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Roger
Roger, Attorney
Category: Bankruptcy Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Ive been trying to evict the previous owners of a foreclosure

Customer Question

I've been trying to evict the previous owners of a foreclosure out for the past few months. The previous owner had filed for bankruptcy three times this year, so they had to request for "automatic stay". I have objected and there will be a hearing in a few days.

Both the husband and wife have been alternating filing for bankruptcy to extend their stay at that house that I own now. My question is can I request for "In Rem" relief at this hearing? Or do I have to file motion for "In Rem" relief and get another hearing date?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Roger replied 1 year ago.

Kirk Adams : Hi - I am really shocked you're still dealing with this matter. What a crazy set of circumstances you've found yourself in.
Kirk Adams : If the debtor has filed for an extension of the automatic stay, you can file a response objecting to the request, and IN YOUR RESPONSE, you can ask the court to deny the automatic stay as to your property to stop this never-ending carousel that the debtor/s have been on.
Kirk Adams : Here's a good link you can read about in rem orders: http://www.bankruptcylawnetwork.com/in-rem-orders-in-bankruptcy/
Kirk Adams : A request for an In Rem order in your response/objection to the motion to extend the automatic stay should get the issue in front of the judge and allow him/her to enter such an order.
Kirk Adams : Also, the court could find that the automatic stay doesn't pertain to your eviction anyway if the eviction was granted before the bankruptcy filing.
Customer:

So I don't actually have to file for motion for in rem relief separately? I'll just have to include in rem relief in my response when I object their automatic stay extension?

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 27258
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 4 other Bankruptcy Law Specialists are ready to help you
Expert:  Roger replied 1 year ago.
Hi Jack -

You can do it either way, but I usually file the request for an In Rem Order in the response/objection. You can actually name your response something like "_____ (your name) Objection to Debtor's Motion to Extend Automatic Stay and Counter-Motion for an In Rem Order".

Then you can address both issues in the same document.
Expert:  Roger replied 1 year ago.
Hi - please let me know if you have any additional questions. If so, I'll be glad to assist you.
Customer: replied 1 year ago.

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

 

Is it possible to get a hearing even though the case has been dismissed? Or is there another way to approach the judge?

 

I have a hearing on the 7/12/2013 (motion to lift automatic stay), but the case was dismissed 7/1/2013. Will I still be able to go to this hearing and let the judge hear my side of the story?

Expert:  Roger replied 1 year ago.

To be perfectly honest, I have never had a case where a hearing was scheduled to be heard after the order of dismissal has been entered. I'll see if I can find something on that, but below is my knee-jerk reaction....

HOWEVER, because the debtor could still technically appeal the dismissal, the order is likely not final for 30 days. Thus, the court could still retain jurisdiction over the matter.

The botXXXXX XXXXXne is if the hearing has been set, you should appear unless you're told otherwise. You can still appear and ask the judge to enter an In Rem order on your behalf.

If the judge informs you that he can't take action due to the dismissal, then IF they file again, you can re-file your motion to lift stay and for an In Rem Order and have it heard before the dismissal occurs.

Customer: replied 1 year ago.

I will ask my attorney if we are able to go to the hearing on the 12th and present our case.


 


But please try to get back to me on having a hearing after the dismissal.

Expert:  Roger replied 1 year ago.
I will - - I've just never seen a hearing set after a case has been dismissed - - so I don't know what to make of it!
Customer: replied 1 year ago.

So there is no way to ask for a hearing for "in rem" relief not regarding a bankruptcy case?


 


I want to be on the offense instead of being defensive and always waiting for them to make the move.


 


I want to take preventive action, so I won't have to go through serial bankruptcy filing.


 


I just want a bankruptcy judge to hear my story.

Expert:  Roger replied 1 year ago.
I don't think an in rem order would apply outside of bankruptcy court because bankruptcy is the only place a debtor can go to get around a debt/judgment. I've never seen an in rem order outside of bankruptcy.

I understand you want to be heard and that their abuse if the system is frustrating. I'm still reading up on your other issue.
Customer: replied 1 year ago.

Alright thanks for all the help. I will definitely rate all your answers excellent once you find out what would be my best option to get a judge to hear my case.

Expert:  Roger replied 1 year ago.
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.
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 27258
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
Roger and 4 other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.

My attorney doesn't believe the judge will be able to do anything, but I told her to go ahead and show up to the hearing.


 


Thanks for the advice!

Expert:  Roger replied 1 year ago.
The best option is to contact the judge's administrator and ask that the issue be told to the judge and have him tell you how he/she wants to handle it.

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