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TJ, Esq.
TJ, Esq., Attorney
Category: Bankruptcy Law
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Experience:  Licensed to Practice Law
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I bought a foreclosure property last year. The previous are

Resolved Question:

I bought a foreclosure property last year. The previous are still living in the property. I filed for eviction. I won judgement for possession and writ of possession, but was stopped due to previous owner (husband) filing for bankruptcy. He filed for bankruptcy three times to delay it long as possible. Finally, the judge order the previous owner (husband) that he will not be able to file bankruptcy for another 180 days. Now the previous owner (wife) is filing for bankruptcy to delay the eviction.


 


After googling and researching online, it seems the best option is 'in rem' relief from the bankruptcy judge. I am already filing for motion to lift automatic stay, but I was wondering if I need to file something different or do I just ask the judge at the hearing for lifting automatic stay?


 


What document would I need to show to convince the judge to grant 'in rem' relief?

Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  TJ, Esq. replied 1 year ago.
Hello and thank you for allowing me the opportunity to assist you.

You are correct that you should file a Motion to Lift the Automatic Stay. You do not need to file anything else because you already have what you need, which is the writ of possession. All you need is for the bankruptcy court to lift the automatic stay, and then you can proceed to execute on the writ of possession.

As for what to provide in order to support your Motion, I would provide the proof that you purchased the property (i.e., attach as exhibits), I would allege that you are not being paid rent and that your property is not adequately protected, I would point out that the bankruptcy filing was done solely to stay in the house and that it should be considered an abuse of the bankruptcy process (and I would point out the husbands many filings). The Motion does not need to be long. Based on what you wrote, I don't think that there is any doubt that the judge will grant your Motion.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is much appreciated. Thank you for using our service!

If you would like to direct additional legal questions to me in the future, then please type "To VAMD" in the subject line of your question.
Customer: replied 1 year ago.

My question is actually directing to requesting 'in rem' relief.


 


I already have filed motion to lift automatic stay before, so I know what is needed.

Expert:  TJ, Esq. replied 1 year ago.
Hi again.

I don't see the need for an in rem order at this point. The husband is barred from filing a bankruptcy, and a lift stay would be effective against the wife's immediate bankruptcy. You should be able to get the lift stay granted and the husband and wife thrown before she'd be even be able to dismiss the case and refile.

However, if you do want to be granted an in rem order, then you need to file a Motion for In Rem Relief as to the property. The Lift Stay Motion will not suffice, and you cannot be granted in rem relief at the lift stay hearing. The In Rem Motion is different from the Lift Stay Motion because you need to provide evidence of bad faith filing. On the surface that seems to be the case. On the other hand, if the wife hasn't filed before, and if she has other debts to discharge, then the judge may not agree that it was filed in bad faith, despite the husband's prior filings. Accordingly, there is a greater risk that the In Rem Motion will be denied.

In any event, for the In Rem Motion you should include exhibits showing that you purchased the house, and present evidence of the bad faith filing. Clearly, you'll want to point to the husband's prior filings, and hopefully the wife doesn't have other debts to discharge. I would probably file the Lift Stay Motion as well, to rely upon if the In Rem Motion is denied.
TJ, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 9617
Experience: Licensed to Practice Law
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