Motion to Dismiss granted

[CoBelle]

My ex brought a motion to dismiss for lack of income, later amended to add that a certain investment property with a Deed of Trust evidencing security might be unsecure and put me over the unsecured debt limits.

My attorney is NOT a litigator and didn't get into evidence things that should have been introduced and otherwise blew the hearing (and that is my being charitable.)

Today, a Receiver appointed to sell the property by the state court, came to the door with the BK ruling (my attorney has yet to advise me of the decision of yesterday) and said since I was no longer in Bankruptcy that he was evicting me. No, there is no foreclosure or sheriffs sale; only the Receiver trying to sell the property in a preferential sale for 1/3 its value.

My questions (and they are legal)
1. What can I do to keep the auto stay in effect?
A, It was an adversarial motion really: can I ask for reconsideration or appeal and will that give me time in re not turning my house over to the Receiver?
B. Does an adversarial decision give you a 10 day extension of the stay?
C. If I immediately convert to a Ch 7, would the stay remain in place?
D. If the auto stay no longer applies and can't be reinstated, is there anything I can do to stop the Receiver from ordering out of my home (all payments current)

Hope someone will respond as my attorney hasn't even told me about the decision which came down yesterday and is otherwise completely ineffectual at best.

[justbroke]

My questions (and they are legal)

You really need a good attorney!

1. What can I do to keep the auto stay in effect?
A, It was an adversarial motion really: can I ask for reconsideration or appeal and will that give me time in re not turning my house over to the Receiver?

What was the adversarial, a stay motion or an adversarial on something else? You can always appeal within 10 days of any Order.

B. Does an adversarial decision give you a 10 day extension of the stay?

It depends on how it is worded! Also, it's 14 days before the party receiving the relief from the automatic stay can actually take any in rem action, to allow for appeal! If the Order contains relief from the automatic stay, it must also mention whether the stay under imposed by Fed.R.Bankr.P. 4001(a)(3) is waived or reduced. (Personally, I think they are in violation, and they can't "self-help" on an eviction. They must proceed under State non-bankruptcy law.

FRBP 4001(a)(3) An order granting a motion for relief from an automatic stay made in accordance with Rule 4001(a)(1) is stayed until the expiration of 14 days after the entry of the order, unless the court orders otherwise.

C. If I immediately convert to a Ch 7, would the stay remain in place?

No! Conversion doesn't change the facts of a relief from stay already granted. This was done to prevent serial filers from doing, what you're trying to do. Your only recourse is to appeal or submit a "Motion for Reconsideration".

D. If the auto stay no longer applies and can't be reinstated, is there anything I can do to stop the Receiver from ordering out of my home (all payments current)

Appeal within 14 days. Or, submit a motion for reconsideration, although the reconsideration will probably be denied and won't affect the relief.

[NowImDownInIt]

justbroke, once again, earns MVP award. In order for them to proceed in a non-judicial foreclosure there has to be a "power of sale" clause in your deed of trust or mortgage. You would have signed this. It basically means that you preauthorized the sale of property to pay off the balance on the loan in the event of a default. In this case the lender (or a representative) can sell the property. Is the receiver you speak of the county Public Trustee for foreclosures?

Had the foreclosure process started before you filed?

[CoBelle]

Thank you so much JustBroke and yes, I really do need and wish for a good attorney. I also want to thank several times over Despritfreya for helping in so many ways and patiently answering my crazy questions.

JustBroke: there was no motion for relief from automatic stay, so no, relief wasn't granted in any order. The Motion to Dismiss for lack of income (denied) and for being over the unsecured debt limit because suppposedly my Deed of Trust didn't prove that I owned the property , thus making the secure debt unsecured and therefore putting me over the unsecured debt limits .

I finally got to speak to a good attorny here that sort of knows about my case. He said that motions for reconsideration or appeal are usually slim (10%) here althou he admitted he was jet lagged and brain dead from a 2 week vaca overseas. He said that the order wasn't final for 10 days and that I should convert to a 7 during that time so that the 'stay' would remain. (I guess that since the stay was in place as of the dismissal and no one requested a relief from stay (and the judge advised the ex NOT to request relief at the first status conference) that maybe the conversion would keep the stay in place?
Altho I have also heard that it might be good only for 30 days.

Anyway....I now at least have a piece of paper from the Receiver demanding that I vacate the house by May 25....so that might be good to prove that he is in violation of the auto stay still in effect (hopefully) for the next 10 or maybe 14 days. The lawyer thought that if I converted to a 7 within the next 10 days that I should be fine.

Then the lawyer gave me some names of good litigators and I'm going to meet with at least one of them right away (and I trust this guy as he is well known for his litigation experience and his efforts to help those who have been screwed ...and that's certainly me!

So I'm still rattled, but at least I'll be able to sleep tonight.

I'm sad tho, because I was really prepared for the next hearing which was to turn the property back over to the crooked Receiver to sell. In a 7 I probably won't have the same opportunity to buyout my ex's share of the marital residence, but the attorney said that I could probably convince the 7 Trustee that the house could be sold for a lot more money than the Receivver wasgonna sell it for. I'd rather that I be able to complete my plan which called for the buy out that I have financing for, plus for repairing the house and then selling it so that I could pay back= ALL my creditors and still have$$$ left to live on.
It was just such a good plan and exactly what the state court envisioned when it appointed the Receiver . Sigh.

Thanks for replying Just BRoke....I'm hoping that there is a way to (1) ask for a stay of the order to dismiss pending appeal OR converting to a 7 to protect the property that would otherwise be sold and force the 7 trustee to avoid the sale as preferential and for less than value.

Ok....need to take a little rest and get my headache under control.

[justbroke]

Oh, your case was dismissed! So, then it's not a "conversion" to Chapter 7, it's a new Chapter 7 filing, with a new Stay!

[CoBelle]

Hi Now I'm Down: I didn' t mean to ignore your post ;I was writing while you were posting and then I never saw it til now. In answer tho :
1)I agree Just Broke is an MVP!!!
2) No the receiver was appointed by the family court in 2008 to sell the marital home that I own 60% of with my long ex-husband. The Receiver didn't 'do' as the order appointing him ordered and needs to be sued but they, lawsuits cost a lot of money...In the meantime, the Receiver was hoping to sell this property so that he wouldn't be able to be sued (after the sale he is terminated and the suit must be filed before, and only with approval of the appointing judge)
3.)I filed for Bk before the Receiver could close on the sale contract. Had he closed on this not at arms lenght contract, I would have had to vacate the property (after sale). He also got an order that I vacate the property, tho I think it can be shown that the order was based on the house first being sold.
4) The Receiver is of a mind that since my Bk is dismissed that there is no automatic stay preventing me from being forced to vacate the home.
5.) I've heard that the Order of Dismissal isn't final and that the stay 'stays' for 10 days (maybe 14) after the order is filed, most likely to give mee time to file a notice of appeal and a request for a stay pending appeal, so in that case, the Receiver's demand that I vacate is a little early.
6.) The chance that I can win the appeal may be slim, tho the actual reason for the dismissal...that my deed of trust doens't prove that I own the property that I secured by the deed of trust and so the loan is unsecured and thus over my unsecured debt limits....is, in my mind, pretty sucky reasoning. (But he's the judge)
7) So it seems that my only recourse would be to file a 7, and as JustBroke now says, since the 13 was dismissed and not for one of those reasons that makes you have to wait 180 days, maybe I file a 7
and get a new stay. If that's the case, then Im ok with it, but I still think that my plan for the 13 was a really good one and one that I could do without much problem.

SO: if its true that I can just file a 7 and that as long as it is filed within the next 10 days that the 13 stay will not end before the 7 stay starts and a stay is a stay is a stay.......
and then there's this, I had to go to the emergency room (kicking and screaming) and they charged me $5000 of which my insurance covered $1000....so maybe I can 'add' that on to my unsecured debt
in a 7.

If its true that I can just file a 7 and 'remain stayed' well, I can live with that.

[Cristo]

CoBelle:

I'm so sorry this happened!! I hope you are feeling better. I will be the first to admit I'm not overly strong on the legal procedure here, but wouldn't it be great if you file the ch 7 but show too much income and get converted back to a 13? In the mean time you could work on proving that your property is indeed secured debt?? I hope your new lawyer is much much better and can make something work for you.

I had my confirmation hearing on Tuesday, which was not really a hearing at all, and got my case continued until Dec. 21. Overall it is going pretty well. AMEX, for all their threats, did not file an objection (or a claim yet, for that matter). BofA did not oppose the motion to value my car at about half what I owe, so that was granted. Just waiting on stripping my second and coming to an agreement over what my final payment will be. I'm going to post a thread about it so I don't take over yours!

Stay strong, we're rooting for you.

[CoBelle]

Well I shore thought I posted a reply....hmmmmm, the disappearing posts again!

Cristo...your support is so much appreciated. Thanks. And I hope your confirmantion goes off without a hitch...I'll be looking for your posting youre results!

I'm feeling better tho constant crying jags when I start feeling sorry for myself.

The REcevier continues to be an arsehole. MF. Threats of eviction without following any of required procedures.
BUT, its forcing me to file a Chapter 7 this weekend. Will file an Emergency Filing to gain an extra 14 days. If my not-yet-called-me -back attorney
won't file online this weekend, I'll be at the Customs Building in Denver at 8am with filing in hand.
Thanks to Lady in Red I completed my credit counseling cert which was a few days out of date.
So pretty much its just check of 7 instead of 13 as on my old 13 petition.

I gave 13 my best shot and it was dismissed for the most bizarre reason. Well if they don't want my money, you know what they can do.

I need to go run on my tm to clear my head.