsuit for damages against the lender for the fraudulent misrepresentation.
Customer: replied 3 years ago.

again, thank you but ....


 


1.which court would I use for a fraud on the court petiton, bankruptcy or superior or both......


 


2. and what relief would I ask for? Can I ask that my second mortgage be disallowed, can I ask for damages, can I ask to void the foreclosure, can I ask the superior court to quash the writ of execution?? Can I ask the bankruptcy court to quash the writ of execution.....


 


can I ask that the court any of the above and which things would be in superior and which in federal bankruptcy court?

Expert:  Roger replied 3 years ago.
You would file your action in bankruptcy court as an adversary proceeding.

You would ask the court to stop the writ of execution because it doesn't have priority to pursue you - since it is behind another creditor.

You would also ask the court for any damages you sustained as a result of the actions and misrepresentations of the creditor.

You can't likely ask the court to stop the writ of execution, and also if the creditor is behind others, it should be an unsecured creditor for most of the debt.
Customer: replied 3 years ago.

The writ of execution was obtained in 2010 stating that they were in second position,


 


the foreclosure filed in 2007 stated that they were in first postion.


They had me thrown out of bankruptcy in 2010 stating that they were in first position


 


They acknowledged to the superior court in 2010 they were in second and would post at the sherriffs sale that the name and the amount of the priority lien. This was done, but they didn't exercise the writ and waited for it to expire.


 


When it expired two years later, they filed for an extension to the chancery court judge who had originally issued it. The submitted the writ to the sheriffs sale without notifying the first mortgage holder or me and


we only found out about the sheriffs sale a few days before sale. They should have notified interested parties of their request for an extension to the writ?


 


Sheriff's sale only reflects the second mortgage with no priors listed


 


They are stating that a satisfaction of mortgage exists to the court but they do not have a valid satisfaction of mortgage, only a copy which is a forgery and which has never been filed with the court clerk because of this fact.


 


The lien is unsecured because of the fall in property values but they are trying to have me thrown out of bankruptcy court any way possible and/or trying to force sell the property using this newly extended writ of execution


 


Legally, second position can foreclose which they have done but they are relying on documents that are inaccurate and making statements that contradict their earlier statements in various courts .

Expert:  Roger replied 3 years ago.
Ok. Thanks.

You should file an adversary proceeding in bankruptcy court and ask for an accounting of the creditor to make sure that the creditor's position is valid. Also, you can pursue your other claims as well. Bringing this matter before the bankruptcy judge gives you your best option to get some relief from the court for their actions.

Bankruptcy court is a debtor's court and gives you the best chance to recover from the creditor.

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