Notice of Hearing

[Colorfulstom]

I am filing chap 7 and giving up my house in the bankruptcy. I just received a Motion for Summary Judgment including a Hearing to Tax Attorneys' fees and costs. What does this mean and how far am I from having the house auctioned? Will I need to pay the tax attorney fees and costs? The hearing is June 17th and my bankruptcy should be final around June 1st. Will this affect anything? The mortgage company did pay taxes and homeowners insurance but what I did have in equity did not cover the whole amount of both. I think they paid the homeowners insurance first and then the taxes which would make me responsible for the whole tax bill??

Filed: 2/18/10
341 Hearing: 4/2/10
Awaiting discharge

[2manybills]

I'm not sure what state you are in. But a motion to "tax" attorney's fees and costs means to assign attorneys fees and costs to the judgment, it is not actually a "tax" as we know it.

But if this is on your mortgage, I'm not sure why a hearing is going on in another court to obtain a judgment if the bankruptcy has already been filed. Like I said I'm not sure what State you are in, but if it were in California, I would call my attorney and have them file a "notice of stay" in that other court and serve it on those attorneys. That will stop the court from proceeding on that motion.

[justbroke]

Too much depends on where you live. If they are already at the (motions for) summary judgment (MFSJ) phase, this means you didn't contest the foreclosure and they are ready to get a date set. The MFSJ would allow them to then set a first sale date and proceed with foreclosure. This is driven by underlying State non-bankruptcy law, so how the dates are done in your municipality/county/State will vary. Most are by Sheriff's sale on the front steps of the courthouse on a particular day either monthly, semi-monthly, or weekly. The bank does need to notice you on the sale, and that has guidelines that are State specific too... for example some States require a 30-day notice of sale and others only 2 weeks.

[2manybills]

Too much depends on where you live. If they are already at the (motions for) summary judgment (MFSJ) phase, this means you didn't contest the foreclosure and they are ready to get a date set. The MFSJ would allow them to then set a first sale date and proceed with foreclosure. This is driven by underlying State non-bankruptcy law, so how the dates are done in your municipality/county/State will vary. Most are by Sheriff's sale on the front steps of the courthouse on a particular day either monthly, semi-monthly, or weekly. The bank does need to notice you on the sale, and that has guidelines that are State specific too... for example some States require a 30-day notice of sale and others only 2 weeks.

So JB, you mean that in other States, a motion for relief of stay does not have to be filed with the BK Court to proceed with a foreclosure? I didn't know that, I thought Fed law always trumps State.

[justbroke]

So JB, you mean that in other States, a motion for relief of stay does not have to be filed with the BK Court to proceed with a foreclosure? I didn't know that, I thought Fed law always trumps State.

No, that's not what I'm saying at all. I'm saying that how the underlying non-bankruptcy process works varies by State. The relief from stay is necessary if the stay is in effect.

For a Chapter 13, the stay is in affect until the plan is confirmed, and continues, after plan confirmation, for those things provided for in the Plan of Reorganization. For a Chapter 7, the stay is in affect until the case is discharged and that the Trustee has abandoned the asset from the estate. In a Chapter 7, the key is the abandonment of the asset from the estate and the discharge. If this doesn't occur, it's usually because the Trustee is administering the asset.

In all cases, the stay is no longer in affect once the case closes or is dismissed. In certain cases, the stay may go away as to certain types of property after so many days. For example, the stay as to utilities is 20 days (under 11 USC 366) and it's 45 days for executory contracts and leases.

My post was more about what happens after the stay is lifted by motion or goes away based on timing and events.

[2manybills]

No, that's not what I'm saying at all. I'm saying that how the underlying non-bankruptcy process works varies by State. The relief from stay is necessary if the stay is in effect.

For a Chapter 13, the stay is in affect until the plan is confirmed, and continues, after plan confirmation, for those things provided for in the Plan of Reorganization. For a Chapter 7, the stay is in affect until the case is discharged and that the Trustee has abandoned the asset from the estate. In a Chapter 7, the key is the abandonment of the asset from the estate and the discharge. If this doesn't occur, it's usually because the Trustee is administering the asset.

In all cases, the stay is no longer in affect once the case closes or is dismissed. In certain cases, the stay may go away as to certain types of property after so many days. For example, the stay as to utilities is 20 days (under 11 USC 366) and it's 45 days for executory contracts and leases.

My post was more about what happens after the stay is lifted by motion or goes away based on timing and events.

I thought so, but wasn't sure. I know in CA, banks like Chase are filing motions for relief of stay prior to the discharge dates. I don't know if that has anything to do with the fact that we are so far behind in cases being discharged or not, but I'm seeing it more and more in cases for people that I know.

[justbroke]

I thought so, but wasn't sure. I know in CA, banks like Chase are filing motions for relief of stay prior to the discharge dates. I don't know if that has anything to do with the fact that we are so far behind in cases being discharged or not, but I'm seeing it more and more in cases for people that I know.

It's twofold. First, because discharges are running behind and delays their process. Second, it's just to be very methodical in making sure the stay is actually lifted as to that property. Remember, the Trustee may still have their claws into the property and had NOT abandoned the property on discharge. Since a closing can take months to a couple of years, it is important for the bank(s) to do this.

[2manybills]

[QUOTE=justbroke;410377]It's twofold. First, because discharges are running behind and delays their process. Second, it's just to be very methodical in making sure the stay is actually lifted as to that property. Remember, the Trustee may still have their claws into the property and had NOT abandoned the property on discharge. Since a closing can take months to a couple of years, it is important for the bank(s) to do this.[/QUO

A friend of mine is letting go of 3 rental properties and all 3 banks filed motions for relief of stay right after the 341 hearing.