HELP - Creditor Does Post Petition Transfer

[IMiller]

Couple of items: 1. Transfer of note is not perfection, recording the assignment w/county recorder is. That's the recorded assignment documentation that's needed for the Mot to Lift Stay.
2. Ladyinthered incorrectly stated that creditor does not need to be a creditor pre-petition, the definition she supplied clearly states that yes, creditor is the entity that has a claim that arose prior to petition.
A judge in AZ last month decided that Deb in Possession (ch 11) could avoid lien under Sec 544 where assignment was not recorded. I am going to attempt this argument next month and wanted to know if anyone here has had any experience with this.
Also, does it constitute fraud when an entity files POC and can't produce any docs to support it its position as a creditor as defined above?

[IMiller]

recording = perfection

Couple of items: 1. Transfer of note is not perfection, recording the assignment w/county recorder is. That's the recorded assignment documentation that's needed for the Mot to Lift Stay.
2. Ladyinthered incorrectly stated that creditor does not need to be a creditor pre-petition, the definition she supplied clearly states that yes, creditor is the entity that has a claim that arose prior to petition.
A judge in AZ last month decided that Deb in Possession (ch 11) could avoid lien under Sec 544 where assignment was not recorded. I am going to attempt this argument next month and wanted to know if anyone here has had any experience with this.
Also, does it constitute fraud when an entity files POC and can't produce any docs to support it its position as a creditor as defined above?

[despritfreya]

@IMILLER

Your "show me the note" argument is a loser especially in AZ, but , have at it. It will buy you about 18 months of more rent free living. And if you are referring to the Bailey Chapter 11 - you better think again. If it's not, PM me the case I and will critique it for you.

Des.

[IMiller]

Never said anything about the showing me the note and I don't care about it. I'll share the case, if you share your background expertise that qualifies you to critique it.

[RunningMan]

Des is a bankruptcy attorney

[IMiller]

Awesome, for which side?

[RunningMan]

Our side. He has been very generous with his time on this website.

[IMiller]

there are 4 sides, define 'our side' (debtor, debtors counsel, creditor or creditors counsel). Nothing is what it seems. I am probably not on the side you think.

[LadyInTheRed]

1. Transfer of note is not perfection, recording the assignment w/county recorder is. That's the recorded assignment documentation that's needed for the Mot to Lift Stay.
2. Ladyinthered incorrectly stated that creditor does not need to be a creditor pre-petition, the definition she supplied clearly states that yes, creditor is the entity that has a claim that arose prior to petition.

1. An assignment does not need to be recorded for the assignee to have a perfected lien. If you read the deed of trust (including the recorded model deed of trust it may refer to for many of its terms), you will likely find a clause saying that an assignment does not need to be recorded. If the Creditor can't produce evidence of the assignment, that's one thing, but the lack of recording of the assignment does not invalidate the assignment.

2.You missed the point and misread the law I quoted.
As I quoted, a creditor is defined as:

entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor;

The claim has to exist at the time of filing. The entity does not have to have the claim at the time of filing. The entity that "has a claim" can sell that claim to a new entity. The new entity is then a creditor, as defined by the BK code, because it "has a claim against the debtor that arose at the time of or before the order for relief."

there are 4 sides, define 'our side' (debtor, debtors counsel, creditor or creditors counsel).

In a dispute between a debtor and creditor, there are only two sides. Anyone who is on a different "side" than their counsel, should get new, competent, counsel or stop fighting their own attorney.

[justbroke]

Four sides? Wow. Did someone implead another party? On the "debtor's side" there is only the debtor. If represented, it is still the "debtor's side". As Lady wrote, if you don't like your attorney and the direction that the attorney is taking you, since they represent you and speak as you, then you should always get another attorney.

Des is a bankruptcy attorney for the debtor. His side is with the debtors in the Bankruptcy Court. I'm not sure if you're looking for help, IMiller, or just for an argument. If you came here for an argument, then you came to the wrong place. We are here to help based on our collective experience in these matters. There are both professional practitioners here (member of bar, admitted to practice before the United States District/Bankruptcy Court, and debtor attorney), BK paralegals, and and seasoned pro se debtors.

So, in the Bankruptcy context, we speak from the caselaw established in the US Bankruptcy / District court, as well as the Circuit Court of Appeals and any relevant US Supreme Court rulings on bankruptcy matters. As for local non-bankruptcy courts and relevant to litigation in the State courts, there are limited resources here and for the most part, those items end up in State court anyhow.

Besides, once the case closes, the stay is removed and you are back where you should be... in State non-bankruptcy court. I have read many cases where they kept arguing and the case closed and the judge wrote an opinion that it's all moot since the stay is gone. If you're fighting over avoiding a lien, that's another story and if you want the "debtor's side" view, you should respect what Des is telling you. Or, just hire an attorney.