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[CAMFFG] URGENT!! Effect of second notice of sale
this response by Mark Jessee suggests that there still may be action
against the lender for damages.
see the Williams case regarding annulment (i hope i have attached the right
Williams case).
but i agree that action against the BFP that got the VZ order for relief is
kaput.
from Williams...
Thus, we remand to the bankruptcy court to decide whether Williams is
entitled to 362(h) damages
in this case. While it is not before us for decision, we note that it is
far from clear that annulment of the
stay should preclude damages for violation of the stay before the
annulment: the principle that one may be
held in contempt notwithstanding the reversal of the order violated, Worden
v. Searls, 121 U.S. 14, 7
S.Ct. 814, 30 L.Ed. 853 (1887); U.S. v. United Mine Workers of America, 330
U.S. 258, 294, 67 S.Ct.
677, 91 L.Ed. 884 (1947), or even its unconstitutionality, Walker v. City
of Birmingham, 388 U.S. 307, 87
S.Ct. 1824, 18 L.Ed.2d 1210 (1967), seems an appropriate analogy.
On Wed, Mar 6, 2013 at 4:42 PM, Mark Jessee wrote:
> **
>
>
>
> The buyer sought annulment of the stay for the specific purpose of being
> able to record the trustee's deed upon sale. The form order may not
> perfectly encapsulate that language, but it annulled the stay as to the BFP
> at the foreclosure sale. I do not see how the bankruptcy court's order
> granting relief could some how still violate the stay, just because the
> lender was not involved in the motion. The lender attempting to cancel the
> foreclosure sale is a contractual issue between the buyer and the
> foreclosing lender in my analysis, not something the debtor can seize upon
> to his advantage.
>
> I have that exact situation going on in one of my creditor cases, where I
> represented the lender. Prior Chapter 13 case ordered dismissed at
> confirmation hearing for its lack of feasability. Order dismissing case
> entered on 1/31/13. Postponed foreclosure sale date 2/1/13 at 1:30 p.m.
> Debtor filed new 13 at 1:06 p.m. on 2/1/13, but did not provide notice of
> the filing until 1:56 p.m.. Sale occurred to 3rd party BFP at 1:30 p.m.
> Lender actually wanted to unwind the sale and renotice sale instead of
> pursuing retroactive annulment of the stay. I promptly filed a motion for
> relief on bad faith filing grounds, seeking to renotice and sell the
> property. Case was dismissed for failure to file schedules, statements and
> plan prior to hearing on the relief from stay motion. A couple days later
> the purchaser filed a motion for relief from stay seeking retroactive
> annulment in order to record the trustee's deed upon sale. See In Re McGree
> Case no 2:13-12793-NB if you want to review the motion and points and
> authorities. The buyer does not really address whether it has standing to
> bring the motion for relief without the lender. I think it has standing. As
> long as the lender does not renotice and sell the property at foreclosure
> before relief is granted to the buyer at the first foreclosure sale then I
> believe a recorded trustee's deed upon sale to the buyer at the first
> foreclosure sale conveys clear title if recorded after retroactive
> annulment of the stay is granted to the buyer.
>
> Mark Jessee
>
> --- In cdcbaa@yahoogroups.com, Giovanni Orantes wrote:
> >
> > True, but the facts present a more complicated question. Here, at least
> > the purchaser got retroactive stay relief and in its motion it asked that
> > the Court validate the foreclosure sale (though the order doesn't say
> that
> > in those words - it actually says that the Movant may proceed with
> > foreclosure and to obtain possession and that the stay is lifted
> > retroactively as to the Movant). Is that enough or does the fact that the
> > seller didn't get retroactive stay relief render the sale violative of
> the
> > stay? Does the fact that the seller cancelled the sale and returned the
> > money soon after the bankruptcy filing mean that there was no sale to
> bless
> > retroactively?
> >
> >
> >
> > --
> > Giovanni Orantes, Esq.
> > Certified Bankruptcy Specialist*
> > Orantes Law Firm, P.C.
> > 3435 Wilshire Blvd. Suite 1980
> > Los Angeles, CA 90010
> > Tel: (213) 389-4362
> > Fax: (877) 789-5776
> > e-mail: go@...
>
> > website: www.gobklaw.com
> >
> > *Board Certified - Business Bankruptcy Law - American Board of
> Certification
> > *Board Certified - Consumer Bankruptcy Law - American Board of
> Certification
> >
>
>
>
this response by Mark Jessee suggests that there still may be action against the lender for damages.see the Williams case regarding annulment (i hope i have attached the right Williams case).
but i agree that action against the BFP that got the VZ order for relief is kaput.from Williams...Thus, we remand to the bankruptcy court to decide whether Williams is entitled to 362(h) damages
in this case. While it is not before us for decision, we note that it is far from clear that annulment of thestay should preclude damages for violation of the stay before the annulment: the principle that one may be
held in contempt notwithstanding the reversal of the order violated, Worden v. Searls, 121 U.S. 14, 7S.Ct. 814, 30 L.Ed. 853 (1887); U.S. v. United Mine Workers of America, 330 U.S. 258, 294, 67 S.Ct.
677, 91 L.Ed. 884 (1947), or even its unconstitutionality, Walker v. City of Birmingham, 388 U.S. 307, 87S.Ct. 1824, 18 L.Ed.2d 1210 (1967), seems an appropriate analogy.
On Wed, Mar 6, 2013 at 4:42 PM, Mark Jessee < wrote:
The buyer sought annulment of the stay for the specific purpose of being able to record the trustee's deed upon sale. The form order may not perfectly encapsulate that language, but it annulled the stay as to the BFP at the foreclosure sale. I do not see how the bankruptcy court's order granting relief could some how still violate the stay, just because the lender was not involved in the motion. The lender attempting to cancel the foreclosure sale is a contractual issue between the buyer and the foreclosing lender in my analysis, not something the debtor can seize upon to his advantage.
I have that exact situation going on in one of my creditor cases, where I represented the lender. Prior Chapter 13 case ordered dismissed at confirmation hearing for its lack of feasability. Order dismissing case entered on 1/31/13. Postponed foreclosure sale date 2/1/13 at 1:30 p.m. Debtor filed new 13 at 1:06 p.m. on 2/1/13, but did not provide notice of the filing until 1:56 p.m.. Sale occurred to 3rd party BFP at 1:30 p.m. Lender actually wanted to unwind the sale and renotice sale instead of pursuing retroactive annulment of the stay. I promptly filed a motion for relief on bad faith filing grounds, seeking to renotice and sell the property. Case was dismissed for failure to file schedules, statements and plan prior to hearing on the relief from stay motion. A couple days later the purchaser filed a motion for relief from stay seeking retroactive annulment in order to record the trustee's deed upon sale. See In Re McGree Case no 2:13-12793-NB if you want to review the motion and points and authorities. The buyer does not really address whether it has standing to bring the motion for relief without the lender. I think it has standing. As long as the lender does not renotice and sell the property at foreclosure before relief is granted to the buyer at the first foreclosure sale then I believe a recorded trustee's deed upon sale to the buyer at the first foreclosure sale conveys clear title if recorded after retroactive annulment of the stay is granted to the buyer.
Mark Jessee
@yahoogroups.com, Giovanni Orantes wrote:
>
> True, but the facts present a more complicated question. Here, at least
> the purchaser got retroactive stay relief and in its motion it asked that
> the Court validate the foreclosure sale (though the order doesn't say that
> in those words - it actually says that the Movant may proceed with
> foreclosure and to obtain possession and that the stay is lifted
> retroactively as to the Movant). Is that enough or does the fact that the
> seller didn't get retroactive stay relief render the sale violative of the
> stay? Does the fact that the seller cancelled the sale and returned the
> money soon after the bankruptcy filing mean that there was no sale to bless
> retroactively?
>
>
>
> --
> Giovanni Orantes, Esq.
> Certified Bankruptcy Specialist*
> Orantes Law Firm, P.C.
> 3435 Wilshire Blvd. Suite 1980
> Los Angeles, CA 90010
> Tel: (213) 389-4362
> Fax: (877) 789-5776
> e-mail: go@...
> website: www.gobklaw.com
>
> *Board Certified - Business Bankruptcy Law - American Board of Certification
> *Board Certified - Consumer Bankruptcy Law - American Board of Certification
>
X-Attachment-Id: f_hdz74m6p0
name="Williams In re 323 BR 691 and Related Cases research 20110801.pdf"
filename="Williams In re 323 BR 691 and Related Cases research 20110801.pdf"
X-Attachment-Id: f_hdz74m6p0
The post was migrated from Yahoo.
The buyer sought annulment of the stay for the specific purpose of being able to record the trustee's deed upon sale. The form order may not perfectly encapsulate that language, but it annulled the stay as to the BFP at the foreclosure sale. I do not see how the bankruptcy court's order granting relief could some how still violate the stay, just because the lender was not involved in the motion. The lender attempting to cancel the foreclosure sale is a contractual issue between the buyer and the foreclosing lender in my analysis, not something the debtor can seize upon to his advantage.
I have that exact situation going on in one of my creditor cases, where I represented the lender. Prior Chapter 13 case ordered dismissed at confirmation hearing for its lack of feasability. Order dismissing case entered on 1/31/13. Postponed foreclosure sale date 2/1/13 at 1:30 p.m. Debtor filed new 13 at 1:06 p.m. on 2/1/13, but did not provide notice of the filing until 1:56 p.m.. Sale occurred to 3rd party BFP at 1:30 p.m. Lender actually wanted to unwind the sale and renotice sale instead of pursuing retroactive annulment of the stay. I promptly filed a motion for relief on bad faith filing grounds, seeking to renotice and sell the property. Case was dismissed for failure to file schedules, statements and plan prior to hearing on the relief from stay motion. A couple days later the purchaser filed a motion for relief from stay seeking retroactive annulment in order to record the trustee's deed upon sale. See In Re McGree Case no 2:13-12793-NB if you want to review the motion and points and authorities. The buyer does not really address whether it has standing to bring the motion for relief without the lender. I think it has standing. As long as the lender does not renotice and sell the property at foreclosure before relief is granted to the buyer at the first foreclosure sale then I believe a recorded trustee's deed upon sale to the buyer at the first foreclosure sale conveys clear title if recorded after retroactive annulment of the stay is granted to the buyer.
Mark Jessee
>
> True, but the facts present a more complicated question. Here, at least
> the purchaser got retroactive stay relief and in its motion it asked that
> the Court validate the foreclosure sale (though the order doesn't say that
> in those words - it actually says that the Movant may proceed with
> foreclosure and to obtain possession and that the stay is lifted
> retroactively as to the Movant). Is that enough or does the fact that the
> seller didn't get retroactive stay relief render the sale violative of the
> stay? Does the fact that the seller cancelled the sale and returned the
> money soon after the bankruptcy filing mean that there was no sale to bless
> retroactively?
>
>
>
> --
> Giovanni Orantes, Esq.
> Certified Bankruptcy Specialist*
> Orantes Law Firm, P.C.
> 3435 Wilshire Blvd. Suite 1980
> Los Angeles, CA 90010
> Tel: (213) 389-4362
> Fax: (877) 789-5776
> e-mail: go@...
> website: www.gobklaw.com
>
> *Board Certified - Business Bankruptcy Law - American Board of Certification
> *Board Certified - Consumer Bankruptcy Law - American Board of Certification
>
The post was migrated from Yahoo.
True, but the facts present a more complicated question. Here, at least
the purchaser got retroactive stay relief and in its motion it asked that
the Court validate the foreclosure sale (though the order doesn't say that
in those words - it actually says that the Movant may proceed with
foreclosure and to obtain possession and that the stay is lifted
retroactively as to the Movant). Is that enough or does the fact that the
seller didn't get retroactive stay relief render the sale violative of the
stay? Does the fact that the seller cancelled the sale and returned the
money soon after the bankruptcy filing mean that there was no sale to bless
retroactively?
Giovanni Orantes, Esq.
Certified Bankruptcy Specialist*
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
*Board Certified - Business Bankruptcy Law - American Board of Certification
*Board Certified - Consumer Bankruptcy Law - American Board of Certification
True, but the facts present a more complicated question.ion it asked that the Court validate the foreclosure sale (though the order doesn't say that in those words - it actually says that the Movant may proceed with foreclosure and to obtain possessionand that the stay is lifted retroactively as to the Movant). Is that enough or does the fact that the seller didn't get retroactive stay relief render the sale violative of the stay? Does the fact that the seller cancelled the sale and returned the money soon after the bankruptcy filing mean that there was no sale to bless retroactively?
-- Giovanni Orantes, Esq.Certified Bankruptcy Specialist* Orantes Law Firm, P.C.3435 Wilshire Blvd. Suite 1980Los Angeles, CA 90010Tel: (213) 389-4362Fax: (877) 789-5776
e-mail: go@gobklaw.comwebsite: www.gobklaw.com*Board Certified - Business Bankruptcy Law - American Board of Certification
*Board Certified - Consumer Bankruptcy Law - American Board of Certification
The post was migrated from Yahoo.