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socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39027
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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I am a creditor with 5 lis pendens on properties in CA that

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I am a creditor with 5 lis pendens on properties in CA that have very small
first mortgages. (My lis pendens is next in line)
A Bankruptcy Court trustee has moved to have these properties
included as assets in a bankruptcy and stayed my claim.
The Bankruptcy Judge has not ruled on the trustee's motion this for several
The holder of the first mortgage plans to "sue me for damages" in a
State Court if I do not "voluntarily release my lis pendens."

He foreclosed on the first mortgage after the bankruptcy stay without
advising me or the Bankruptcy Court. He bought the property back himself.
He wants to resell the property.
How do I file a creditor's motion to ask the Bankruptcy Court to stay this
action until the Bankruptcy Court decides it wants the asset brought into
the bankruptcy. I do not want to be sued, but he is trying to serve me.

Under California law, only a licensed California attorney can lawfully record a lis pendens on a property without first obtaining approval from the Superior Court. So, if you filed a lis pendens without either a lawyer or a court order, then you are subject to legal action by the debtor for malicious prosecution.


Hope this helps.


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Customer: replied 7 years ago.

The 5 lis pendens were filed for me by a highly respected law firm. I cannot continue to pay them.


It is not the debtor who wants to sue me. It is the 1st mortgage holder on the property

(a trustee for a hard money lender which has gone under and and whose chief officer has beencharged with fraud)


The debtor has recognized and approved the my lis pendens on the property. His bankruptcy trustee has stayed my adversary claim until he hears from the Judge on another matter. The Judge has taken several months to rule on that issue and held me up.


At the very least, don't you think the 1st mortgage holder should file a relief from stay in the debtor's bankruptcy? The 1st mortgage holder just foreclosed on the property and bought it himself without telling The Court. His mortgage was for $120,000 on each property. The houses in that development are now selling for around $200,000.00.


I will eventually be allowed to prove my claim for the $80,000.00 difference, but the 1st mortgage holder wants to sue me in the meantime.


Shouldn't I file a motion in the Bankruptcy Court asking the Trustee to stay any suit from the 1st mortgage holder against me for wrecking his ability to resell this property? Was he mistaken to sell the property in spite of the stay? If I should file a motion in the Bankruptcy Court, what would I call it? Motion for ?????



Under 11 USC §362(k)(1), you can file (1) a motion for actual and punitive damages for violation of the automatic stay, and (2) for contempt under 11 USC §105(a). This could undo the foreclosure, and/or get you a load of dough back from the other creditor.







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