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Motion to Impose Stay
Shannon, these are first day motions that must be heard BEFORE the 30 days.
On Wednesday, December 9, 2015, Shannon Doyle
sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>
>
> Is a motion to impose the stay appropriate in a second filing within 1
> year when the stay has already expired after 30 days of the filing of the
> second case?
>
>
>
> [image: New Professional Pic2]
>
> Shannon A. Doyle
>
> *Attorney | Virtual Bankruptcy Assistant*
>
> *Phone: 855-378-4080*
>
> *Fax: 562-249-8435*
>
> [image: PetitionPartnD05bR08aP01ZL-Madison8a]
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Christine A. Kingston, Esq.
Law Office of Christine A. Kingston
5011 Argosy Avenue, Suite 3
Huntington Beach, CA 92649
Office: 714-533-9210
Fax: 714-489-8150
Email: attorneychristine@gmail.com
Blog: www.losangelesbankruptcylawmonitor.com
The post was migrated from Yahoo.
Perhaps request injunction under 105?
Sent from my iPhone - please excuse typos.
> On Dec 9, 2015, at 5:50 PM, Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>
> Hi Nick I understand 362(c)(3)(B) and I know you can impose the stay after the third case but the problem here is client filed a second case and did not continue the stay. Thirty days lapsed and so now what? If the judge doesnt follow Rinard is the debtor out of luck for reimposing the stay? Lets say there is no stay and the lender doesnt act. The case gets confirmed. Is the lender then bound by the confirmation order?
>
>
>
>
>
>
>
> Shannon A. Doyle
>
> Attorney | Virtual Bankruptcy Assistant
>
> Phone: 855-378-4080
>
> Fax: 562-249-8435
>
>
>
>
>
>
>
>
>
> Sent: Wednesday, December 09, 2015 4:41 PM
> To: cdcbaa@yahoogroups.com
> Cc: ngebelt@goodbye2debt.com
> Subject: RE: [cdcbaa] Motion to Impose Stay
>
>
>
>
>
> Dear Giovanni,
>
>
>
> I have reimposed the stay with a motion. See, e.g., 8:15-bk-11774-TA.
>
>
>
> Given that: (a) there is a form for the motion, F 4001-1.IMPOSE.STAY.MOTION,
>
> (b) there is nothing pertaining to reimposing the automatic stay in Fed. R. Bankr. Proc. 7001,
>
> (c) LBR 4001-1(d) specifies that a motion should be used to extend or impose the stay,
>
> (d) pursuant to 11 U.S.C. 362(c)(3)(B) the hearing on reimposing the stay must be completed before the postpetition thirty day period expires, and
>
> (e) thirty days is insufficient time to prosecute an adversary proceeding to completion to reimpose the stay,
>
> it is clear that the debtor must obtain the relief by motion rather than adversary proceeding.
>
>
>
> However, you are quite correct that whether the stay terminates with respect to property of the estate (as opposed to the debtor) is up to the predilection of the judge. Although in In re Reswick, 446 B.R. 362 (B.A.P. 9th Cir. 2011) the BAP held that the stay terminates with respect to both the debtor and property of the estate on the thirty-first day after filing the second case, according to Judge Clarkson in In re Rinard, 451 B.R. 12 (Bankr. C.D. Cal. 2011), BAP decisions do not have precedential force. Therefore, in Rinard Judge Clarkson specifically rejected Reswick and held that the stay remains in effect regarding property of the estate, even though it no longer applies to the debtor.
>
>
>
> And Shannon, 362(c)(3)(B) answers your question.
>
>
>
> All the best,
>
>
>
> Nick
>
>
>
> Nicholas Gebelt
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Attorney at Law
>
> Certified Bankruptcy Law Specialist State Bar of California Board of Legal Specialization
>
> Commissioner, California State Bars Bankruptcy Law Advisory Committee
>
>
>
>
>
>
>
> Law Offices of Nicholas Gebelt
>
> 15150 Hornell Street
>
> Whittier, CA 90604
>
> Phone: 562.777.9159
>
> FAX: 562.946.1365
>
> Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
>
> Web: www.goodbye2debt.com
>
> Blog: www.southerncaliforniabankruptcylawblog.com/
>
>
>
> Important notice required by 11 U.S.C. 528: We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
>
>
>
> Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail info@gebeltlaw.com and destroy the original message and all copies.
>
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>
> Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
>
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>
> IRS Circular 230 Disclosure: In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
>
>
>
> Sent: Wednesday, December 09, 2015 3:46 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Motion to Impose Stay
>
>
>
>
>
> I recall that an AP is needed. However, if the Judge in the case believes that the stay as to the estate has not expired in this second case, your client's assets may be protected anyway.
>
>
>
> On Wed, Dec 9, 2015 at 3:24 PM, Mark Jessee jesseelaw@aol.com [cdcbaa] wrote:
>
>
>
> Must be filed and heard within 30 days of second case's filing.
>
>
>
> Mark Jessee
>
> Sent from my iPhone
>
>
> On Dec 9, 2015, at 2:19 PM, Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>
>
>
> Is a motion to impose the stay appropriate in a second filing within 1 year when the stay has already expired after 30 days of the filing of the second case?
>
>
>
>
>
> Shannon A. Doyle
>
> Attorney | Virtual Bankruptcy Assistant
>
> Phone: 855-378-4080
>
> Fax: 562-249-8435
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> --
>
> Giovanni Orantes, Esq.*
>
> Orantes Law Firm, P.C.
> 3435 Wilshire Blvd. Suite 2920
> Los Angeles, CA 90010
> Tel: (213) 389-4362
> Fax: (877) 789-5776
> e-mail: go@gobklaw.com
> website: www.gobklaw.com
>
> *Certified Bankruptcy Specialist, State Bar of California, Board of Legal Specialization
>
> *Board Certified - Business Bankruptcy Law - American Board of Certification
>
> *Board Certified - Consumer Bankruptcy Law - American Board of Certification
>
> Commercial Litigation
>
> Estate Planning
>
> Outside General Counsel
>
>
>
>
>
>
>
> WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
>
>
> SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA AND THE WORLD FOR CHAPTER 11 AND 15 CASES.
>
>
>
The post was migrated from Yahoo.
I agree with Mark Jessee's conclusion. However, if the stay already
expired and a stay is needed before plan confirmation, I have litigated
whether a motion is enough and the Court ruled an AP was necessary.
Giovanni Orantes, Esq.*
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 2920
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
**Certified Bankruptcy Specialist, State Bar of California, Board of Legal
Specialization*
*Board Certified - Business Bankruptcy Law - American Board of Certification
*Board Certified - Consumer Bankruptcy Law - American Board of Certification
Commercial Litigation
Estate Planning
Outside General Counsel
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO
AND SANTA BARBARA AND THE WORLD FOR CHAPTER 11 AND 15 CASES.
I agree with Mark Jessee's conclusion. However, if the stay already expired and a stay is needed before plan confirmation, I have litigated whether a motion is enough and the Court ruled an AP was necessary.-- Giovanni Orantes, Esq.*Orantes Law Firm, P.C.3435 Wilshire Blvd. Suite 2920Los Angeles, CA 90010Tel: (213) 389-4362Fax: (877) 789-5776e-mail:
The post was migrated from Yahoo.
Correct. Debtor is out of luck if the 30 day lapses and the judge doesn't follow Rinard. Also correct if the chapter 13 plan is confirmed lender is bound by confirmation order.
Mark Jessee
Sent from my iPhone
> On Dec 9, 2015, at 5:50 PM, Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>
> Hi Nick I understand 362(c)(3)(B) and I know you can impose the stay after the third case but the problem here is client filed a second case and did not continue the stay. Thirty days lapsed and so now what? If the judge doesnt follow Rinard is the debtor out of luck for reimposing the stay? Lets say there is no stay and the lender doesnt act. The case gets confirmed. Is the lender then bound by the confirmation order?
>
>
>
>
>
>
>
> Shannon A. Doyle
>
> Attorney | Virtual Bankruptcy Assistant
>
> Phone: 855-378-4080
>
> Fax: 562-249-8435
>
>
>
>
>
>
>
>
>
> Sent: Wednesday, December 09, 2015 4:41 PM
> To: cdcbaa@yahoogroups.com
> Cc: ngebelt@goodbye2debt.com
> Subject: RE: [cdcbaa] Motion to Impose Stay
>
>
>
>
>
> Dear Giovanni,
>
>
>
> I have reimposed the stay with a motion. See, e.g., 8:15-bk-11774-TA.
>
>
>
> Given that: (a) there is a form for the motion, F 4001-1.IMPOSE.STAY.MOTION,
>
> (b) there is nothing pertaining to reimposing the automatic stay in Fed. R. Bankr. Proc. 7001,
>
> (c) LBR 4001-1(d) specifies that a motion should be used to extend or impose the stay,
>
> (d) pursuant to 11 U.S.C. 362(c)(3)(B) the hearing on reimposing the stay must be completed before the postpetition thirty day period expires, and
>
> (e) thirty days is insufficient time to prosecute an adversary proceeding to completion to reimpose the stay,
>
> it is clear that the debtor must obtain the relief by motion rather than adversary proceeding.
>
>
>
> However, you are quite correct that whether the stay terminates with respect to property of the estate (as opposed to the debtor) is up to the predilection of the judge. Although in In re Reswick, 446 B.R. 362 (B.A.P. 9th Cir. 2011) the BAP held that the stay terminates with respect to both the debtor and property of the estate on the thirty-first day after filing the second case, according to Judge Clarkson in In re Rinard, 451 B.R. 12 (Bankr. C.D. Cal. 2011), BAP decisions do not have precedential force. Therefore, in Rinard Judge Clarkson specifically rejected Reswick and held that the stay remains in effect regarding property of the estate, even though it no longer applies to the debtor.
>
>
>
> And Shannon, 362(c)(3)(B) answers your question.
>
>
>
> All the best,
>
>
>
> Nick
>
>
>
> Nicholas Gebelt
>
>
>
> Nicholas Gebelt, Ph.D., J.D.
>
> Attorney at Law
>
> Certified Bankruptcy Law Specialist State Bar of California Board of Legal Specialization
>
> Commissioner, California State Bars Bankruptcy Law Advisory Committee
>
>
>
>
>
>
>
> Law Offices of Nicholas Gebelt
>
> 15150 Hornell Street
>
> Whittier, CA 90604
>
> Phone: 562.777.9159
>
> FAX: 562.946.1365
>
> Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
>
> Web: www.goodbye2debt.com
>
> Blog: www.southerncaliforniabankruptcylawblog.com/
>
>
>
> Important notice required by 11 U.S.C. 528: We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
>
>
>
> Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail info@gebeltlaw.com and destroy the original message and all copies.
>
>
>
> Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
>
>
>
> IRS Circular 230 Disclosure: In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
>
>
>
> Sent: Wednesday, December 09, 2015 3:46 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] Motion to Impose Stay
>
>
>
>
>
> I recall that an AP is needed. However, if the Judge in the case believes that the stay as to the estate has not expired in this second case, your client's assets may be protected anyway.
>
>
>
> On Wed, Dec 9, 2015 at 3:24 PM, Mark Jessee jesseelaw@aol.com [cdcbaa] wrote:
>
>
>
> Must be filed and heard within 30 days of second case's filing.
>
>
>
> Mark Jessee
>
> Sent from my iPhone
>
>
> On Dec 9, 2015, at 2:19 PM, Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>
>
>
> Is a motion to impose the stay appropriate in a second filing within 1 year when the stay has already expired after 30 days of the filing of the second case?
>
>
>
>
>
> Shannon A. Doyle
>
> Attorney | Virtual Bankruptcy Assistant
>
> Phone: 855-378-4080
>
> Fax: 562-249-8435
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> --
>
> Giovanni Orantes, Esq.*
>
> Orantes Law Firm, P.C.
> 3435 Wilshire Blvd. Suite 2920
> Los Angeles, CA 90010
> Tel: (213) 389-4362
> Fax: (877) 789-5776
> e-mail: go@gobklaw.com
> website: www.gobklaw.com
>
> *Certified Bankruptcy Specialist, State Bar of California, Board of Legal Specialization
>
> *Board Certified - Business Bankruptcy Law - American Board of Certification
>
> *Board Certified - Consumer Bankruptcy Law - American Board of Certification
>
> Commercial Litigation
>
> Estate Planning
>
> Outside General Counsel
>
>
>
>
>
>
>
> WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
>
>
> SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA AND THE WORLD FOR CHAPTER 11 AND 15 CASES.
>
>
>
The post was migrated from Yahoo.
I recall that an AP is needed. However, if the Judge in the case believes
that the stay as to the estate has not expired in this second case, your
client's assets may be protected anyway.
On Wed, Dec 9, 2015 at 3:24 PM, Mark Jessee jesseelaw@aol.com [cdcbaa] wrote:
>
>
> Must be filed and heard within 30 days of second case's filing.
>
> Mark Jessee
>
> Sent from my iPhone
>
> On Dec 9, 2015, at 2:19 PM, Shannon Doyle sdoyle@ebankruptcyassistants.com
> [cdcbaa] wrote:
>
>
>
> Is a motion to impose the stay appropriate in a second filing within 1
> year when the stay has already expired after 30 days of the filing of the
> second case?
>
>
>
>
>
> Shannon A. Doyle
>
> *Attorney | Virtual Bankruptcy Assistant*
>
> *Phone: 855-378-4080 *
>
> *Fax: 562-249-8435 *
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
Giovanni Orantes, Esq.*
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 2920
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
**Certified Bankruptcy Specialist, State Bar of California, Board of Legal
Specialization*
*Board Certified - Business Bankruptcy Law - American Board of Certification
*Board Certified - Consumer Bankruptcy Law - American Board of Certification
Commercial Litigation
Estate Planning
Outside General Counsel
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO
AND SANTA BARBARA AND THE WORLD FOR CHAPTER 11 AND 15 CASES.
I recall that an AP is needed. However, if the Judge in the case believes that the stay as to the estate has not expired in this second case, your client's assets may be protected anyway.
The post was migrated from Yahoo.
Must be filed and heard within 30 days of second case's filing.
Mark Jessee
Sent from my iPhone
> On Dec 9, 2015, at 2:19 PM, Shannon Doyle sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>
> Is a motion to impose the stay appropriate in a second filing within 1 year when the stay has already expired after 30 days of the filing of the second case?
>
>
>
>
>
> Shannon A. Doyle
>
> Attorney | Virtual Bankruptcy Assistant
>
> Phone: 855-378-4080
>
> Fax: 562-249-8435
>
>
>
>
>
>
>
>
>
>
The post was migrated from Yahoo.