Removal to State Court

[refiler]

I am wanting to move a foreclosure case from BK (13) to State court. The hearing for lift of stay is set for 10/5/11 in BK court.
I am interested in moving it as I may have found an atty for a state court action as well as a couple of other reasons (Rooker-Feldman concerns plus an allegedly more favorable state court judge).
I have searched for rules (and a sample motion) governing/requesting the removal from BK court but have not found... unless it is within FRCP 14(a)(1)?

The moderator might see this post as more suitable to the foreclosure section.
Thanks!

[justbroke]

You don't need to remove it. If the creditor is already filing or has filed a Motion for Relief from the Automatic Stay.. and the property is not provided for in the Plan (or otherwise marked as surrender in the Plan), then it is not part of the Reorganization Plan (and estate property). This is especially true in a confirmed Chapter 13. (Unless the Trustee is interested in the property. However, if you check PACER, the Trustee probably filed a Consent...)

If you want to speed things along a "little", just file a DEBTOR’S CONSENT TO RELIEF FROM STAY. However, this is not required. It only makes it easier for the lender/creditor to get the requested relief. Additionally, the Plan should not provide for curing any arrears and should read that the property is surrendered.

My opinion is that since an RFS is already in progress, you could file the CONSENT and not appear at the hearing and they will get their relief. It will then go to the local (non-bankruptcy) court. Now, as to whether the lender/creditor is any mood to pursue foreclosure at this point, is an entirely different matter!

This is just an example, but I don't think you even need to file a consent.

NOW COMES DEBTOR, John Doe, appearing pro se, and files this CONSENT TO RELIEF FROM THE AUTOMATIC STAY for the Motion for Relief From Stay (Doc. No. XX) filed by secured creditor SOME BIG BANK, AS TRUSTEE FOR SOME OTHER BANK TRUST 2012-XX1 ASSET-BACKED CERTIFICATES, SERIES 2012-XX1 (“SOMEBIGBANK”), and would state the following;

1. SOMEBIGBANK filed a secured claim as claim No. 1 (the “Claim”).
2. As stated in the Motion, the property is located at 123 Main Street, Anytown, FL 33000 (the “123 Property”).
3. Adequate protection payments for the “123 Property” are not provided for in the Debtor’s Plan.
4. The Debtor’s Plan states that the collateral for this Claim will be surrendered.
5. Debtor does not object to the entry of an Order by the Court lifting the stay as to said “123 Property”.

[refiler]

I just want to be careful that I'm not creating a record that could contradict my claim in state court. Certain identical exhibits filed within their RFS will crop up again in state court.

[justbroke]

I just want to be careful that I'm not creating a record that could contradict my claim in state court. Certain identical exhibits filed within their RFS will crop up again in state court.

You have legal issues that should really be dealt with by an attorney experienced with collateral estoppel issues. Your decision to not fight the RFS in the Bankruptcy court may be used in an estoppel measure by the plaintiff in the foreclosure, that you posted no defense in the Bankruptcy court. In that "example" above, you would need to also add language that you are not admitting to any of the claims in the motion and are merely consenting to this moving to the non-bankruptcy court -- where it should be anyhow.

I'm glad that you at least see that this is intricate and what you say in the bankruptcy court, could come back to bite you in the non-bankruptcy court. I'd be very careful of an attempt by the plaintiff to claim collateral estoppel.

For example, say that you have a defense that the plaintiff in the foreclosure action is not a party in interest and has no locus standi (standing). They may seek estoppel because you didn't raise that defense in the RFS motion. This is where it gets very delicate and you need to be careful. Similarly, if you raised the locus standi issue in the Bankruptcy court and the Judge rules that the movant did have standing, then the plaintiff (in the foreclosure action) might use estoppel to stop you from using the same issue of standing in the non-bankruptcy foreclosure action.

If you still don't want an attorney after I posted the pitfalls, then best of luck to you. I can't say that the plaintiff's attorney is that on-the-ball and will move for estoppel, but there you have it.

[refiler]

Thanks for reply.
I'm not sure why you assumed I don't want an atty.?
Also, in the event a reader is pondering BK vs. state court, my preference toward state court is based solely on the judges in my district. I know there are readers from FC defense forums, who would be surprised (myself included) to read someone post that FC defense "should be" in a state court ...(given recent BK rulings).

[justbroke]

Thanks for reply.
I'm not sure why you assumed I don't want an atty.?

Because you specifically asked how you should move it to State court. If you filed your bankruptcy through an attorney, you wouldn't need to worry about the way to get it in non-bankruptcy court. Additionally, you asked the "procedure" and you specifically "searched for rules".

Yes, venue is always a tool in every practitioner's toolchest. Some find that the Bankruptcy court is much easier to deal with and easier since, unlike state court foreclosure actions, the bankruptcy court will look at standing as a genuine issue of fact. However, I have read only one case in which a person actually won title to the home in a bankruptcy court action challenging the ownership of the note.

I know there are readers from FC defense forums, who would be surprised (myself included) to read someone post that FC defense "should be" in a state court ...(given recent BK rulings).

Which recent BK rulings? Remember, when the automatic stay is gone, it's gone. There is no free house. The Foreclosure Defense forums are about strategy to just "stay" -- or prolong -- foreclosure. There really is nothing in the Bankruptcy court for the overwhelming majority of the "show me the note" strategists.

We'd be happy to read citations of BK ruling where the Judge said more than the stay is not lifted... and one with prejudice. I haven't seen all these rulings which you elude too as being recent and from the BK courts. Please indulge us.