Foreclosure timeline after motion for relief from stay is granted - Question

[GAWildcat]

My wife and I filed for Chapter 7 at the end of June to prevent a July 3rd foreclosure and to obviously get rid of our debts (Georgia). Our mortgage company (GMAC) requested a hearing for relief from the stay right after our 341 meeting at the end of July. The hearing was scheduled for August 21st and we told our attorney that we would not be contesting it. As of today, we have not heard a thing about how the meeting went. We assume that the stay was lifted because it was not contested. If the stay was lifted, GMAC would have to advertise in our local paper by September 5th (first of four ads) for an early October foreclosure.

My question is this: Since the last foreclosure was halted by the bankruptcy filing, does our mortgage company need to start the entire process over (including the demand letter) or can they just put the notice in the paper next week and then foreclose in October? I ask this because if they are required to send another demand letter and give us the 10 days to respond/pay, there is no way they can advertise the foreclosure in September - the 10 day window would eliminate the first day of September on which they are required to advertise the foreclosure.

The point of this question was to see if my wife and I would have an extra month to move or not. Thanks for your help!

[justbroke]

I'm not sure what the process for Georgia is. Generally speaking, the bankruptcy only "stayed" the foreclosure sale. in most States, a stay of the foreclosure sale only resets part of the steps a lender needs to take to continue the sale. For example, in Florida, the lender does not need to refile the foreclosure action, but may need to re-advertise the foreclosure sale. If your foreclosure is based on a Power of Sale clause in a Deed of Trust, then it too may also need re-advertisement for the sale.

I'm guessing, but I think the Georgia requires the same 4 weeks of advertising. I do not believe they require a re-notice (Acceleration Notice or "Notice of Demand") in order to set a new sale date, but they must also give you 30-days notice of the sale date. Since the sales only happen once a month in Georgia, on the first Tuesday, that means there is no way they can make a September 4th sale date. It is possible that they could make the October 2nd sale date, but they'd need to give you notice within the several days (by 9/3).

[GAWildcat]

I'm not sure what the process for Georgia is. Generally speaking, the bankruptcy only "stayed" the foreclosure sale. in most States, a stay of the foreclosure sale only resets part of the steps a lender needs to take to continue the sale. For example, in Florida, the lender does not need to refile the foreclosure action, but may need to re-advertise the foreclosure sale. If your foreclosure is based on a Power of Sale clause in a Deed of Trust, then it too may also need re-advertisement for the sale.

I'm guessing, but I think the Georgia requires the same 4 weeks of advertising. I do not believe they require a re-notice (Acceleration Notice or "Notice of Demand") in order to set a new sale date, but they must also give you 30-days notice of the sale date. Since the sales only happen once a month in Georgia, on the first Tuesday, that means there is no way they can make a September 4th sale date. It is possible that they could make the October 2nd sale date, but they'd need to give you notice within the several days (by 9/3).

Thank you justbroke. Your assumptions about the GA process are correct (from what I have read). The attorney that GMAC is using has been very aggressive to this point and I would bet they are doing everything possible to get it done. It sounds like if we don't hear anything from then prior to next Monday (the 3rd), we may be in the house until November. Actually, since Monday is a holiday, I guess they would have to get the notice to us by this Saturday for us to have it 30 days prior to October 2nd. 3 more days of peeking in the mailbox to go...

Thanks again!

[HHM]

Unfortunately, that question is too specific to your state to be answered with any sort of certainty here. As JB points out, "in general" once the BK stay is lifted, the foreclosure picks up where it left off. Very rarely does the foreclosure need to start over from the beginning. When publication is part of the process, generally, if the BK was filed "during" the publication process, then once the stay is lifted, the foreclosure will need to re-publish. If the BK was filed after competing the publication process, generally, all that needs to happen is to reset the sale date. The only time the bank would need to start from the beginning is if the Notice of Default (the 1st "official" foreclosure document) becomes outdated (when it becomes out dated is a matter of state law.).

[justbroke]

I have experience the "where left off" on one of my surrendered investment properties. As HHM writes, it depends where in the process it left off. Since that particular property was done with a Deed of Trust and the foreclosure was going to be under the exercise of a Power of Sale, it left off exactly where it was. That was... it had already been published and I had preempted the sale by just 3 days. So when the stay was lifted, they could literally just set a new sale date and be done with it. (This was for North Carolina.)

In my particular case, they had some problems with the substitute trustee and other paperwork issues. I didn't even fight the foreclosure, but it took them almost 18 months to foreclose the property due to their lack of... care with the paperwork. Otherwise, they could have just announced a new sale date and could have been done much sooner!

[GAWildcat]

Thanks for the replies guys. We filed BK on 6/27 and the final day for advertising for June was 6/28 (4th ad). I am not sure if it means anything, but technically the advertising process should not have been completed. Do you guys think (your best guess) this means they will have to advertise it one more time or just get a new date and foreclose?

The reason this is so important: We can get into our new house October 1st...meaning prior to the sale at the courthouse, we either have 3 days to move or a month and 3 days to move before the foreclosure date. I guess we will see...

Thanks again.

[HHM]

I doubt they will need to republish. If GA is like my state, you would need to file BK at a specific time during the publication to reset the publication period. otherwise, they just finish the publication, file Motion for Relief from Stay, and then set the sale date once the motion is granted. I would suspect that since you filed a day before the publication was set to end, they can just complete the foreclosure once the BK stay is lifted. Note, unless you faxed them a notice of BK, they would not have been on notice of the BK until about 10 days or so after you filed. So, most likely, they will just set a sale date.

[GAWildcat]

I doubt they will need to republish. If GA is like my state, you would need to file BK at a specific time during the publication to reset the publication period. otherwise, they just finish the publication, file Motion for Relief from Stay, and then set the sale date once the motion is granted. I would suspect that since you filed a day before the publication was set to end, they can just complete the foreclosure once the BK stay is lifted. Note, unless you faxed them a notice of BK, they would not have been on notice of the BK until about 10 days or so after you filed. So, most likely, they will just set a sale date.

Am I correct in assuming that the trustee/judge who heard the motion to lift the stay request would have to file the results on Pacer since it is related to my Chapter 7? If so, nothing has been posted yet and I should be safe from the 9/4 courthouse sale date. 10/2 is looking like it is the most likely date for the sale. Thanks.

[justbroke]

Yes. There should be an Order on Motion for Relief from the Automatic Stay in PACER. If it's not on the docket, then there may not have been a hearing, your District uses "Negative Noticing", and the movant (the lender) never filed a proposed order with the court. It may be listed in PACER's docket as simply an "Order", a "Generic Order", or with the full name as I listed earlier. There could have been a hearing on the matter, and there may be an "oral" order, although Judges like to have them put on paper. The oral orders may be listed as "Hearing Held" and you'd have to look at the text from that.

Just to keep you up to date, the stay may also be lifted when the case is discharged. I can't say what your lender is doing or not doing, but if there was no hearing, and no Order on the docket, then the stay was not lifted. This doesn't mean that they won't "mess up" and try to set a new sale date.

Personally, I would already be packed, living out of boxes, and just prepare to move within 30 days. If you stay longer, no harm comes from packing and being ready to go!