I have a BRief due in state court (not in bankruptcy court). My ex is alleging that if my homestead exemption that was awarded to me by the bk court along with its order abandoning my house is paid, that it will lessen his share of the property division. This isn't true since the bk court ordered the homestead exemption amount to come from my already divided share of the proceeds....so it doesn't impact old excrappohead at all.
I've found supportive case law, so I'm in pretty good stead. BUT, X also attacks my contention that when the house was abandoned by the bk court, that it actually gets abandoned back to the Debtor in Possession (me) and that although the stay against the bk estates property ends with the abandonment, that the stay remains with the Debtor's property until discharge or dismissal.
So: I found something to that effect (the stay on Debtor's property remains until discharge unless a Relief from Auto Stay is added to the request for abandonment BUT I don't know where I got it from! (I didn't make it up either
and the numbers that end each statement look vaguely familiar. Can anyone figure out the source??????
The Automatic Stay. An additional issue that must be addressed when dealing with motions to abandon is the automatic stay imposed by Bankruptcy code Section 362.62 When a voluntary petition is filed with the bankruptcy court, Section 362 of the code imposes a stay against the commencement or continuation of any action to enforce a pre-petition claim.63 The stay precludes a creditor from taking any action against the property of the estate for as long as that property remains property of the estate.64 Absent acquisition of relief from the automatic stay, no action may be taken against the debtor until either the case is closed or dismissed or such time as the debtor’s discharge is either granted or denied, whichever occurs first.65
The most common mistake made in pursuing abandonment of an asset is failing to couple the abandonment motion with a request for relief from the automatic stay. The movant mistakenly relies on Section 362(c)(1) to support the theory that once the property is abandoned from the estate it is free to pursue its state law remedies without concern for the bankruptcy proceedings. What it fails to realize is that when property is abandoned from the bankruptcy estate title vests in the debtor and the stay remains in effect as to the property of the debtor.66 Therefore, unless relief from the stay has been granted pursuant to Section 362(d), the stay remains in effect and any proceedings conducted in contravention of that stay are null and void under Oklahoma law.67
Sales Involving the Interest of a Co-owner
I've found supportive case law, so I'm in pretty good stead. BUT, X also attacks my contention that when the house was abandoned by the bk court, that it actually gets abandoned back to the Debtor in Possession (me) and that although the stay against the bk estates property ends with the abandonment, that the stay remains with the Debtor's property until discharge or dismissal.
So: I found something to that effect (the stay on Debtor's property remains until discharge unless a Relief from Auto Stay is added to the request for abandonment BUT I don't know where I got it from! (I didn't make it up either
and the numbers that end each statement look vaguely familiar. Can anyone figure out the source??????The Automatic Stay. An additional issue that must be addressed when dealing with motions to abandon is the automatic stay imposed by Bankruptcy code Section 362.62 When a voluntary petition is filed with the bankruptcy court, Section 362 of the code imposes a stay against the commencement or continuation of any action to enforce a pre-petition claim.63 The stay precludes a creditor from taking any action against the property of the estate for as long as that property remains property of the estate.64 Absent acquisition of relief from the automatic stay, no action may be taken against the debtor until either the case is closed or dismissed or such time as the debtor’s discharge is either granted or denied, whichever occurs first.65
The most common mistake made in pursuing abandonment of an asset is failing to couple the abandonment motion with a request for relief from the automatic stay. The movant mistakenly relies on Section 362(c)(1) to support the theory that once the property is abandoned from the estate it is free to pursue its state law remedies without concern for the bankruptcy proceedings. What it fails to realize is that when property is abandoned from the bankruptcy estate title vests in the debtor and the stay remains in effect as to the property of the debtor.66 Therefore, unless relief from the stay has been granted pursuant to Section 362(d), the stay remains in effect and any proceedings conducted in contravention of that stay are null and void under Oklahoma law.67
Sales Involving the Interest of a Co-owner
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