Worst Trustee in the world! My case as a victom!

[Charlie777]

I think the law provided refers to the debtor as lessee. We're talking about the debtor as LESSOR here, and the leasehold belongs to Ws2006. A leasehold is a right in the property, and Ws2006 did exactly the right thing in recording the lease with the registry of deeds to protect that right. The whole point of the registry of deeds and recording is what's happening here - to put potential purchasers on notice that there's a leasehold.

Ws2006 you need a Real Estate attorney who has practiced in this sort of case.

[Flamingo]

I received your PM. I am not an attorney but it's obvious you have a complicated matter as to this lease and its "recording" and worked on the advice of the attorney for your landlord. You should have maybe spoken to another attorney at that time as that was not your lawyer. As I stated, I am suspecting the trustee may feel there is fraud involved in all this and you may need notarized proof or some other documentation as to that due to the timeline involved.

[despritfreya]

Ws2006,

We have already discussed the conflict between 363 and 365. Look back at the history of the posts (both threads and maybe my PM- don't remember).

You have added some new info. The lease was recorded within 90 days pre petition. If I remember correctly, under State law it is the recordation that makes it binding upon any bonafide purchaser. My guess is that the Trustee is trying to void the recordation as a preference under Section 547. Since the recordation was not contemporaneously done when the lease was entered into, the avoidance powers of the Trustee would be a viable way to invalidate it. This is just one additional layer that you need to deal with.

Des.

[frogger]

The lease was recorded within 90 days pre petition. If I remember correctly, under State law it is the recordation that makes it binding upon any bonafide purchaser. My guess is that the Trustee is trying to void the recordation as a preference under Section 547. Since the recordation was not contemporaneously done when the lease was entered into, the avoidance powers of the Trustee would be a viable way to invalidate it. This is just one additional layer that you need to deal with.

Des.

Anything that is going to be recorded should be recorded within 30 days of signing. By waiting the length of time that you did, and recording within 90 days pre petition, the trusted has a very valid reason to invalidate it. IMO, this one is walking like a duck, looking like a duck, and quacking like a duck. Don't blame the trustee for a lack of planning/documentation on your part.

[Ws2006]

Well i never knew you had to record a lease. This is my first business.

I can have the....

Real estate agent (who wrote the lease)
Landlords divorce lawyer
and have all the checks i made for rent to prove i was a real business and there was no funny business.

I would have never recorded the lease if the landlords divorce lawyer didnt tell me too. A lease is a lease. Recorded or not? Ive made imporovments (50k) which i have giving the receipt to the trustee as to prove it. I paid all my rent payments with checks. I have people who wrote the lease proving it isnt bs.

I mean what other problems can i face? It looks like having a signed lease with the landlord doesnt mean anything anymore? Does anything mean anything anymore?

[Flamingo]

Anything that is going to be recorded should be recorded within 30 days of signing. By waiting the length of time that you did, and recording within 90 days pre petition, the trusted has a very valid reason to invalidate it. IMO, this one is walking like a duck, looking like a duck, and quacking like a duck. Don't blame the trustee for a lack of planning/documentation on your part.

Bingo!

[tcreegan]

Hi all, Hi Ws,

I think this is the relevant part. The debtor is your landlord, the lessor. You are the lessee.

11 § 365 (h)(1)(A) If the trustee rejects an unexpired lease of real property under which the debtor is the lessor and—

11 § 365 (h)(1)(A)(ii) if the term of such lease has commenced, the lessee may retain its rights under such lease (including rights such as those relating to the amount and timing of payment of rent and other amounts payable by the lessee and any right of use, possession, quiet enjoyment, subletting, assignment, or hypothecation) that are in or appurtenant to the real property for the balance of the term of such lease and for any renewal or extension of such rights to the extent that such rights are enforceable under applicable nonbankruptcy law.

The lease has commenced, you retain your rights, right?

But, hey, I am no lawyer, I don't even play one on TV....

Tom in Colo

[Ws2006]

ok now i get that part after you underlined it lol.

Ok guys last thing i would like to ask for you to clear up.....

The trustee is going to set the date for the auction anytime now.... If he were to fight me on my lease by trying to invalidate it, wouldnt he have to do that before the sale date so he can sell it? Or would all this go down at the day of the auction? For him to fight me on my lease would need lidigation and that can take awhile and cost money. From what i know the first thing is going to be the auction date and i would think they wont have a trail to see if i have a lease or not minutes apart......


Thanks in advance again guys!

[RichM]

Well i never knew you had to record a lease. This is my first business.

I can have the....

Real estate agent (who wrote the lease)
Landlords divorce lawyer
and have all the checks i made for rent to prove i was a real business and there was no funny business.

I would have never recorded the lease if the landlords divorce lawyer didnt tell me too. A lease is a lease. Recorded or not? Ive made imporovments (50k) which i have giving the receipt to the trustee as to prove it. I paid all my rent payments with checks. I have people who wrote the lease proving it isnt bs.

I mean what other problems can i face? It looks like having a signed lease with the landlord doesnt mean anything anymore? Does anything mean anything anymore?

The recordation requirement exists as a way of informing creditors or others with a need to know that a party (the lessee) asserts an interest in the property, so they can proceed accordingly.

Even without being recorded, the lease is still a valid document, and it still provides some protections; but the trustee can indeed invalidate it or force it to be renegotiated if he chooses to do so. You can then file suit against the landlord and attempt to collect your damages, but realistically, that's probably just a lot of pissing in the wind. Your chances of collecting anything near your losses are less than wonderful.

One thing you may want to check, though it's a longshot: Some leases may contain a clause stating that the lessor will record the lease (or more commonly, a memorandum of the lease) with the Commissioner of Deeds or whatever entity accepts these filings in your jurisdiction. Most landlords are basically cheap, and many of them "recycle" leases for years or decades, filling in the specifics for the property in question, and just carrying over the rest of the language that they don't understand, anyway.

If the lawyer who originally wrote the lease inserted language to the effect of the landlord being responsible for recording the lease, and the landlord failed to do so, that may give you a leg to stand on. But in three decades of signing leases, I recall only one that contained such a clause. Every other time, there was either no mention of recordation, or the only mention was that the lessor and lessee agreed that a memorandum of lease was acceptable for recordation in lieu of the actual lease, without specifically stating that the lessor was responsible for recordation.

By the way -- I'm not a lawyer. I've just had a few landlords who never finished their Eagle Scout awards over the years.

-Rich

[Ws2006]

Well if the trustee kick my lease off he needs to pay me first before anyone else so i release my rights for him to sell it the way he wants no?

But again i think the main point people are forgetting..... THERE is a higher off that wants my lease in place, but for some reason the trustee still wants to fight! i swear im scratching my head on this one

[RichM]

Well if the trustee kick my lease off he needs to pay me first before anyone else so i release my rights for him to sell it the way he wants no?

But again i think the main point people are forgetting..... THERE is a higher off that wants my lease in place, but for some reason the trustee still wants to fight! i swear im scratching my head on this one

Your question, my friend, exceeds my limited knowledge of the subject. I know smidgens about law that I've picked up from personal experience. Otherwise, as Mark Twain once said (when he was being awarded an honorary law degree), I know little about laws except how to evade them and not get caught.

Good luck with this, though. Yes, you should have recorded the lease, and the requirement exists for good reasons. But it still sucks to be in your position because a piece of paper wasn't filed, when banks have dead people signing affidavits and get away with it. Kinda makes you wonder about the phrase "Equal Justice Under Law" that's chiseled into the granite of every courthouse in America.

-Rich

[Ws2006]

I totally understand if they fight me on this if their was only one buyer in the whole world for this property and that my lease either makes or breaks the deal. But there is another offer and a higher off! this just blows my mind!

Thx again guys for all your info and for putting up with all my questions.

More info is always needed!

[tcreegan]

....just wanted to throw a word of encouragement your way....the new owner might think a paying tenant is a bonus to the deal and be happy to just add their name to your lease....

Oh well, we can always hope, right?

Tom in Colo

[Ws2006]

Thx you. Ill keep you guys updated on the case.


Thanks again!