Automatic Stay wasn't lifted?

[tennessee]

Thanks to everyone for your advice so far. I've spent about 13 hours this weekend picking myself up and learning how to file a proper answer and counter claim...but was hoping someone could give me some insight into something I have read. I know this is pretty detailed but you guys seem brilliant and I thought maybe somebody could either debunk my thoughts or confirm them.

Soon to be ex and I are jointly in the 13, jointly on mortgage and the mortgage and arrears for our home are collected by and paid by the trustee...This would make the home the property of the bankruptcy estate, correct?

My ex has filed in his complaint for divorce that he would like the county judge to either divide the home equitably or that he be awarded the home outright. I have filed my answer to all of his claims this weekend...hard task but I think I have it down.

Question: I have read about the automatic stay, protecting those under Chapter 13 bankruptcy. It states that, in matters of divorce, it is not necessary to file for the stay to be lifted unless dissolution of marriage proceeds to the extent that such proceeding seeks to determine the division of property that is the property of the bankruptcy estate.

My ex did not file for the stay to be lifted...He is asking that the court divide or award him property that is a part of the bankruptcy estate. I'm thinking this could be my "affirmative defense." I could possibly request that HIS complaint for divorce be dismissed based on his failure to have the stay lifted.

Wrong? Right? Give it my best shot?

...Yes, I know. I need an attorney!! But I'm doing the best I can Any thoughts?

[catleg]

Divorce court trumps bankruptcy court, believe it or not. You want something paid to you for the equity in the house when it exits BK ("equitable distribution"). Is it underwater? Will there be equity at the end?

It is good that you're going to fight the case, just be sure to get a lawyer involved, even if you have to work out payments. Preferably a good lawyer.

[lrprn]

Divorce court trumps bankruptcy court, believe it or not.

Careful, catleg....not always. It depends on what is involved, the state's divorce laws, and related bankruptcy case law decisions.

Even those filers who have both divorce and bk lawyers struggle when the two are happening at the same time. It isn't always clear cut which one trumps, especially because the law practices in each specialty have their own state-based divorce and bk case law and the national bk law to mesh.

[tennessee]

My understanding is that automatic stay is national law...not state. I am in Tennessee. I was also told this by the first attorney I sought to retain for my divorce months ago and just remembered it this weekend. He had told me that we would need to file for the stay to be lifted since the house needed to be an asset in the divorce. This was a very well respected attorney who talked directly with the trustee...

This all just hit me last night when I ran across this on a website.

I'm kind of shocked to hear that divorce court possibly trumps bankruptcy court. That goes against everything anyone I have talked to has told me. Could you elaborate?

Even the mortgage holder on the house told me that even if the local court ordered my name be removed from the mortgage, there was nothing he could do until the house was out of bankruptcy...Is this not correct?

[lrprn]

My understanding is that automatic stay is national law...not state. I am in Tennessee.

The automatic stay is national - no worries about your mortgage holder coming after the house as long as your 13 is active.

He had told me that we would need to file for the stay to be lifted since the house needed to be an asset in the divorce. This was a very well respected attorney who talked directly with the trustee...

I'm sure this is correct in TN then.

I'm kind of shocked to hear that divorce court possibly trumps bankruptcy court. That goes against everything anyone I have talked to has told me. Could you elaborate?

As I already warned catleg, what he said is not always the case. Since you have been getting legal opinions from both your divorce lawyer and your bankruptcy lawyer, your issue is likely one where bankruptcy trumps divorce in your state.

Even the mortgage holder on the house told me that even if the local court ordered my name be removed from the mortgage, there was nothing he could do until the house was out of bankruptcy...Is this not correct?

Given what you've told us so far, because of the automatic stay, this is correct. Until your Ch 13 is discharged successfully or is dismissed by you or your trustee, because your house is an asset in your Ch 13 your mortgage lender cannot change the deed or mortgage terms unless they have cause to petition the court to lift the stay first.

[rrockinggramma]

so your actual goal is what exactly? To stop the divorce OR to make sure that you get fair equity out of the house in divorce court?

If it is the latter, and you have answered your complaints to Amex and to divorce court, then YOU file the motion to lift the stay to remove it BK court (opening up the lender to also go after the arrearage? (not sure on this) and let the divorce court know that is what you have done so you can be sure to get your 1/2 in divorce court.

I guess I was unclear by your post if you are trying to stop the divorce completely or if you are just trying to protect your interest in the house once the bk is done.

[tennessee]

Oh no, I don't want to stop the divorce...if I can stop his proceedings I can start my own immediately and I will be in a much better position. Along with my answer I am also including an affirmative defense and counter complaint for divorce. If his proceedings are dropped due to failure to follow proper BK procedure and my counter complaint is accepted I will then be in a much better position...I should have filed months ago...My problem is that I don't take anyone's advice...even when I know it's in my own best interest.

I have left a message for the trustee this morning to file a motion to lift the stay for my counter complaint. Yes, I realize that I am opening myself up for the credit card company to come after me...But one thing I have to realize is that at this point, if that was going to happen, it would happen eventually anyway.

[rrockinggramma]

in Michigan we have "no fault" divorce. Is that the case in Tennessee? If not, then whoever files for divorce has to prove the reason is valid, right? Cheating in Michigan (I found out) is against some really old law but I never pressed it in court. LOLOL Maybe Tenessee has the same old time law.

But I am still a little confused. I know you are trying to get the upper hand here but in no fault divorce does it matter who files?
You have your list of demands, right? And of course notifyig the trustee that this divorce will involve an asset in the bk case is very important and alerts the staff of changes in your filing.

And you want him to sell the house or refinance it to get your name off of it which does indeed effect the bk

but other than making your demands known in divorce court and alerting the trustee. I don't think the trustee would dismiss unless payments are behind. I think the trustee would just demand that if the divorce is proceeding that the proper motions be filed. But then I could be wrong. . . . . .

[tennessee]

Tennessee is still a fault state...

I didn't really mention this here because it is totally unrelated to the bankruptcy but he filed for divorce citing that I am guilty of inappropriate marital conduct. That is so not true but you basically have to choose one. Irreconcilable differences is also an option...but for whatever reason my ex chose to file either/or. Irreconcilable differences as a secondary to inappropriate marital conduct. Without going into a bunch of detail...it's just not so...especially since he is guilty of adultery.

Seeing that I live in a fault state inappropriate marital conduct and adultery still matter...not much, but it does still matter. In my counter complaint, I cite an either/or also...irreconcilable differences as a primary or as an alternative, adultery...I'm not trying to take everything. I don't feel that I am entitled to everything and wouldn't ask for it. I'm just trying to protect myself...especially against those possible credit card fraud charges which are totally bogus.

[rrockinggramma]

ok well being in a fault state definitely makes a difference. Michigan must be unique. No fault insurance, no fault divorce and schools of choice. (no vouchers needed, kids can just go to the school they think is best suited for them as long as within the county. THe school I worked for was very popular and had lots of students cross district lines to get there) LOLOL

Anyway, to me the adultery is by far the most damning charge which obviously leads to the other. And if you can prove "his" fault, does that mean you are awarded more in the divorce, as the more injured party?

But he has already filed claiming that you were at fault and now you have to prove that he is at fault not you. I think I am getting it here. You might have to start gathering up evidence of his infidelity etc. Not sure in a fault state how hard it is to get divorced.

But for now I would just alert the trustee, which you have done. Good luck in all of this. ;)