Elliott Frank
07-18-2003, 01:26 AM
On 17 Jul 2003 05:58:00 -0700, torgo7@comcast.net (Sharon) elucidated:
We converted to BK 7 in 1/03and lender #1 asked for and received a relief from stay. So far, OK.When one is abandoning the property, this is to be expected. However,mortgage lender #2 never asked for nor received release from stay, andevery month sent the usual bill, giving the amount needed to "catchup".Now, they send us a summons to begin initiating foreclosure. Mycontention is;1. They have been violating the automatic stay consistently-if theauto stay re: billing doesn't apply during the BK 13 it surely appliedduring the BK 7.2. Since they never received relief from stay and they violated theCourt Order of no billing attempts, their claim for their part in theforeclosure is invalid.In both cases, we are eligible to sue and receive monies for the aboveviolations.
To repeat: IANAL (get a real one, you're going to need him/her!)
My answer may ramble a little -- there's several different elements at
play in your situation.
The automatic stay applies to ALL creditors. If your lawyer didn't
clamp down on lender #2 after your petition was accepted, then you
didn't get what you paid for. Accept that he screwed you, and move
on.
Here's where you need a savvy lawyer -- to fight the foreclosure
you're now talking about Real Estate law. A VERY different specialty
from bk. Start by fighting the foreclosure -- lender #2 may fold when
offered an opportunity to appear in front of a judge and explain whey
they violated a court order.
A good bk lawyer can take a look at your specific facts and determine
if the violation of stay can be addressed in Federal Court (after all,
the original bankruptcy was handled by a Federal court). The good news
here is that Federal judges don't like *ANYONE* violating their
orders. The hard part will be proving to a Federal Court that lender
#2 *DELIBERATELY* and *WILFULLY* violated the automatic stay.
If lender #2 is state regulated (private lender or state charter),
then you're in a good situation. Most states have consumer protection
laws against most egregious violations. If the offending lender has a
Federal Banking charter then all bets are off -- if Federal Banking
regulations give the lender an easier ride, their lawyers will claim
that the matter comes under the Federal rules, and if the Federal
rules are silent, they they'll claim that (nonextant) Federal rules
trump state law.
If you can get a lawyer to take your case, he/she's going to have to
do a LOT of research -- there isn't a lot of case law in this area.
Remember that the lender can bring some VERY expensive (and usually
knowledgeable) lawyers to bear on the matter. The good news on cases
like this, is that the internal procedures and practices of most
bureaucratic organizations (i.e., banks and lending institutions) work
against them -- there's a paper trail a mile long hidden in their
files (and they don't go shredding a la Enron). If there are enough
facts (documents they sent you, county records regarding the property,
files from the bk) to support the case (so it doesn't get dismissed
the first time it comes before a judge) then a well crafted discovery
order may produce enough evidence to get them to settle.
You've got a *WHOLE* lot of work ahead of you if you want to pursue
this matter.
We converted to BK 7 in 1/03and lender #1 asked for and received a relief from stay. So far, OK.When one is abandoning the property, this is to be expected. However,mortgage lender #2 never asked for nor received release from stay, andevery month sent the usual bill, giving the amount needed to "catchup".Now, they send us a summons to begin initiating foreclosure. Mycontention is;1. They have been violating the automatic stay consistently-if theauto stay re: billing doesn't apply during the BK 13 it surely appliedduring the BK 7.2. Since they never received relief from stay and they violated theCourt Order of no billing attempts, their claim for their part in theforeclosure is invalid.In both cases, we are eligible to sue and receive monies for the aboveviolations.
To repeat: IANAL (get a real one, you're going to need him/her!)
My answer may ramble a little -- there's several different elements at
play in your situation.
The automatic stay applies to ALL creditors. If your lawyer didn't
clamp down on lender #2 after your petition was accepted, then you
didn't get what you paid for. Accept that he screwed you, and move
on.
Here's where you need a savvy lawyer -- to fight the foreclosure
you're now talking about Real Estate law. A VERY different specialty
from bk. Start by fighting the foreclosure -- lender #2 may fold when
offered an opportunity to appear in front of a judge and explain whey
they violated a court order.
A good bk lawyer can take a look at your specific facts and determine
if the violation of stay can be addressed in Federal Court (after all,
the original bankruptcy was handled by a Federal court). The good news
here is that Federal judges don't like *ANYONE* violating their
orders. The hard part will be proving to a Federal Court that lender
#2 *DELIBERATELY* and *WILFULLY* violated the automatic stay.
If lender #2 is state regulated (private lender or state charter),
then you're in a good situation. Most states have consumer protection
laws against most egregious violations. If the offending lender has a
Federal Banking charter then all bets are off -- if Federal Banking
regulations give the lender an easier ride, their lawyers will claim
that the matter comes under the Federal rules, and if the Federal
rules are silent, they they'll claim that (nonextant) Federal rules
trump state law.
If you can get a lawyer to take your case, he/she's going to have to
do a LOT of research -- there isn't a lot of case law in this area.
Remember that the lender can bring some VERY expensive (and usually
knowledgeable) lawyers to bear on the matter. The good news on cases
like this, is that the internal procedures and practices of most
bureaucratic organizations (i.e., banks and lending institutions) work
against them -- there's a paper trail a mile long hidden in their
files (and they don't go shredding a la Enron). If there are enough
facts (documents they sent you, county records regarding the property,
files from the bk) to support the case (so it doesn't get dismissed
the first time it comes before a judge) then a well crafted discovery
order may produce enough evidence to get them to settle.
You've got a *WHOLE* lot of work ahead of you if you want to pursue
this matter.
