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DrakeLAW
DrakeLAW, Attorney
Category: Bankruptcy Law
Satisfied Customers: 787
Experience:  Attorney at Drake Law Firm PLC
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I filed a volunteer chapter 13 bankruptcy petition. I

Customer Question

I filed a volunteer chapter 13 bankruptcy petition. I converted my petition to a chapter 11. I was later converted to a chapter 7 by the bankruptcy court. It was a asset liquidation case which consisted of nine real estate properties. six of the properties had outstanding mortgages of which two mortgages where current at the time of filing the initial bankruptcy petition. The other four properties had foreclosure actions pending in state court. Of the four foreclosure actions, only one had a final judgement of strict foreclosure was rendered at the time of filing the said petition.Now after my conversion to chapter 7, the Trustee filed a notice of pendency of bankruptcy case on the land records, declaring to the world that the properties and mortgages had become the property of the bankruptcy estate. One of these notices that where filed on the land records listed 4 real estate properties. The trustee then filed a notice of abandonment of property in court but only listing only 3 out of the 4 properties that where listed in the document filed on the land records. Now after the trustee filed the notice of abandonment in court. I received a discharge of debt under section 727. Now after the abandonment and discharged the plaintiff resumed it strict foreclosure action and foreclosed on the property. One year later I received notice of RELEASE to remove the Notice of Pendency of the Bankruptcy Case to filed on the Land Records. ( I never did file the Release as of yet). I recently learned that the . THE BANKRUPTCY CASE WAS NEVER CLOSED.
I was not aware of this prior to filing my notice of intent to appeal to the district court when I filed my Motion for Order to Show Cause claiming the Debtor violated my discharge injunction because the alleged creditor did not have a valid mortgage lien that could be enforced against the collateral of the property due to a broken chain of title.I wasn't aware of the fact that the non closure of my bankruptcy case, coupled with the Notice of Pendency of Bankruptcy Case filed on the land records and the release of such notice has created an issue regarding the bankruptcy stay pursuant to 11 usc sec. C (1) of the Code. Therefore even through I have been ordered by the district court to file a response to the Appellee's Motion to Dismiss my Appeal.My FIRST QUESTION is can I withdraw my appeal, wait until the case is closed, reopen the case and raise the issue of violation of the automatic stay and violation of the discharge injunction together later in the district court? I never filed a motion for leave to appeal in the bankruptcy court and consider my appeal to be interlocutory appeal and not a final appeal though the motion for reconsideration regarding violation of the discharge injunction was denied.Can you please provide me with Bankruptcy Code and 2nd cir. case law or any authority regarding abandonment vs closing the bankruptcy case. I read In re: Gasprom vs. Fateh but need 2nd cir decision on the matter.
Can you please expound on how sec. 362 (a) (5) and 554 plays in my situation.
Second Question Is the properties still the properties of the bankruptcy estate until I file the release on the land records in spite on the Notice of only abandoning filed in court abandoning 3 out of 4 of the properties?
Submitted: 3 months ago.
Category: Bankruptcy Law
Expert:  DrakeLAW replied 3 months ago.

Hi, my name is ***** ***** I look forward to helping you, please give me a moment to review and possibly research answers to your question.

Expert:  DrakeLAW replied 3 months ago.

I see nobody has yet answered your question, if you are still looking for assistance I can discuss further with you. Please let me know.

Customer: replied 3 months ago.
I filed a volunteer chapter 13 bankruptcy...
I filed a volunteer chapter 13 bankruptcy petition. I converted my petition to a chapter 11. I was later converted to a chapter 7 by the bankruptcy court. It was a asset liquidation case which consisted of nine real estate properties. six of the properties had outstanding mortgages of which twomortgages where current at the time of filing the initial bankruptcy petition. The other four properties had foreclosure actions pending in state court. Of the four foreclosure actions, only one had a final judgement of strict foreclosure was rendered at the time of filing the said petition.Now after my conversion to chapter 7, the Trustee filed a notice of pendency of bankruptcy case on the land records, declaring to the world that the properties and mortgages had become the property of the bankruptcy estate. One of these notices that where filed on the land records listed 4 real estate properties. The trustee then filed a notice of abandonment of property in court but only listing only 3 out of the 4 properties that where listed in the document filed on the land records. Now after the trustee filed the notice of abandonment in court. I received a discharge of debt under section 727. Now after the abandonment and discharged the plaintiff resumed it strict foreclosure action and foreclosed on the property. One year later I received notice of RELEASE to remove the Notice of Pendency of the Bankruptcy Case to filed on the Land Records. ( I never did file the Release as of yet). I recently learned that the . THE BANKRUPTCY CASE WAS NEVER CLOSED.
I was not aware of this prior to filing my notice of intent to appeal to the district court when I filed my Motion for Order to Show Cause claiming the Debtor violated my discharge injunction because the alleged creditor did not have a valid mortgage lien that could be enforced against the collateral of the property due to a broken chain of title.I wasn't aware of the fact that the non closure of my bankruptcy case, coupled with the Notice of Pendency of Bankruptcy Case filed on the land records and the release of such notice has created an issue regarding the bankruptcy stay pursuant to 11 usc sec. C (1) of the Code. Therefore even through I have been ordered by the district court to file a response to the Appellee's Motion to Dismiss my Appeal.My FIRST QUESTION is can I withdraw my appeal, wait until the case is closed, reopen the case and raise the issue of violation of the automatic stay and violation of the discharge injunction together later in the district court? I never filed a motion for leave to appeal in the bankruptcy court and consider my appeal to be interlocutory appeal and not a final appeal though the motion for reconsideration regarding violation of the discharge injunction was denied.Can you please provide me with Bankruptcy Code and 2nd cir. case law or any authority regarding abandonment vs closing the bankruptcy case. I read In re: Gasprom vs. Fateh but need 2nd cir decision on the matter.
Can you please expound on how sec. 362 (a) (5) and 554 plays in my situation.
Second Question Is the properties still the properties of the bankruptcy estate until I file the release on the land records in spite on the Notice of only abandoning filed in court abandoning 3 out of 4 of the properties?
Customer: replied 3 months ago.
Dear Attorney Drake, Can you please tell me if you are currently working on getting me answers to the following above inquires. If not, I will need to let we answer know to reimburse me the charge I just incurred from you inquire regarding the outstanding questions that has never addressed.
Expert:  DrakeLAW replied 3 months ago.

We are going to have to try to narrow this down a little and a little more information will be helpful for me. I will enumerate my responses inline with what I understand your questions to be to try and organize the information:

1. I do not know what exactly you are appealing. You would not want to wait until the case is closed and reopen to hear a stay violation issue. It would all likely be moot at that point. You need to do the appeal when the issue is "ripe."

What about abandonment and closing are you wondering about? Assets are property of the estate until they are abandoned. Assets are only abandoned if strictly ordered abandoned by the Court or they are automatically abandoned by matter of law when the case is closed. In that sense, it is quite simple. I am not sure about your question regarding 362(a)(5) and 554. 362(a)(5) just confirms that a new lien cannot be created against property of the estate while the stay is in effect and 554 states how assets can be abandoned.

2. No, the filing of the release has nothing to do with the properties being abandoned from the estate or not. Once the court orders the property abandoned, they are abandoned no matter what else is filed or recorded.