Postpetition rights of Lender re: mistaken prepetitio=

Yahoo Bot · Mon Dec 12, 2011 9:30 am

Where is the lien in Mark's case? It no longer exists unless the lender can get
equitable relief from a court
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, Suite 640
Woodland Hills, California 91364-2226
Telephone: (818) 226-1205
Facsimile : (818) 226-1213
THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND
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BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND
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THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Mon, December 12, 2011 9:13:48 AM
Subject: [cdcbaa] Re: Postpetition rights of Lender re: mistaken prepetition
trust deed reconveyance?
Mark, this looks like a great article for the newsletter. I would like to get
it out around mid-January. Stella is already doing one. 800-1,000 words. I
read a case years ago where Ahart ruled that an unrecorded td could be recorded
post-discharge. Jon
>
> If the loan is deemed to be an unrecorded and unperfected mortgage which the
>mortgage company had the right to record, the Chapter 7 discharge will not get
>rid of the lien. The mortgage company will have the right after the discharge to
>record the lien and the lien will pass through bankruptcy and the Chapter 7
>discharge will have no effect. I found out this recently and was surprised
>because I believed that unperfected liens were discharged. I filed a chapter 7
>thinking that I could discharge as to an unperfected mortgage. I found out
>about it and had to convert to chapter 13 to get rid of the unperfected
>mortgage, where according to the 9th Circuit BAP, the debtor can use Section 544
>- the trustee strong arm powers - to avoid the lien. Here are the cases on
>point. Good luck. Let us know how it turns out.
>
> Stella
>
Mark
>T. Jessee
> Sent: Saturday, December 10, 2011 10:40 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition
>trust deed reconveyance?
>
> Like I said the allegedly mistaken reconveyance from the junior lien holder was
>recorded over 5 years before the Chapter 7 was filed. The current property value
>is less than is owed on the first trust deed and there were no new liens
>recorded by anyone after the reconveyance. The chapter 7 trustee is not going to
>administer the estate since there is no equity above what is owed the first
>trust deed, let alone after exemptions and costs of sale. Thus any potential
>lien avoidance powers of the trustee are not at issue. The debtor had no idea
>the 2nd trust deed had been reconveyed and continued to make payments towards
>the loan until shortly prior to the bankruptcy being filed, when the
>reconveyance was discovered. The lender was listed as an unsecured creditor with
>an explanation in Schedule F and the discharge is still at least a month away.
>From what I have learned, apparently the lender was trying to substitute
>themselves in as the trustee of the deed of trust and instead issued a full
>reconveyance. It is my understanding this happened regarding numerous loans it
>issued. I learned yesterday that the lender after receiving notice of the>bankruptcy filing prepared and recorded postpetition a cancellation of the>reconveyance in violation of bankruptcy code 362(a)(4), so I will have the
>pleasure of addressing that matter too. Said cancellation was signed by the same
>officer that signed the reconveyance 5 1/2 years ago.
>
>
> The first question is whether or not the lender currently still possesses an
>interest in the collateral after the full reconveyance was allegedly recorded in
>error? If the reconveyance is void because it was issued in error, then the
>lender still has an interest. If the reconveyance is merely voidable then I am
>not sure it currently holds an interest in the property. The California Court of
>Appeal found in DULEY V. WESTINGHOUSE ELECTRIC CORPORATION 97 Cal.App.3d 430
>(1979) that a mistakenly recorded reconveyance is voidable, but I need to>research the issue a bit more to be confident of the current state of CA law. I
>found bankruptcy cases relating to state laws other than CA finding such
>reconveyances to be void rather than voidable.
>
>
> Does CCP 338(d) 3 year statute of limitations apply? As Ken Schwartz pointed
>out CCP 338(d) provides a 3 year statute of limitation for fraud or mistake.
>Without yet delving into research on it, I wonder whether it is applicable as
>the chapter it falls under is for actions other than for the recovery of real
>property? However, since CCP 338(d) includes slander of title and actions to
>challenge certain tax liens, on the surface it seems reasonable to conclude CCP
>338(d) would include reconveyances. The question again comes back to whether
>or not the lender currently still possesses an interest in the collateral after
>the full reconveyance was recorded in error? If the allegedly mistaken
>reconveyance is voidable, CCP 338(d) would appear to time bar any action by
>the lender as the facts where known to the lender all along (even if it did not
>realize the consequences of its action). The clock would start ticking the>moment the reconveyance was recorded, not when the lender realized the legal
>ramifications of its reconveyance of title to the debtor. On the other hand, if
>DULEY is not the current state of the law and the allegedly mistaken
>reconveyance is void I do not think the clock under CCP 338(d) ever starts
>ticking.
>
> If the reconveyance is voidable as set forth in DULEY and assuming CCP >applies, then I think the lender is time barred from pursuing a court order
>voiding the reconveyance in accords with CA Civil Code 3412. If the
>reconveyance is void I do not see anything in 524(a) preventing the lender
>from pursuing a court order cancelling the reconveyance in accords with CA Civil
>Code 3412.
>
> What if CCP 338(d) does not apply or the 3 year period has not elapsed and
>the reconveyance is voidable? Once the underlying obligation is discharged, can
>the lender revive the lien after discharge by obtaining a court order cancelling
>the reconveyance in accords with CA Civil Code 3412 and be in compliance with
>524(a)(2) discharge injunction? Would that be considered an action to recover
>or offset a debt as a personal liability of the debtor? I could not find any
>case law addressing that issue.
>
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> On Sat, 10 Dec 2011 16:09:40 -0800, "Steven B. Lever" wrote:
>
> Killer find, Kenneth. Steve
>
>Kenneth Jay Schwartz
> Sent: Saturday, December 10, 2011 3:47 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition
>trust deed reconveyance?
>
>
> CCP 338(d) SOL is 3 years for mistake
>
> Kenneth Jay Schwartz, Esq.
> LAW OFFICE OF KENNETH JAY SCHWARTZ
> 21031 Ventura Boulevard, Suite 640
> Woodland Hills, California 91364-2226
> Telephone: (818) 226-1205
> Facsimile : (818) 226-1213
>
>
> THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND
>CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE
>AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL.
>IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT
>RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY>NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW,>DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED.
>IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY.
>THANK YOU.
>
>
>
> _____
>
> To: cdcbaa@yahoogroups.com
> Sent: Sat, December 10, 2011 3:37:43 PM
> Subject: Re: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition
>trust deed reconveyance?
>
>
> Might there also be a 4 year SOL for actions based upon mistake [i.e., even
>without the BK issues, is it too late for the former lender to assert a
>successful cause of action]?
>
> Kenneth Jay Schwartz, Esq.
> LAW OFFICE OF KENNETH JAY SCHWARTZ
> 21031 Ventura Boulevard, Suite 640
> Woodland Hills, California 91364-2226
> Telephone: (818) 226-1205
> Facsimile : (818) 226-1213
>
>
> THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND
>CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE
>AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL.
>IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT
>RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY>NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW,>DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED.
>IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY.
>THANK YOU.
>
>
>
> _____
>
> To: cdcbaa@yahoogroups.com
> Sent: Sat, December 10, 2011 3:08:47 PM
> Subject: RE: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition
>trust deed reconveyance?
>
>
> Mark:
>
> Were missing some facts here I think: what position was the reconveyed deed
>of trust before it was reconveyed? What are the timelines, e.g., is the
>bankruptcy filed yet, is it over? I take it no cancelation has been recorded
>yet. Also, what are the values of the property, the balances on the deeds of
>trust? Im just not getting a complete picture here, although it sure seems
>like an interesting problem.
>
> Speaking in general: There are no relief from stay issues if they just wait
>for the bankruptcy to be over. Then the discharge injunction applies as to
>collecting the debt, but not on the enforcement of its property interest in the
>collateral. That can all be addressed in state court. The collateral is no
>longer property of the estate.
>
>
> If there is equity in the property sufficient to fight with them, I>you can get a great deal for your client even if you cannot completely
>capitalize on their mistake. That depends to some degree whether the
>reconveyance was covered by title insurance.
>
> Steve Lever
>
Mark
>Jessee
> Sent: Friday, December 09, 2011 11:40 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust
>deed reconveyance?
>
>
> Lender (acting as both trustee and beneficiary of the deed of trust) recorded a
>full reconveyance of security interest 5 years prior to chap 7 petition being
>filed. There were no subsequent recorded liens. Postpetition, lender claims this
>reconveyance was executed and recorded in error. The property is underwater
>related to the first trust deed so a trustee is not interested in administering
>it. While recording a cancellation of the full reconveyance pursuant to CA Civil
>Code 3412 and Duley v. Westinghouse Electric Corp. 97 Cal.App.3d 430 (1979)
>may have been an available option prepetition, doing so postpetition violates
>bankruptcy code 362(a)(4) and the 362(b)(3) exception does not apply. Does
>the lender have an equitable remedy under the bankruptcy code to somehow cancel
>the reconveyance and revive the erstwhile unenforceable trust deed security
>interest?
>
>
> Can the lender successfully file an adversary complaint or a motion for relief
>from the automatic stay allowing it to seek an order in state court, allowing it
>to record a cancellation of the full reconveyance based upon equitable grounds?
>I cannot find any bankruptcy case law addressing the issue of a creditor's>postpetition right to seek cancellation of a prepetition mistakenly recorded
>reconveyance in a no asset case.
>
>
> Mark Jessee
> _____
>
> No virus found in this message.
> Checked by AVG - www.avg.com
> Version: 10.0.1415 / Virus Database: 2102/4071 - Release Date: 12/09/11
> _____
>
> No virus found in this message.
> Checked by AVG - www.avg.com
> Version: 10.0.1415 / Virus Database: 2102/4072 - Release Date: 12/10/11
>
Where is the lien in Mark's case? It no longer exists unless the lender can get equitable relief from a courtKenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, Suite 640Woodland Hills, California 91364-2226Telephone: (818) 226-1205Facsimile : (818) 226-1213THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED
THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.From: jonhayes6666 <Jhayes@polarisnet.net>To: cdcbaa@yahoogroups.comSent: Mon, December 12, 2011 9:13:48 AMSubject: [cdcbaa] Re: Postpetition rights of Lender re: mistaken prepetition trust deed reconveyance?

Mark, this looks like a great article for the newsletter. I would like to get it out around mid-January. Stella is already doing one. 800-1,000 words. I read a case years ago where Ahart ruled that an unrecorded td could be recorded post-discharge. Jon
et"_blank" href"mailto:cdcbaa%40yahoogroups.com">cdcbaa@yahoogroups.com, "Stella Havkin" <havkinlaw@...> wrote:
>
> If the loan is deemed to be an unrecorded and unperfected mortgage which the mortgage company had the right to record, the Chapter 7 discharge will not get rid of the lien. The mortgage company will have the right after the discharge to record the lien and the lien will pass through bankruptcy and the Chapter 7 discharge will have no effect. I found out this recently and was surprised because I believed that unperfected liens were discharged. I filed a chapter 7 thinking that I could discharge as to an unperfected mortgage. I found out about it and had to convert to chapter 13 to get rid of the unperfected mortgage, where according to the 9th Circuit BAP, the debtor can use Section 544 - the trustee strong arm powers - to avoid the lien. Here are the cases on point. Good luck. Let us know how it turns out.
>
> Stella
>
target"_blank" href"mailto:cdcbaa%40yahoogroups.com">cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Mark T. Jessee
> Sent: Saturday, December 10, 2011 10:40 PM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust deed reconveyance?
>
> Like I said the allegedly mistaken reconveyance from the junior lien holder was recorded over 5 years before the Chapter 7 was filed. The current property value is less than is owed on the first trust deed and there were no new liens recorded by anyone after the reconveyance. The chapter 7 trustee is not going to administer the estate since there is no equity above what is owed the first trust deed, let alone after exemptions and costs of sale. Thus any potential lien avoidance powers of the trustee are not at issue. The debtor had no idea the 2nd trust deed had been reconveyed and continued to make payments towards the loan until shortly prior to the bankruptcy being filed, when the reconveyance was discovered. The lender was listed as an unsecured creditor with an explanation in Schedule F and the discharge is still at least a month away. From what I have learned, apparently the lender was trying to substitute themselves in as the trustee of the
deed of trust and instead issued a full reconveyance. It is my understanding this happened regarding numerous loans it issued. I learned yesterday that the lender after receiving notice of the bankruptcy filing prepared and recorded postpetition a cancellation of the reconveyance in violation of bankruptcy code 362(a)(4), so I will have the pleasure of addressing that matter too. Said cancellation was signed by the same officer that signed the reconveyance 5 1/2 years ago.
>
> The first question is whether or not the lender currently still possesses an interest in the collateral after the full reconveyance was allegedly recorded in error? If the reconveyance is void because it was issued in error, then the lender still has an interest. If the reconveyance is merely voidable then I am not sure it currently holds an interest in the property. The California Court of Appeal found in DULEY V. WESTINGHOUSE ELECTRIC CORPORATION 97 Cal.App.3d 430 (1979) that a mistakenly recorded reconveyance is voidable, but I need to research the issue a bit more to be confident of the current state of CA law. I found bankruptcy cases relating to state laws other than CA finding such reconveyances to be void rather than voidable.
>
> Does CCP 338(d) 3 year statute of limitations apply? As Ken Schwartz pointed out CCP 338(d) provides a 3 year statute of limitation for fraud or mistake. Without yet delving into research on it, I wonder whether it is applicable as the chapter it falls under is for actions other than for the recovery of real property? However, since CCP liens, on the surface it seems reasonable to conclude CCP 338(d) would include reconveyances. The question again comes back to whether or not the lender currently still possesses an interest in the collateral after the full reconveyance was recorded in error? If the allegedly mistaken reconveyance is voidable, CCP 338(d) would appear to time bar any action by the lender as the facts where known to the lender all along (even if it did not realize the consequences of its action). The clock would start ticking the moment the
reconveyance was recorded, not when the lender realized the legal ramifications of its reconveyance of title to the debtor. On the other hand, if DULEY is not the current state of the law and the allegedly mistaken reconveyance is void I do not think the clock under CCP 338(d) ever starts ticking.
>
> If the reconveyance is voidable as set forth in DULEY and assuming CCP 338(d) applies, then I think the lender is time barred from pursuing a court order voiding the reconveyance in accords with CA Civil Code 3412. If the reconveyance is void I do not see anything in g the reconveyance in accords with CA Civil Code 3412.
>
> What if CCP 338(d) does not apply or the 3 year period has not elapsed and the reconveyance is voidable? Once the underlying obligation is discharged, can the lender revive the lien after discharge by obtaining a court order cancelling the reconveyance in accords with CA Civil Code injunction? Would that be considered an action to recover or offset a debt as a personal liability of the debtor? I could not find any case law addressing that issue.
>
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> On Sat, 10 Dec 2011 16:09:40 -0800, "Steven B. Lever" <sblever@...> wrote:
>
> Killer find, Kenneth. Steve
>
target"_blank" href"mailto:cdcbaa%40yahoogroups.com">cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Kenneth Jay Schwartz
> Sent: Saturday, December 10, 2011 3:47 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust deed reconveyance?
>
>
> CCP 338(d) SOL is 3 years for mistake
>
> Kenneth Jay Schwartz, Esq.
> LAW OFFICE OF KENNETH JAY SCHWARTZ
> 21031 Ventura Boulevard, Suite 640
> Woodland Hills, California 91364-2226
> Telephone: (818) 226-1205
> Facsimile : (818) 226-1213
>
>
> THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.
>
>
>
> _____
>
> To: cdcbaa@yahoogroups.com
> Sent: Sat, December 10, 2011 3:37:43 PM
> Subject: Re: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust deed reconveyance?
>
>
> Might there also be a 4 year SOL for actions based upon mistake [i.e., even without the BK issues, is it too late for the former lender to assert a successful cause of action]?
>
> Kenneth Jay Schwartz, Esq.
> LAW OFFICE OF KENNETH JAY SCHWARTZ
> 21031 Ventura Boulevard, Suite 640
> Woodland Hills, California 91364-2226
> Telephone: (818) 226-1205
> Facsimile : (818) 226-1213
>
>
> THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.
>
>
>
> _____
>
> To: cdcbaa@yahoogroups.com
> Sent: Sat, December 10, 2011 3:08:47 PM
> Subject: RE: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust deed reconveyance?
>
>
> Mark:
>
> Were missing some facts here I think: what position was the reconveyed deed of trust before it was reconveyed? What are the timelines, e.g., is the bankruptcy filed yet, is it over? I take it no cancelation has been recorded yet. Also, what are the values of the property, the balances on the deeds of trust? Im just not getting a complete picture here, although it sure seems like an interesting problem.
>
> Speaking in general: There are no relief from stay issues if they just wait for the bankruptcy to be over. Then the discharge injunction applies as to collecting the debt, but not on the enforcement of its property interest in the collateral. That can all be addressed in state court. The collateral is no longer property of the estate.
>
> If there is equity in the property sufficient to fight with them, If you cannot completely capitalize on their mistake. That depends to some degree whether the reconveyance was covered by title insurance.
>
> Steve Lever
>
target"_blank" href"mailto:cdcbaa%40yahoogroups.com">cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Mark Jessee
> Sent: Friday, December 09, 2011 11:40 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust deed reconveyance?
>
>
> Lender (acting as both trustee and beneficiary of the deed of trust) recorded a full reconveyance of security interest 5 years prior to chap 7 petition being filed. There were no subsequent recorded liens. Postpetition, lender claims this reconveyance was executed and recorded in error. The property is underwater related to the first trust deed so a trustee is not interested in administering it. While recording a cancellation of the full reconveyance pursuant to CA Civil Code 3412 and Duley v. Westinghouse Electric Corp. 97 Cal.App.3d 430 (1979) may have been an available option prepetition, doing so postpetition violates bankruptcy code 362(a)(4) and the 362(b)(3) exception does not apply. Does the lender have an equitable remedy under the bankruptcy code to somehow cancel the reconveyance and revive the erstwhile unenforceable trust deed security interest?
>
> Can the lender successfully file an adversary complaint or a motion for relief from the automatic stay allowing it to seek an order in state court, allowing it to record a cancellation of the full reconveyance based upon equitable grounds? I cannot find any bankruptcy case law addressing the issue of a creditor's postpetition right to seek cancellation of a prepetition mistakenly recorded reconveyance in a no asset case.
>
> Mark Jessee
> _____
>
> No virus found in this message.
> Checked by AVG - www.avg.com <http://www.avg.com/>
> Version: 10.0.1415 / Virus Database: 2102/4071 - Release Date: 12/09/11
> _____
>
> No virus found in this message.
> Checked by AVG - www.avg.com <http://www.avg.com/>
> Version: 10.0.1415 / Virus Database: 2102/4072 - Release Date: 12/10/11
>

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