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Elizabeth Prentice
Elizabeth Prentice, Attorney
Category: Bankruptcy Law
Satisfied Customers: 170
Experience:  Managing Attorney for one of the largest consumer bankruptcy firms in America.
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bankruptcy stopped eviction

Resolved Question:

Hi, I was the one who you recommend filing for emergency hearing for my 'in rem' relief.


 


There is an update: The husband has filed 2 bankruptcy which were both dismissed and is unable to file another bankruptcy until November 30. The wife just filed bankruptcy 2 months ago which was dismissed last month.


 


I was meet the sheriff for eviction, but was stopped by not the wife's 2nd bankruptcy filing, but their son's bankruptcy filing. Their son is not on deed and did not put me as a creditor. He did put in the address of my property which he said he is currently residing.


 


My question is he was not on the deed can his bankruptcy stop my eviction? What do you recommend me doing?


 


My current plan is to have my attorney talk to the county attorney to convince the sheriff to proceed with the eviction.

Submitted: 11 months ago.
Category: Bankruptcy Law
Expert:  Elizabeth Prentice replied 11 months ago.
Thank you for requesting me! If the son is not on the deed or lease, then his bankruptcy filing can not prevent his parents eviction even if he lives there and is using the address on his bankruptcy petition. You are not attempting to collect a debt from him and are not a creditor for purposes of bankruptcy. The only way he could prevent the bankruptcy filing would be if he had a security attached to the home in some way or a contract. Thus, there is no bankruptcy stay in effect. Since the parents are the ones who would need to have an active bankruptcy filing, there does not appear to be any reason why you can not proceed with the eviction. Make sure though that the parents' bankruptcy cases are fully closed. Just because they were dismissed does not always mean they are closed. The court tends to drag their feet doing the paperwork to close a case. I had a client's case closed March 2012, and for some reason the Court closed it a month ago. Go onto the bankruptcy court docket via Pacer, search for their case and click docket and check at the top for the word 'closed.' As long as it is closed, there is no bankruptcy stay that can prevent you from asserting your legal rights.

I hope my answer has assisted you and you will leave me a positive rating. Feel free to continue to ask for me if you need anymore help.
Customer: replied 11 months ago.

I was to note that I bought the property from the bank as a REO occupied home. I'm not too sure if this have any impact on things.


 


Currently the sheriff is refusing the proceed and told us that he will either need bankruptcy court's order to proceed or county attorney advice that he could proceed. The sheriff is taking cautious to everything, so he doesn't do the wrong thing. I know I could proceed, but the officer is not so sure.


 


What do you recommend me doing? Should I contact the trustee or should I continue with my 'motion for in rem' relief and motion to lift automatic stay with an emergency hearing?

Expert:  Elizabeth Prentice replied 11 months ago.
Check the docket first online at CM/ECF/Pacer (ask your attorney to do this since they have a log in) in the bankruptcy cases - the wife, husband - the people on the deed. As long as they are closed there is not a bankruptcy stay in effect. If they are still open because the court is dragging their feet to close them, call the trustee assigned to any open case and ask whether you can go forward or whether you need to call the court clerk and get them to hurry up and close the cases.

Next, contact the bankruptcy trustee for the son, since that is the only active bankruptcy case. The trustee will be the first person to tell you if you can proceed, since they have already looked at the petition for the son. I really don't see how the trustee could say you can't proceed, but since the sheriff won't proceed see if the trustee can send your attorney an email saying there is no stay in effect, which you can give to the sheriff. The trustee is really the only one who would want to file a motion against you to stop the eviction or request fines against you for being a creditor who broke the stay. As long he says there is no bankruptcy stay preventing you from moving forward, then there should be no issue. Sheriff's tend to worry. So as long as you have something off the docket saying the parents' bankruptcies are closed (print a copy of the docket and give it to him) then that should take care of him being able to conduct the eviction. The email from the trustee saying there is no issue with regards XXXXX XXXXX son should take care of the rest.

Elizabeth Prentice, Attorney
Category: Bankruptcy Law
Satisfied Customers: 170
Experience: Managing Attorney for one of the largest consumer bankruptcy firms in America.
Elizabeth Prentice and 2 other Bankruptcy Law Specialists are ready to help you
Expert:  Elizabeth Prentice replied 11 months ago.
I also forgot to mention that the REO issue shouldn't matter. It is the bankruptcy stay issue that could prevent the eviction. Good luck & I hope you are able to proceed swiftly without further delay by this family. I hope my answer has assisted you and you will leave me a positive rating. Feel free to continue to ask for me if you need anymore help!

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