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Elizabeth Prentice
Elizabeth Prentice, Attorney
Category: Bankruptcy Law
Satisfied Customers: 174
Experience:  Managing Attorney for one of the largest consumer bankruptcy firms in America.
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REO occupied home... previous owners not wanting to leave

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I'm sure you'll remember me... I've bought a REO occupied home March 2012. I tried to evict the previous owners many many times after they delay the process by appealing eviction then going through a series of bankruptcy filing. I finally got the bankruptcy judge to order a 'in rem' relief (your suggestion) after their abuse of the system.


 


Now they have filed a complaint toward the bank and I filed at the district court. The previous owners claim that the bank wrongfully foreclosed their home. They filed the complaint on August 7 along with a TRO request. The TRO request was sent back unsigned on August 12.


 


What does this mean when the judge did not sign the TRO and "returned unsigned"?


 


Also they have not served any of the defendants they are filing a complaint on. Do they have a time limit to serve us? Its been 2 weeks since the complaint, but still have not served us.


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. :

Once the stay has modified, you are free to file an eviction process.

Terry L. :

You indicated they filed a 'complaint'

Terry L. :

Where did they file a complaint?

Terry L. :

Bankruptcy? State court?

Terry L. :

What is your question for me?

Terry L. :

Your answer is that you were a purchaser in due course, in either situation. The complaint is really against the lender. The lender will show proper service and proper foreclosure proceedings, and would likely prevail if they did things by the book.

Terry L. :

You should hire a real estate attorney to review the matter. They can contact the bank's attorney to see where they stand as well.

Terry L. :

It shouldn't be a big deal at this point. They are grasping at straws it seems.

Customer:

They filed at district court.

Customer:

So What does this mean when the judge did not sign the TRO and "returned unsigned"?

Customer:

Also, they have not served any of us (6 banks and me). Do they have a time limit on when they need to serve us by?

Customer:

They filed complaint on August 7, so it has been 2 weeks and they have not served us.

Terry L. :

service can vary. Since the judge did not sign the tro, it isn't in effect.

Terry L. :

You can proceed with the eviction

Terry L. :

yes, they have to properly serve you in order for you to file your appearance, or the case will be dismissed

Terry L. :

Let me know if you have any other questions

Customer:

Usually how long does it take for the case to be dismissed if the defendants were never served?

Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2862
Experience: Better Business Bureau. 18yrs bankruptcy experience. Chicago Bar Assoc. American Bankruptcy Institute member.
Terry L. and other Bankruptcy Law Specialists are ready to help you
Hello there! It looks like Terry tried to answer my question while I was away. Since he is not apprised of the situation, I will assist you. I am glad my suggestion to get the in rem relief motion worked!
After a law suit is filed the Plaintiffs typically have about 30 days to serve the papers on the defendant. It sounds like they still have plenty of time, but you should have your attorney check your local court rule. I recommend you call the bankruptcy trustee and immediately inform them that the son (the one in bankruptcy) is violating the bankruptcy stay. The house is part of the bankruptcy state and he can not initiate legal proceedings without the bankruptcy judge's approval. Once the trustee finds out he may actually file a motion or ask that you bring it up to the Judge at the hearing on the matter. State court actions involving property of the bankruptcy estate are deferred to the federal trustee and judge in the bankruptcy. Even if the son isn't on the lawsuit, the law suit may still be a violation of the bankruptcy stay. If the trustee does no do anything, you should file a 1 page "notice of bankruptcy stay" in the state court law suit (but do not appear - your attorney will understand what I am advising) and then your attorney should inform the judge at the in rem hearing to ask what they should do. The bankruptcy judge may be able to order the state court law suit into his court or sanction the debtor for filing it. It is not common to see this situation, so I think your best bet is for your attorney to ask the bankruptcy judge how to proceed at the hearing.
I hope my answer has assisted you and that you will provide me a positive rating! If you need me in the future, feel free to ask for me by name or message me directly.
Elizabeth Prentice, Attorney
Category: Bankruptcy Law
Satisfied Customers: 174
Experience: Managing Attorney for one of the largest consumer bankruptcy firms in America.
Elizabeth Prentice and other Bankruptcy Law Specialists are ready to help you
EPlaw, I was requested, so I don't appreciate you entering the question and continuing the answer.
If you look thru the history, you can see I have been working with Jack here.
Sorry jack

To answer your question, they have 30 days to serve you, at the hearing date listed on the notice, if they haven't served, the plaintiff can ask for more time, or the cause could be dismissed.

As to the "stay" that the other attorney mentioned, you are the creditor, not the debtor, so what she wrote was incorrect. You got the stay modified, so there is no stay. It is not a bankruptcy matter any more, and you can continue to evict.
I actually thought he was requesting me, since I have been working with him the past couple weeks regarding his bankruptcy issue. Your answer did not sound like you knew the details of his case and I was under the impression you improperly answered a question for me. My apologies if you have also been working with the customer.

Additionally, I realize he is the creditor and I was talking about the in rem hearing that is coming up to lift the stay, if the stay has not yet been lifted. If I misunderstood and the hearing has passed and the Judge lifted the stay, he should still contact the trustee to inform him that the debtor violated the bankruptcy estate by filing the lawsuit.
Jack - I am going to opt out, please make sure to rate Terry's answer. If you need any more help, feel free to ask for me by name directly so that other experts aren't confused. Thanks and good luck with the eviction! I am just glad to hear my suggestion for the in rem motion worked!
Thank you EP
Jack, let me know what follow up questions you have.
Thanks
Terry