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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 38440
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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How can you use case law to stop a bankruptcy in California?

Customer Question

How can you use case law to stop a bankruptcy in California? How would you get this into court in a non-judicial bankruptcy, to stop a bankruptcy that is over 4 1/2 years , 9 months out side statue of limitation? Case law showing used in such a case?
Submitted: 4 months ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 4 months ago.

Hello again, and thank you for opening a new Q&A session.

1. Bankr. Code Section 108(c) suspends the application of a statute of limitations during bankruptcy until 30 days after the automatic stay terminates or is lifted by the court. In re Cowen, 207 B.R. 207, 210 (Bankr. E.D. Cal. 1997).

2. For a Chapter 13 bankruptcy, the automatic stay terminates when the bankruptcy plan is confirmed by the court...unless the plan or plan confirmation order provides otherwise. In re Petruccelli, 113 B.R. 5, 14-15 (Bankr. S.D. Cal. 1990).

3. In your circumstances the question is whether or not the bankruptcy plan and confirmation order modified the automatic stay with respect to the promissory note and deed of trust upon which you seek to foreclose by judicial action.

(a) If "no," then the statute of limitations has continued to run, and has now expired, which means you cannot file an action to foreclose the deed of trust.

(b) If "yes," then you would have 30 days after the date that the automatic stay terminates to file your foreclosure action.

4. The collateral issue here is why you need to utilize judicial action to foreclose, since a nonjudicial foreclosure remains possible, if the debtor has failed to pay in accordance with the requirements of the original note? You would simply have to wait until the bankruptcy plan is completed in full, if the promissory note is provided for under the bankruptcy plan -- or move to set aside the plan on grounds that the debtor has failed to comply with the terms of the note.

5. It should be fairly obvious that you issue may be modified by all sorts of facts and circumstances, which I cannot possibly deal with in a single Q&A session. Moreover, both Justanswer policy and California law prohibit me from actually reviewing your case in this forum, because that would be a bona fide legal service.

If you need more personal attention than can be provided in this public forum, give me your email address and I'll contact you directly.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Customer: replied 4 months ago.
You have commented on bankruptcy status but not answering the question. Statue of Limitations of over 4 years has occurred, I need a case law that uses statue of limitations in California of 4 years to stop a foreclosure in a "NON-Judicial proceedings.
Expert:  socrateaser replied 4 months ago.

Your original question requested case law re the statute of limitations for "judicial" foreclosure. That is the question that I answered.

The Miller v. Provost case that I previously cited explains the law for both judicial and nonjudicial foreclosure. For a non-judicial foreclosure: "Section 882.020 provides that the lien of a mortgage or deed of trust expires 10 years after the maturity date of the obligation if that date is [1709] ascertainable from the record, or 60 years after recordation of the deed, if the last date fixed for payment of the debt ... is not ascertainable from the record." [internal quotes omitted] Miller at 1708-1709.

To be clear:

1. Judicial foreclosure: four years from the date of the note's maturity or acceleration by the creditor.

2. Non-judicial foreclosure: 10 or 60 years dependent upon the facts ascertainable from the county clerk recorder records.

Note: I thought you were the creditor, based on how your questions were previously asked. You now appear to be asking questions as if you are the debtor. If yes, then you would have to move to set aside or modify the bankruptcy confirmation order, and enter a new bankruptcy plan order that prohibits foreclosure. The case law for this type of action depends on the exact facts and circumstances of your case. Neither I nor anyone else can provide a "silver-bullet" case law citation, such as you are requesting, because the case law must be applied to the specific facts of your case. It would be incompetent for me to tell you otherwise.

You need to have a lawyer review all of the facts and circumstances, and your bankruptcy plan and confirmation order -- and that cannot happen in this forum.

Again, if you need more personal attention than can be provided in this public forum, give me your email address and I'll contact you directly. Or, if you prefer, I will reopen this Q&A session for others to try to assist.

Please let me know your preference. Thanks again for using Justanswer!