What form do I use to respond to Motion for relief from Automatic Stay

[JustFileSuit]

have same thing with my mortgage. After I bought the house the original lender sold the mortgage to a different company and they went out of business.

The transfer is not recorded with the county where I live in the name of the new lender.
I am curious to see who's going to foreclose.

And here is the next problem: you (or the Court sua sponte) puts the new lender on the spot, to explain to the Court why it is purchasing a Note and Mortgage which has been "in default" and not making payments for XXX years. On what commercially reasonable basis do you do that, Lender? -- Judge Schenck in famous for doing that (Brooklyn Kings County Court).

It is a little awkward. Why would a bona-fide lender do that? And if there is no bona-fide explanation, then what is your bona-fide basis for coming to the Court??? (You see the problems).


Remember, in land loan matters, the Mortgage follows the Note. Failure to record the Mortgage Transfer does not by itself invalidate the sale of the Note. It "may" impact the ability of the Note owner to retain the security interest in the property, but that is distinct from the ability to Sue on Note. HOWEVER (always a however), the Note has to have a clear and unbroken chain of title. If not, then you can successfully challenge the new party that claims to be the Holder of the Note.

So many of these chains of title have been screwed up, where the Note has been dumped inroan an Indenture Trust Deed run by a hedge fund, that this is fertile ground for attacking the status of Holder of the Note. Happy Hunting!

[Warcraftin]

Thanks for all the help, when I went to speak with the clerk, he stated the case was dismissed. Apparently when I dropped off my Schedules, they were not filed. So I had to refile today : (

Absolutely horrible, lesson learned *Make Copies*

[Warcraftin]

BrokeMike is exactly right; the odds are probably about 40% that the Proof of Claim filer on the Mortgage and Note is NOT the true Holder of the Note!

They have to produce the Note, AND they have to be properly inscribed as the proper owner of the Note on the face of the Note, with the proper authorities for the signatures (assuming it was sold since inception, which it probably was).

You Object to the Relief from Stay by filing a document titled as " Objection to Motion for Relief from Stay". Therein, you would have to argue that the claimed creditor did not actually purchase the Note (if their filing on the Land title records is one of those fuzzy documents that says they bought it for "Ten Dollars", and it is signed by the buyer as "Attorney in fact" for the Seller, and there is no accompanying Affidavit or Power of Attorney Form filed that represents the authority). to see where this goes, you could Google Judge Drain, USBC, Southern District of New York, case is "In Re Parades." There, upon Objection (and adversary proceeding challenging the Proof of Claim) the lender was unable to demonstrate the ownership of the Note, and Judge Drain vacated the entire mortgage!@ Bye-bye lender and the $455,000.

BUT, the atty in that case was very skilled, and the lender was represented by stumblebums. The transcript of the trial is incredible. When you read this you realize how poorly organized some lenders are.

If the party on the Proof of Claim is not the Holder of the note, and Holder has a very precise and specific legal meaning (*actual possession of the Note and the right to enforce it), then they are going to lose in the USBC. But it is a tough fight.

"IF" your Note has been sold a number of times in the past eight or nine years, then the odds are 40% that the claimant is Not the "Holder" of the Note. Under those circumstances, he has no Standing before the Court, and yes you can defeat the Mortgage claim and end up with the house free, even though you are in a "7"!!! Amazing but true.

In response I believe they attached the note with there motion along with some other documents. I did a REFI in 2007 so it is fresh, Along with the note there a few names.

A document titled,
-------------------------------------
Washington State Recorders Cover sheet, Shows.
Grantor(s)
1. Washington Mutual Bank, formerly known as Washington Mutual Bank, FA.
2. Federal Deposit Insurance Corporation.

Grantee(s)
1. JPMorgan Chase Bank, National Association.
--------------------------------------

Then a Document titled,
--------------------------------------
Note
(I believe this is the promise note, as it reads Borrower's Promise to pay, and states the lender is Washington Mutual, dated 2007)
--------------------------------------

Then a Document titled,
--------------------------------------
Government Code 27361.7
This shows a name of nary, state of commission CA, county of Commission Santa Clara, Date of notary execution 11/6/2007. With a signature and date of 1/30/2008.
--------------------------------------

Then a Document titled,
--------------------------------------
Affidavit of the Federal Deposit Insurance Corporation
This states September 25,2008 Washington Mutual Bank was closed by the Office of Thrift Supervision and the FDIC was name receiver and as a result on September 25 2008, JPMorgan Chase became the owner of the loans and loan commitments of Washtington Mutual by operation of law.
--------------------------------------

Then a Document titled,
--------------------------------------
Deed of Trust
Which I don't think matters
--------------------------------------

[Warcraftin]

Why would you want to oppose the motion? If it is from a secured creditor, it usually will be granted anyway.

A question for Warcraftin (the OP) - you say you want to delay your foreclosure. Even if you are able to delay now, you will eventually lose the house anyway if you can't catch up on the missed mortgage payments and continue to make the payments on time going forward to keep the house. Can you do this? Or are you trying to delay the foreclosure for another reason?

To delay, and make them spend more money. I am currently unemployed with extremely limited funds and 8 dependants. I pass the means test & waiver of filing fee, so my goal is to make this as costly and painful as possible for them. My lender made it extremely hard and was impossible to work with when attempting a loan modification while I was employed, and while I was not employed.

While doing this I am collecting unemployment checks which will be used for a new place or to redeem or reaffirm my current place so goal is to collect as much money as possible. The market for homes in my area are tumbling fast and hard. When I refinanced in 2007 the place was over $300k, now there are numerous identical properties available for $180k on the market. Could i catch up with payments on existing $280k loan yes, but given the current value of the home that is not a wise decision for my family. Every delayed month is equal to a plus $1700 to $2000 dollars for me. With my 8 dependants and myself being unemployed that is extremely advantageous for me.

So my goal is prolong as much as possible and redeem or reaffirm my place for fair market value, if that is not possible I will try to stay in the place as long as possible rent free so that when I am finally forced out, I will have enough money accumulated to put it down on a new home.

[Bell30656]

Warcraftin, you have it figured out. Make it as costly as possible for the collector, bank or whomever. You can't do this again for 7+ years so make certain you stay in the house until you can't stay any more.

[JustFileSuit]

[QUOTE=Warcraftin;362473]

In response I believe they attached the note with there motion along with some other documents. I did a REFI in 2007 so it is fresh, Along with the note there a few names.

You did the refinance, so you generated a fresh Note to replace the old Note, and that Note is the governing Instrument. It has only been transferred once, from the insolvent WaMu to the US Govt to JPMorganChase. You have nothing to hang your hat on. They have you cold; the transfer of the Note went through the federal Agency. Forget about challenging the Note.

Challenges to the Note typically have traction when the Note has been chucked into an Indenture trust Deed along with 400 others and the accumulation then parceled out in "tranches" to fresh investors, and then the Note ends up getting "lost" or not properly re-assigned, and then you have some opportunities. Not Here.

Then a Document titled,
--------------------------------------
Deed of Trust
Which I don't think matters

Uh-Oh. You have big problems. You signed a Deed of Trust, so there is now a trustee outside the Court System and they can do a taking of the property and a non-judicial sale by the trustee of the Deed of Trust.

How do you plan to stop the Trustee from just going ahead and holding a Trustee's Sale?

Your leverage has evaporated.

All I can see is that you "could" file suit alleging some imperfection in the Deed and that the trustee is not the Holder properly of the Note and you ask the Court to invoke an extraordinary remedy by injunctive relief to stop the trustee from doing what the Deed of Trust specifically empowers him to do - and that is going: exactly nowhere.

The Courtroom you plan to be in is the US Bankruptcy Court. You plan to re-file a Ch.7. There will be an automatic stay against the Trustee of the Deed of Trust (working for lender JPMorganChase) by virtue of 11 USC 362(a). The trustee will file for Relief from Automatic Stay under 362(d). He will be granted that. You have ZERO prayer of stopping that. He gets the relief, and he proceeds with the non-judicial sale under the terms of the Deed of Trust.

You have no traction to "delay" anything. You are sunk, by virtue of your signature on that Deed of Trust. [And that is why I would NEVER buy property on a Deed of Trust. You effectively sign away your "rights"].

I invite other readers to post their analysis in counter-point, if I have missed anything here!!!

[JustFileSuit]

[QUOTE=Warcraftin;362489]

To delay, and make them spend more money. I am currently unemployed with extremely limited funds and 8 dependants. I pass the means test & waiver of filing fee, so my goal is to make this as costly and painful as possible for them.

Ain't gonna work. You have a Trust Deed. The other side has ALL the leverage.

My lender made it extremely hard and was impossible to work with when attempting a loan modification while I was employed, and while I was not employed.

If you are really, extra nice to the new bankers, "maybe" they will re-sell you the house for the current appraised value. Maybe not. You have exactly zero leverage on the issue. See my further analysis of the implications of your fresh re-fi and the Deed of Trust.

So my goal is prolong as much as possible and redeem or reaffirm my place for fair market value,

That only is going to work in the particulars of your case if they decide to like you. And they only are going to like you if you can bring money to the table! "Money talks, BS walks."

f that is not possible I will try to stay in the place as long as possible rent free so that when I am finally forced out, I will have enough money accumulated to put it down on a new home.

You have no control over that schedule under the Deed of Trust, if they proceed with a non-judicial foreclosure (and they probably will). You are out within weeks. Two months tops after relief from automatic stay.

I see this poster's situation as a nightmare: no cash, a very short leash, and the BK Court not doing anything for him. Shudders.

[JustFileSuit]

Thanks for all the help, when I went to speak with the clerk, he stated the case was dismissed. Apparently when I dropped off my Schedules, they were not filed. So I had to refile today : (

Absolutely horrible, lesson learned *Make Copies*

Nope. The "lesson" is to make photocopies of whatever you plan to file, AND when you file them, get the Clerk of the Court to "Stamp" your retained copy with the Filing Stamp on their little printing machine. THEN you have iron-clad evidence that you handed in the papers!

It is not that the Clerk's office was out to whack you; they are just so swamped with all the filings these days that your papers probably ended up in the hard-copy folder of some other debtor, there to be forgotten, as the "originals" are scanned and put into electronic storage for the access of the Judge on the bench. Such is life.

For anybody planning a new filing of Petition, have the Clerk stamp about 10 or 15 extra copies of your "first page" so that you have them for use in other proceedings outside the BK Court, e.g. in State Court. Always handy. The clerks do this routinely, but you have to ask and have the copies for them to punch in for you.

On the bright side, you just gained a little extra time in your house under the protection of the USBC.

[Warcraftin]

Uh-Oh. You have big problems. You signed a Deed of Trust, so there is now a trustee outside the Court System and they can do a taking of the property and a non-judicial sale by the trustee of the Deed of Trust.

How do you plan to stop the Trustee from just going ahead and holding a Trustee's Sale?

Your leverage has evaporated.

All I can see is that you "could" file suit alleging some imperfection in the Deed and that the trustee is not the Holder properly of the Note and you ask the Court to invoke an extraordinary remedy by injunctive relief to stop the trustee from doing what the Deed of Trust specifically empowers him to do - and that is going: exactly nowhere.

The Courtroom you plan to be in is the US Bankruptcy Court. You plan to re-file a Ch.7. There will be an automatic stay against the Trustee of the Deed of Trust (working for lender JPMorganChase) by virtue of 11 USC 362(a). The trustee will file for Relief from Automatic Stay under 362(d). He will be granted that. You have ZERO prayer of stopping that. He gets the relief, and he proceeds with the non-judicial sale under the terms of the Deed of Trust.

You have no traction to "delay" anything. You are sunk, by virtue of your signature on that Deed of Trust. [And that is why I would NEVER buy property on a Deed of Trust. You effectively sign away your "rights"].

I invite other readers to post their analysis in counter-point, if I have missed anything here!!!

I should of put more information on the Deed of Trust, 50% of the undivided interest of the property in my mother's Trust account. She has since given back the 50% once I filed bankruptcy.

New question:
Is there anything I have to worry about, with filing a 2nd bankruptcy. Also since filing my first bankruptcy I opened a paypal/ebay account. Should I add paypal to the statement of financial affairs as it has fluctuated from 1k-2k.

[JustFileSuit]

Warcraftin;362616]

I should of put more information on the Deed of Trust, 50% of the undivided interest of the property in my mother's Trust account. She has since given back the 50% once I filed bankruptcy.

As respects the Trustee of the Deed of Trust (not to be confused with the trustee of the bankruptcy estate, or known as the "Ch. 7 trustee"), it makes no particular difference who owns it or what percentage: once the Trustee declares a money-payment default, he just goes and invokes the powers granted him, to sell the property, by virtue of the terms of the Deed of Trust. You get a little reprieve by virtue of your BK filing and your automatic stay, but once they lift that (and they will, and there is zip that you can do about it), then he just goes and sells the place out from underneath you.

How do you propose to derail that?

I don't see any avenue here. Does anybody in the Forum? If so, please do chime in!!

New question:
Is there anything I have to worry about, with filing a 2nd bankruptcy

.

I think you have done this in a bit of a clumsy manner. You could probably have filed a "Motion to Open" the old BK Filing, thus preserving the original Filing, on the basis that the dismissal was not equitable and generated by some error or inadvertance inside the Clerk's Office. You could have attached an Affidavit stating that you had filed the Schedules but had not known to obtain a stamped filing-receipt copy, since you were a poor dunce and were floundering around in the Court. Maybe the Judge grants it, maybe not. Now that you have filed a second time, you run the risk that a creditor opposes and asks for a bar "with prejudice" on the grounds of your abusive filing the first time (and abuse is imputed to you since you did not file the schedules). But you get to have a Hearing and then you can explain your version of events and say it has become a big mess due to these bizarre circumstances, and again that remains within the "discretion of the Court."

Then again, maybe nobody peeps and it just squeaks by.

Also since filing my first bankruptcy I opened a paypal/ebay account. Should I add paypal to the statement of financial affairs as it has fluctuated from 1k-2k.[

Yup, it is an asset now. You do have to declare all assets in your statement of financial affairs, as of the date that you sign the document.

[Warcraftin]

once the Trustee declares a money-payment default, he just goes and invokes the powers granted him, to sell the property, by virtue of the terms of the Deed of Trust.
How do you propose to derail that?

Who are you referring to as the Trustee who declares a money-payment default? The Deed of Trust was issued to my mom on the title in case anything happened to me. She is set financially and would never declare a money-payment. Additionally, she has given me back her 50% and I now control 100% of the undivided interest.

Yup, it is an asset now. You do have to declare all assets in your statement of financial affairs, as of the date that you sign the document.

Is it time stamped, meaning balance ending that day, beginning that day, or at the actual time of filing? Would it be wise to get the balance down, I can easily spend the money as I just re-filed today and there are still 5 hours left in the day.

[JustFileSuit]

[QUOTE=Warcraftin;362632]

Who are you referring to as the Trustee who declares a money-payment default? The Deed of Trust was issued to my mom on the title in case anything happened to me

.
I am sorry, I seem to be misunderstanding your situation. How did you finance the property purchase? You live in Washington State. You can buy property with a Note and Mortgage, or you can buy property and use a loan with a Trust Deed in favor of the lender.

The "Deed of Trust" I am referring to, and which I thought you were referring to, is one that the Lender has, incorporated into his Note. Having your Mom hold a deed of trust on the title interest that you have is not germane to the analysis being presented above.

If you bought the property and financed with with a Note and Mortgage, and there is no Trust Deed incorporated into that Note that sets up a Trustee who can act for the Lender, then you have a conventional mortgage situation as we have here in the old New England. The States in the West have that Trust Deed situation (unknown in New England) where the title documents are held by a Trustee for the Lender and he can just go sell off the property under a money default and there is zip that you can do about it. What you are now setting forth is that that is not your case - in which event, everything that I previously posted is inapplicable, and should be disregarded.

What were your intents in having your Mom do remission of your special trust arrangement with her? Looked like a good arrangement, as you set it forth.




Is it time stamped, meaning balance ending that day, beginning that day, or at the actual time of filing?

Would it be wise to get the balance down, I can easily spend the money as I just re-filed today and there are still 5 hours left in the day.

Yup, if the cash is not there at the end of the day, then that is the end of the asset. Go buy yourself some Christmas Gifts, that is a perfectly legitimate endeavor, or make a donation to the Salvation Army or for presents for the troops in Afghanistan if it moves you. All those are perfectly acceptable things to do.

[Warcraftin]

.
How did you finance the property purchase? You live in Washington State. You can buy property with a Note and Mortgage, or you can buy property and use a loan with a Trust Deed in favor of the lender.

I believe it is a Note and Mortgage, the Deed of Trust was just me trusting 50% of the property to my mom. Home is California not sure why they had a recorder sheet from Washington State maybe thats where Washington Mutual was headquartered or something.

What were your intents in having your Mom do remission of your special trust arrangement with her? Looked like a good arrangement, as you set it forth.

I am behind on the HOA so they would go after whoever is on the Deed. With her off the deed they can only go after me.

Is it time stamped, meaning balance ending that day, beginning that day, or at the actual time of filing? Yup, if the cash is not there at the end of the day, then that is the end of the asset. Go buy yourself some Christmas Gifts, that is a perfectly legitimate endeavor, or make a donation to the Salvation Army or for presents for the troops in Afghanistan if it moves you. All those are perfectly acceptable things to do.

Excellent, I'll pay my ebay fees in advance and get some gifts, I appreciate your help and you taking the time to read and respond. I am like a lost sheep in all this. I really can't see how I screwed up the first one, this second one should run much smoother.

This entire site is truly a blessing, I wish I would have found it prior to filing my first Ch7.

[JustFileSuit]

OK, Warcraftin, if you have a conventional Mortgage then the Holder of the Note will have to go do a judicial foreclosure and slog his way through the Court system. Good thinking in having Mom off the Deed of Trust (for the HOA fees) but depending on how the trust deed was structured she might not have been liable for any of it (if she were to get her half only upon your death, for example - then the fees would not begin to accrue against her unless you paid nothing and dies). But those are technicalities.

Stick around on this Forum. there are a lot of bright guys posting here and you can pick up some neat nuggets. Best wishes!