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Ask Terry L. Your Own Question

Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2527
Experience:  Better Business Bur 15yrs bankruptcy experience. Chicago Bar
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Ive been trying to evict the previous owners from their home

Resolved Question:

I've been trying to evict the previous owners from their home that went into foreclosure for the past year.

The husband and wife have been alternating serial bankruptcy filing to extend their stay with the "automatic stay". The judge has already order the husband that he will be unable to file bankruptcy for 180 days while the wife is on her third and last bankruptcy filing.

My worry is their son (30 years of age) who is not on the deed/lease, but who lives at the property right now. I believe he is unable to file for bankruptcy and be granted "automatic stay".

However, my question is how will the sheriff know that he is not on the deed when they show him the bankruptcy notice? Filing bankruptcy only requires you to be personally file out the form for bankruptcy. He can fill out that he lives/own at that property and request "automatic stay" for the property that he doesn't own.
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Terry L. replied 1 year ago.

Terry L. :

Hi, thanks for your question. You should hire a lawyer for specific legal advice. No attorney client relationship is created here.

Terry L. :

we have spoken about this before. I

Terry L. :

If your order is for in rem relief, meaning stay modified for the property regardless of who lives there, you would attach that to your eviction notice, and the sheriff will understand that and serve notice of eviction

Terry L. :

you can also discuss it with the sherriff when you make arrangements for service too.

Terry L. :

Have you obtained your stay modification yet?

Terry L. :

If you have your stay relief, in rem, then he can't claim it later.

Terry L. :

thanks

Terry L. :

Terry

Customer:

Not yet, but I'm just afraid that they will dismiss the case before I can get a hearing for "In Rem" relief.

Customer:

I'm just tryign to prepare for the worst right now with questions, so I won't be surprised.

Customer:

Lets say... I didn't get in rem relief. So will their son be able to stop eviction even though he is not on the deed/lease?

Customer:

I know he's not suppose to be granted "automatic stay", but I saw their bankruptcy papers and it seems that you can put whatever you want on it. Making his son able to get automatic stay since no judge will look at the papers until a month or two later.

Terry L. :

it could be possible that the eviction would stop temporarily in a new case by the son, but you would be able to bring a motion to modify the automatic stay in that case too. Best would be to get the In Rem relief in the current case to avoid that whole situation.

Customer:

Its just hard to get a hearing from the judge since the case is being dismissed before my hearing date.

Customer:

Is it possible to get a hearing even though the case has been dismissed?

Customer:

Or is there another way to approach the judge?

Terry L. :

You can try to file a motion and set it for the same date as dismissal, you may be able to get the judge to sign your 'in rem' order to stop this nonsense. You can request shortened notice as well if need be.

Terry L. :

Once it dismisses, then you would be too late.

Terry L. :

Hope that helps

Customer:

Can I request shortened notice for both motion to lift automatic stay and motion for 'in rem' relief? How much time will I be saving?

Customer:

I also got this advice "


Based on my reading, if a FINAL DECREE has not yet been filed, then the case is still technically open. Since your hearing date is so close to the dismissal action, maybe the dismissal will not be final and the hearing can still be held, and that a post-dismissal IN REM order can be entered to prevent abuse going forward.

Unfortunately, there's no definitive law out there, so I can't promise this is the way things will go, but that's my best educated guess. The best thing to do is to call the court administrator and ask how the judge wants to handle it."
Customer:

What do you think about that?

Terry L. :

the in rem relief is the motion to lift stay, so, yes, you can request shortened notice period. If there is a pending dismissal, that is the reason for the shortened notice, so I don't know how much time you are really saving. Normally, the motion requires 7 days notice.

Terry L. :

It's possible, yes, but risky, since the court could dismiss your motion as moot, if the case dismisses before your motion.

Terry L. :

The court could also grant the motion, it can vary by judge and circumstances.

Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2527
Experience: Better Business Bur 15yrs bankruptcy experience. Chicago Bar
Terry L. and other Bankruptcy Law Specialists are ready to help you

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