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Ask Terry L. Your Own Question
Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2897
Experience:  Better Business Bureau. 18yrs bankruptcy experience. Chicago Bar Assoc. American Bankruptcy Institute member.
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I am in a Chap 7 bankruptcy. My case has been discharged with

Customer Question

I am in a Chap 7 bankruptcy. My case has been discharged with the exception of a lien on my house. I have filed an Adversary Proceeding as the paperwork was fraudulent -- robosigners, assignments dated after the close of the trust, etc. The creditor was represented by a lawfirm that filed a Motion to Lift the Stay accompanied by an obviously fraudulent assignment and an altered promissory note.

Then they brought in another attorney(#2) to try their case. He filed a different altered note. Both attorneys testified under oath that the creditor was the Real Party in Interest.

Then another out of state attorney (3) filed a second Motion to Lift the Stay. I answered outlining all the fraudulent activity and that i would request sanctions so the attorney withdrew his complaint.

Then the 2nd attorney filed a request to have the case dismissed because the Trustee had failed to object to my homeowners exemption. It is awaiting a hearing.

Now, attorney #1 has sent me a letter advising he will be filing a Motion to Lift the Stay!

Don't they have to notify me of a change of attorneys? How many attorneys can they use at once? I consider this harassment. Can you advise.
Submitted: 6 years ago.
Category: Bankruptcy Law
Expert:  Terry L. replied 6 years ago.

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. :

I see a couple issues here.

Terry L. :

First, the creditor can use however many attorneys they want, but they would need to file an appearance on behalf of the creditor.

Terry L. :

You indicated that you filed an adversary objection. Are you trying to strip the lien off of the home?

Terry L. :

I understand that there could be problems with assignments, robosigners etc. but I want to understand what your goal is here.

Terry L. :

IF you are trying to strip off the lien as bad, it could potentially cause issues with your case

Terry L. :

First, the exemption for homestead in AZ is $150k.

Terry L. :

If the house is more valuable than this, then stripping off an invalid lien could create equity in the house that the bankruptcy trustee may want to pursue to liquidate to pay your creditors.

Terry L. :

You may be permitted to take out an equity loan to pay off this amount to avoid liquidation, but would need to discuss this with the trustee and/or your attorney should it arise.

Terry L. :

You can easily object to the motion to modify the stay by showing, or forcing the lender to show that they are properly in line with valid transfers, assignments etc.

Terry L. :

If your goal is not to strip off the lien, by proving it is not properly perfected, and thus, thereby discharged as an unsecured debt, I'm not sure what the goal will be.

Terry L. :

Creditors can object within 30 days of the 341 hearing to use of exemptions. IF the exemption is disallowed, it shouldn't impact your right to a discharge, just that the exemption isn't permitted.

Terry L. :

if that is the case, then the equity, if any can be liquidated.

Terry L. :

Lifting the stay just permits the lender to start foreclosure action or other state transfer rights they may have in the collateral. If you do not reaffirm, the debt is discharged in the case.

Terry L. :

So, from what I can see, it sounds that you are trying to invalidate a lien, and hopefully, the value of the property is less than the allowable exemption.

Terry L. :

If so, you would then own the property free and clear of the mortgage and can keep it if there is no equity for the trustee to liquidate.

Terry L. :

The hurdle you have, or the lender has, is to show that the lien is valid, and perfected, and all subsequent transfers, assignments, etc. are valid.

Terry L. :

Thanks for your question, good luck.