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I was recently evicted from my home on thursday and feel I

was wrongfully evicted. The...
I was recently evicted from my home on thursday and feel I was wrongfully evicted. The bank that foreclosed on my mom and the house in question was sold on the steps in april of last year. in october we filed for chapter 13 in bk court. That ran out after 30 days then we filed another one. We used the bk 13 as a stall to write up a Adversary preceeding entered with a BK7. That was for 30 days and the bank did not respond. So the ch7 ran out and the next motion was a motion of defualt and it is still in play or close to being done. The new bank that baught the house, (duetche bank) has sent us unlawful detainer back in october based on the BK13, yet the eviction this time came with with no unlawful detainer, no 7 day notice to vacate and strait to a eviction. My question is 1. Can they even get an unlawful detainer based on my information above meaning after the BK13 for the BK7 wouldn't they need to restart the process? And 2. being in a motion of defualt not having a BK13 or BK7 in play do they still have leagal standing to evict?

Thank you for your time
Dean Graham
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Answered in 12 minutes by:
2/10/2013
Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 31,875
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for the post.

I have a few questions - -

1. What happened with the first unlawful detainer?

2. What is your adversary case about?

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Customer reply replied 4 years ago


Do I get another answer or do I have to pay more? I thought I get to ask as many questions as I need?

You can ask as many questions as you need to get this straight.

I just asked you a few questions to be clear what we're dealing with.

If the foreclosure has already occurred (last April), and you didn't appeal the foreclosure - - then that matter is over; the house belongs to the bank.

Also, if during the first unlawful detainer action resulted with the court entering an order granting the lender possession and ordering you out, then that order is enforceable and is not affected by another bankruptcy filing (regardless of whether it is a chapter 7 or 13).

The rule is that as long as the eviction order is granted by a court BEFORE a person files bankruptcy, the eviction order isn't affected by the filing.

Based on what you've posted, I assume that's what the bank did - - meaning that it used the the first unlawful detainer order to remove you from the property.

If the bank has an unlawful detainer/eviction order, it doesn't have to start over again as long as it got the order BEFORE you filed chapter 7.

The only thing you could do is appeal the unlawful detainer judgment to stop the eviction.

The adversary case may have some relevancy to this, but I don't know what you have claimed in your case.

Let me know if you have any other questions and/or if my understanding of the facts is not correct. Thanks.

Please POSITIVELY RATE our conversation so I may receive credit for my time. There is no attorney-client relationship and this communication is not privileged.
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Customer reply replied 4 years ago


The eviction came after the BK7 and was the based on the unlawful detainer from the BK 13 from October. The adversary is the lawsuit claiming we are sueing for securities fruad, harasment and elder abuse. But the adversary is over because they did not respond to the summons. we then entered in a Notice of defualt. the next step would be a quiet title process recovering the title of the home. i dont understand why I got evicted and how the were able to obtain legal possesion when my FEDERAL Case is in motion. I thought that since we are in federal court a stay would superceed the local level. Also isnt a motion of defualt act as a BK chapter. And lastly the title of the property is clouded. so many things the new bank who bought the property cant sell because of the clouded title right?

I understand that the actual eviction (removal) occurred after the chapter 7 was filed, but if the eviction order was granted before the chapter 7 filing, it would not be subject to the automatic stay for your bankruptcy. If the lender violated the automatic stay by seeking an eviction after you filed bankruptcy without getting the bankruptcy court's permission, you could claim that the lender violated the automatic stay and that the eviction should be voided.

I think the problem that you have is that your property was sold at foreclosure nearly a year ago, and you didn't appeal that, so it is not likely possible to regain title to the property because the foreclosure is over; and the possibility to appeal has also expired (you usually only have 30 days from the date of the sale to appeal).

The adversary proceeding claiming fraud, elder abuse, etc. may generate you money damages, but it's not likely to give you back title to the property because the foreclosure isn't cancelled or erased by the adversary case or even a judgment if you obtain one.

The reason that you could still be evicted is because your federal case doesn't have anything to do with the lender's rights it has obtained through foreclosure and by getting an eviction order.

IF your adversary proceeding had been filed BEFORE the eviction order was granted, then you could have filed a motion to stay the eviction action until your case is over. However, if that wasn't done, then the bank can go forward.

Also, whether the problems with the title prevent the bank from selling the property depend on how sever the title issues are - - and whether a buyer is willing to purchase the property subject to those clouds/issues.
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Customer reply replied 4 years ago


Their were two evictions one was no good do to the Ch 7 that was filed. The second eviction was followed through after the ch 7 was over and the motion of default was entered. because i didnt enter in another ch then I have no chance or do you think i can still appeal the detainer?

You can appeal the unlawful detainer IF 30 days have not passed since the order/judgment was issued by the court. IF 30 days have passed, then you can't appeal.

BUT, you still can go forward with the adversary case and try to obtain a judgment against the bank for money damages associated with its actions.

Even if you can't undo the eviction or foreclosure, you can try to recover money damages from it.
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Customer reply replied 4 years ago


is the detainer/ eviction the same. Because the eviction was on thusday last week but the detainer was from october. it doesnt seem right that i dont have any rights as of now considering ive been taking all proper and legal channels.I mean if I would of known that the unlawful detainer didnt need to be renewed then I would of entered a nmew BK. This is my home I was born and raised in and I have to keep it. Its been in the family for 35 years

The unlawful detainer order is different from the actual eviction. You have 30 days from the date of the court order to appeal - - not the eviction date. Thus, your right to appeal would be expired.

In order to stop the foreclosure, you would have either had to appeal OR file a chapter 13 bankruptcy before the sale occurred.

Also, if an unlawful detainer were filed, you would have had to file bankruptcy before the eviction order were entered or you would have had to appeal the order to stop the eviction.

However, it is important to understand that the foreclosure and the eviction are two separate things/actions. Once the foreclosure occurred and no appeal was taken, the property was lost at that point back to the lender. The eviction is only possible after the foreclosure occurs and the lender is given title to the property. Only at that point are you unlawfully detaining the property - - because you're remaining in property that now belongs to the lender.

Thus, your adversary case isn't going to reverse the foreclosure or the unlawful detainer that has already occurred. The only thing you can do is pursue your adversary case and if you get a judgment, you may be able to negotiate with the lender and try to settle the matter with a trade off - - release of the judgment for the house, etc.
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The unlawful detainer order is different from the actual eviction. You have 30 days from the date of the court order to appeal - - not the eviction date. Thus, your right to appeal would be expired.

In order to stop the foreclosure, you would have either had to appeal OR file and sustain a chapter 13 bankruptcy before the sale occurred.

Also, if an unlawful detainer were filed, you would have had to file bankruptcy before the eviction order were entered or you would have had to appeal the order to stop the eviction.

However, it is important to understand that the foreclosure and the eviction are two separate things/actions. Once the foreclosure occurred and no appeal was taken, the property was lost at that point back to the lender. The eviction is only possible after the foreclosure occurs and the lender is given title to the property. Only at that point are you unlawfully detaining the property - - because you're remaining in property that now belongs to the lender.

Thus, your adversary case isn't going to reverse the foreclosure or the unlawful detainer that has already occurred. The only thing you can do is pursue your adversary case and if you get a judgment, you may be able to negotiate with the lender and try to settle the matter with a trade off - - release of the judgment for the house, etc.
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Customer reply replied 4 years ago

I appriciate your advice. Infact the network of people I am useing are writing that up as we speek. The term judgment is something I heard along with 35 pages of something. Do you think I can take my case to the local court house here and ask to speak with a judge and present my case to get a stay till this is ironed out? and if I could negotiate a settlement price ofthe home in our judgement, like ad their listing price into the law suite? I think im a little un clear about the release of judgement too


 

Hi -

I don't think there's any way to file anything and get a court order to stay or reverse the foreclosure or eviction because those matters have already completed/and the appeal windows have also closed.

As for the judgment, you would have to be able to prove your damages, and you could claim that the fraud perpetuated caused you to lose your equity in the house, etc. The amount you seek in your judgment is up to you - - but you will have to prove the amounts in order for the court to grant it.

As for the release of the judgment, if you and the lender reach an agreement, you will file a satisfaction of judgment with the court clerk showing that the judgment has been paid in full/settled.
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Customer reply replied 4 years ago


But there are two companies in this the original loan is from american home, and the new owner of the title is Duetche bank who evicted us. so if I understand you correctly your telling me that if I realese the judgment agains american home then deutche bank will Back off? Sorry if im not getting it I am a window cleaner not an attorney

The judgment against the original lender could/should invalidate/create a cloud on the title and also cause problems with the purchase deutche bank made of this account.

However, if you didn't sue or include deutche bank in the adversary case, it would not be directly affected or stopped by the judgment. Instead, the judgment against american should/could invalidate the purchase - - and could end up causing deutche bank to sue american for selling it this loan.

Once you get your judgment, you would likely have to sue deutche bank in your case to remove cloud and try to prove that its lien is invalid because the loan it purchased from american is invalid.
Roger
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Category: Bankruptcy Law
Satisfied Customers: 31,875
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Customer reply replied 4 years ago


Ok now that sounds promising and seems to be inline with whats going on. Last week the house was on auctions.com and we had to jump through hoops and fire rings to get them to stop it. what the banks are doing to the general public is criminal! I cant let them make me another statistic. But this sounds promising! Thank you so much for your time sir, I am very greatful of your knowledge.


 


Cheers

No problem - - glad to help.

However, this is a very difficult position you've found yourself in because the foreclosure and eviction have already occurred.

But, if you can get a judgment against american, and then go after deutche bank, it may be possible to gain some leverage to get a settlement that could result in negotiations to swap your judgment for your home.

Again, this is a difficult situation, but the default (if you get a judgment) will certainly help your position.
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