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Unlawful Detainer v. Auto Stay under 11 USC 362(c)4 -
If there are three different case numbers, all pending within the last
year, then there is no automatic stay. When 362 refers to pending cases it
means any case under Title 11 except for Chapter 7 cases which were
dismissed for 707(b) reasons. If the 3rd case is a Chapter 13 and the
Debtor was married, there would have been a 1301 stay.
Be sure to list this lawsuit against the bank as an asset so there is no
judicial estoppel argument later.
Sincerely,
Michael Avanesian
Law Offices of David A. Tilem
www.tilemlaw.com
818-507-6000
On Sun, Jun 29, 2014 at 11:52 AM, legalsos4u@yahoo.com [cdcbaa] wrote:
>
>
> Dear List mates:
>
> I was just brought into a case to help stop an unlawful detainer order
> from going into effect. Here's a shortened factual background:
>
> * Debtor entered into a pre-modification program with bank (trial payments
> and promise the world);
>
> * Bank then proceeded with foreclosure, and debtor filed suit against bank
> in superior court (pending);
>
> * Debtor filed Ch. 13 on 2/26/14 with the help of some "BK preparer in
> Washington (found her in Google search), which was dismissed because of
> failure to timely file schedules;
>
> * Debtor filed Ch. 7 on 5/22/14 with help of some "BK prepared in Florida
> (found her in google search), which was dismissed because of failure to
> timely file schedules;
>
> * Debtor filed Ch. 7 on 6/19/14 and is currently pending.
>
> * Also on 6/19/14, attorney in unlawful detainer case convinces judge to
> sign order despite their knowledge of earlier in the day filing of the Ch.
> 7 bankruptcy, arguing (without defendant present and no attorney) that 11
> USC 3629 (c)4) gives creditor right to take action on property, as follows:
>
>
> (c) Except as provided in subsections (d), (e), (f), and (h) of this
> section
> (4)
> (A)
> (i) if a single or joint case is filed by or against a debtor who is an
> individual under this title, and if 2 or more single or joint cases of the
> debtor were pending within the previous year but were dismissed, other than
> a case refiled under a chapter other than chapter 7 after dismissal under
> section 707 (b)
> ,
> the stay under subsection (a) shall not go into effect upon the filing of
> the later case; and
> (ii) on request of a party in interest, the court shall promptly enter an
> order confirming that no stay is in effect;
> It seems my only hope to stay the unlawful detainer so the matter is
> consolidated with the foreclosure issue (and debtor not forced out of her
> home), is to argue that she only had one case pending, not two, as defined
> under this provision, as the other was a Ch. 13 and, axiomatically, not
> applicable.
> Thoughts? In put? I just received the case late Friday to make an
> appearance for the attorney for ex parte hearing 8:30 am Monday.
> In advance I Thank you for taking time on your Sunday!
>
> Stephen M. Stern, Esq.
> Law Office of Stephen M. Stern, PC
>
>
>
>
If there are three different case numbers, all pending within the last year, then there is no automatic stay. When 362 refers to pending cases it means any case under Title 11 except for Chapter 7 cases which were dismissed for 707(b) reasons. If the 3rd case is a Chapter 13 and the Debtor was married, there would have been a 1301 stay.
Be sure to list this lawsuit against the bank as an asset so there is no judicial estoppel argument later.Sincerely,
Michael AvanesianLaw Offices of David A. Tilemwww.ti
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