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Stay of NOS
Thanks to everyone. I had not seen a post-petition notice before on cases
where a foreclosure was pending on the filing date. The Peters case Cliff
cites refers to In re Roach, 660 F. 2d 1316, 1318 (9th Cir. 1981); so this
is really long standing. The logic in Roach was that the notice merely
maintains the status quo.
The notice my client received had a bankruptcy disclaimer in the below the
new sale date; followed by the statement "Your lender/servicer is attempting
to collect a debt and any information may be used for that purpose." It was
the last statement that fired me up.
Best regards
Larry Webb
State Bar of California 229344
Central District California
"A Debt Relief Agency"
Check out my Blog
Larry@webbklaw. com
Law Offices of Larry Webb
484 Mobil Ste 43
Camarillo Ca 93010
P 805.987.1400
F 805.987.2866
C 805.750.2150
The post was migrated from Yahoo.
California Civil Code 2924g(c)(2) says that a new Notice of Sale is
required after 365 days.
The case that says it is not a stay violation to give notice of a sale
postponement is Mason-McDuffie v. Peters (9th Cir. 1996) 101 F.3d. 618.
There is a good explanation of both issues in the CEB treatise on
California Mortgages, Deeds of Trust and Foreclosure Litigation.
Clifford Bordeaux
Bordeaux Law, P.C.
790 E. Colorado Boulevard, 9th Floor
Pasadena, CA 91101
T: 626-405-2345 / F: 626-628-1820 E: cliff@bordeauxlaw.com
On Tue, Jan 14, 2014 at 3:54 PM, Jason Wallach wrote:
>
>
> Link, what is the citation for the 12 month period after which re-noticing
> and re-publishing the notice of sale is required?
> Thanks.
> Jason
> Jason Wallach
> jwallach@gladstonemichel.com
>
>
>
> On Jan 14, 2014, at 3:23 PM, Link Schrader wrote:
>
>
>
> I would agree that a routine postponement would not be stayed. However,
> an actual sale would be a violation of the automatic stay and the title
> company knows it. The lender does it this way because if the case is
> dismissed within 12 months of the notice of default, then the sale can
> proceed at the next noticed date. If more than 12 months passes from the
> date of the notice of default, then that notice would have to be recorded
> again.
>
> I would reassure the client that any sale conducted in violation of the
> automatic stay would be void, not just voidable.
>
> *Link Schrader, Attorney*
>
> Law Office of Link W. Schrader
>
> P.O. Box 3723, Tustin, CA 92781
>
> Office: (714) 542-5922; Mobile/Text: (310) 413-6924
> Fax: (310) 878-4158; www.schrader-law.com
>
> ______________________________________________________________________________________________________
>
> *This communication and any files transmitted with it contain information
> which is confidential and may be privileged and exempt from disclosure
> under applicable law. It is intended solely for the use of the individual
> or intended recipient. You are hereby notified that any use, dissemination
> or copying of this communication is strictly prohibited. If you have
> received this communication in error, please notify the sender. Thank you
> for your cooperation.*
>
>
> On Tue, Jan 14, 2014 at 3:12 PM, Larry Webb wrote:
>
>>
>>
>> I have a recent Ch 11 case with a foreclosure stay. Title Company was
>> notified by fax and phone call of the bankruptcy on the day of filing and
>> the original sale date was postponed. Client (very upset) received a
>> post-petition dated notice of sale date of 02/04/2014. I have sent a
>> 362(a)(1) letter to the sale trustee and notified opposing counsel by email
>> who gave me the following reply;
>>
>>
>>
>> *Routine postponements are not stayed and are done by the title company
>> as a matter of course.*
>>
>>
>>
>> My experience is that all notice of sale are stayed, am I missing
>> something? Opposing counsel is a very experienced CH 11 attorney.
>>
>>
>>
>> Best Regards
>>
>>
>>
>>
>>
>> Larry Webb
>>
>> Law Office of Larry Webb
>>
>> 484 Mobil Ste 43
>>
>> Camarillo, Ca 93010
>>
>> 805-987-1400
>>
>> http://www.thousandoaksprobate.com/
>>
>> Email Larry@webbklaw.com
>>
>>
>>
>>
>>
>>
>
> *Link Schrader, Attorney*
> Law Office of Link W. Schrader
> Mail: P.O. Box 3723, Tustin, CA 92781
> Office: 106 W. 4th Street, Suite #308, Santa Ana,
> CA 92701
> Office: (714) 542-5922; Mobile/Text: (310) 413-6924
> San Diego: (619) 952-8342; Fax: (310) 878-4158
> www.schrader-law.com
> ____________________________________________________________
> __________________________________________
> This communication and any files transmitted with it contain information
> which is confidential and may be privileged and exempt from disclosure
> under applicable law. It is intended solely for the use of the individual
> or intended recipient. You are hereby notified that any use, dissemination
> or copying of this communication is strictly prohibited. If you have
> received this communication in error, please notify the sender. Thank you
> for your cooperation.
>
>
>
>
>
California Civil Code 2924g(c)(2) says that a new Notice of Sale is required after 365 days.The case that says it is not a stay violation to give notice of a sale postponement is Mason-McDuffie v. Peters (9th Cir. 1996) 101 F.3d. 618.
There is a good explanation of both issues in the CEB treatise on California Mortgages, Deeds of Trust and Foreclosure Litigation.
Clifford BordeauxBordeaux Law, P.C.790 E. Colorado Boulevard, 9th FloorPasadena, CA 91101T: 626-405-2345 / F: 626-628-1820bordeauxlaw.com
The post was migrated from Yahoo.
charsetndows-1252
Link, what is the citation for the 12 month period after which re-noticing and re-publishing the notice of sale is required?
Thanks.
Jason
Jason Wallach
jwallach@gladstonemichel.com
On Jan 14, 2014, at 3:23 PM, Link Schrader wrote:
>
> I would agree that a routine postponement would not be stayed. However, an actual sale would be a violation of the automatic stay and the title company knows it. The lender does it this way because if the case is dismissed within 12 months of the notice of default, then the sale can proceed at the next noticed date. If more than 12 months passes from the date of the notice of default, then that notice would have to be recorded again.
>
> I would reassure the client that any sale conducted in violation of the automatic stay would be void, not just voidable.
>
> Link Schrader, Attorney
>
> Law Office of Link W. Schrader
>
> P.O. Box 3723, Tustin, CA 92781
>
> Office: (714) 542-5922; Mobile/Text: (310) 413-6924
>
> Fax: (310) 878-4158; www.schrader-law.com
> ______________________________________________________________________________________________________
> This communication and any files transmitted with it contain information which is confidential and may be privileged and exempt from disclosure under applicable law. It is intended solely for the use of the individual or intended recipient. You are hereby notified that any use, dissemination or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender. Thank you for your cooperation.
>
>
>
> On Tue, Jan 14, 2014 at 3:12 PM, Larry Webb wrote:
>
>
> I have a recent Ch 11 case with a foreclosure stay. Title Company was notified by fax and phone call of the bankruptcy on the day of filing and the original sale date was postponed. Client (very upset) received a post-petition dated notice of sale date of 02/04/2014. I have sent a 362(a)(1) letter to the sale trustee and notified opposing counsel by email who gave me the following reply;
>
>
>
> Routine postponements are not stayed and are done by the title company as a matter of course.
>
>
>
> My experience is that all notice of sale are stayed, am I missing something? Opposing counsel is a very experienced CH 11 attorney.
>
>
>
> Best Regards
>
>
>
>
>
> Larry Webb
>
> Law Office of Larry Webb
>
> 484 Mobil Ste 43
>
> Camarillo, Ca 93010
>
> 805-987-1400
>
> http://www.thousandoaksprobate.com/
>
> Email Larry@webbklaw.com
>
>
>
>
>
>
>
>
> Link Schrader, Attorney
> Law Office of Link W. Schrader
> Mail: P.O. Box 3723, Tustin, CA 92781
> Office: 106 W. 4th Street, Suite #308, Santa Ana,
> CA 92701
> Office: (714) 542-5922; Mobile/Text: (310) 413-6924
> San Diego: (619) 952-8342; Fax: (310) 878-4158
> www.schrader-law.com
> ______________________________________________________________________________________________________
> This communication and any files transmitted with it contain information which is confidential and may be privileged and exempt from disclosure under applicable law. It is intended solely for the use of the individual or intended recipient. You are hereby notified that any use, dissemination or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender. Thank you for your cooperation.
>
>
>
charsetndows-1252
Link, what is the citation for the 12 month period after which re-noticing and re-publishing the notice of sale is required?Thanks.Jason
Jason Wallach
The post was migrated from Yahoo.
I would agree that a routine postponement would not be stayed. However, an
actual sale would be a violation of the automatic stay and the title
company knows it. The lender does it this way because if the case is
dismissed within 12 months of the notice of default, then the sale can
proceed at the next noticed date. If more than 12 months passes from the
date of the notice of default, then that notice would have to be recorded
again.
I would reassure the client that any sale conducted in violation of the
automatic stay would be void, not just voidable.
*Link Schrader, Attorney*
Law Office of Link W. Schrader
P.O. Box 3723, Tustin, CA 92781
Office: (714) 542-5922; Mobile/Text: (310) 413-6924
Fax: (310) 878-4158; www.schrader-law.com
The post was migrated from Yahoo.
I have a recent Ch 11 case with a foreclosure stay. Title Company was
notified by fax and phone call of the bankruptcy on the day of filing and
the original sale date was postponed. Client (very upset) received a
post-petition dated notice of sale date of 02/04/2014. I have sent a
362(a)(1) letter to the sale trustee and notified opposing counsel by email
who gave me the following reply;
"Routine postponements are not stayed and are done by the title company as a
matter of course."
My experience is that all notice of sale are stayed, am I missing something?
Opposing counsel is a very experienced CH 11 attorney.
Best Regards
Larry Webb
Law Office of Larry Webb
484 Mobil Ste 43
Camarillo, Ca 93010
805-987-1400
http://www.thousandoaksprobate.com/
Email Larry@webbklaw.com
The post was migrated from Yahoo.