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Motion for Relief from Stay to continue state court action for specific performance on real property
You are correct Dennis - I incorrectly equated a contract for a unique piece of property to a personal services contract.
Law Office of Catherine Christiansen
17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
Tel: (714) 375-6651 Fax: (562) 490-8572
attorneychristiansen@gmail.com
On Wednesday, October 9, 2013 11:21 PM, cdcbaa wrote:
Gosh,
Why is a claim for real property different than a claim for cash? They are both kind of property, real vs. personal. If you made a contract for some cash from me, and I passed the means test, I could file a seven and not pay you the property (cash).
Judge Mund wrote an opinion saying an actor cannot reject an acting contract because there came along a better contract, in other words, there has to be some ethical reason to reject. But why can't a debtor, who is otherwise broke, back out of a real estate contract? Are you saying the debtor would have to show that the debtor could not obtain other property to live upon?
Why should a ruthless purchaser be able to sue for specific performance for a contract for land when all other creditors cannot file a specific performance suit for cash?
I consider myself a debtor's lawyer and would not support this type of parsing the discharge.
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
On Oct 9, 2013, at 5:15 PM, Catherine Christiansen wrote:
>File MRS for your client. 362(d)(1) allows the court to also look to allow relief because it is more efficient or fairer for another crt to resolve a case.
>
>Did the debtor list the state court case in the schedules? Is this the only reason for the debtor to file the ch 7? Are there other debts or is the debtor just trying to get out of this contract? File MTD based on Abuse 707(b)(1) - use (b) (3) specifically uses the totality of the circumstances (including whether the debtor seeks to reject a personal services contract . . . ) First, the debtor had improper motives to file the petition so petition filed in Bad Faith and Second, under the totality of the circumstances of debtor's financial situation demonstrates abuse - prove the petition was not
filed as a sudden response to illness or calamity, were there excessive consumer purchases just before filing, did the debtor rack up debt just before filing, is the budget reasonable?, did the debtor make attempts to deal with creditors through negotiations or state law remedies - are the schedules accurate? There is a case from M.D. Pa 2008 In re Walker, 381 B.R. 620 that you may want to shepardize for this district for more support.ecause you are asking the whole case to be dismissed.
>
>Also file an AP for breach of contract alleging it is not a core proceeding. - ?
>
>
>
>
>
>
>Law Office of Catherine Christiansen
>17011 Beach Blvd. Ste
900, Huntington Beach, CA 92647
>Tel: (714) 375-6651 Fax: (562) 490-8572
>attorneychristiansen@gmail.com
>
>
>
>
>
>
>
>On Wednesday, October 9, 2013 2:55 PM, "tuanl@stevelopezlaw.com" wrote:
>
>
>Dear Listmates,
>
>I currently have a client that has a pending state court matter against a
Chapter 7 Debtor whereby my client is seeking specific performance of a real estate sales
contract between himself and the Debtor. The Debtor refused to follow
through on the contract to sell his property to my client and filed the Chapter
7 petition in pro per instead. The state court action was filed months
prior to the bankruptcy petition.
>
>The Debtor listed the property with $30,000.00 in equity which was fully
exempted under CCP 704 and thus would not be administered by the Chapter 7
Trustee.
>
>I am looking to file a motion for relief from the stay to proceed on the
state
court action. I have researched this issue and found a case in the
Northern District regarding heirs of a decedent seeking to cancel a
grant deed and recovery of property against the Debtor. The court there
stated
that equitable remedies were not claims subject to the discharge
injunction and
that the creditor did not have to object to the discharge to proceed
with their
equitable remedies. I also searched through the Rutter Practice Guidebut
have not found anything on point with my specific case or in regards to
equitable remedies.
>
>I have not found anything specific to motions for relief from the stay in
regards to this issue.
>
>Has anyone dealt with this type of matter before? If so, what is the best route to go about it.
>
>Any help would be greatly appreciated.
>
>Regards,
>Tuan Le
>
>
The post was migrated from Yahoo.
Gosh,
Why is a claim for real property different than a claim for cash? They are both kind of property, real vs. personal. If you made a contract for some cash from me, and I passed the means test, I could file a seven and not pay you the property (cash).
Judge Mund wrote an opinion saying an actor cannot reject an acting contract because there came along a better contract, in other words, there has to be some ethical reason to reject. But why can't a debtor, who is otherwise broke, back out of a real estate contract? Are you saying the debtor would have to show that the debtor could not obtain other property to live upon?
Why should a ruthless purchaser be able to sue for specific performance for a contract for land when all other creditors cannot file a specific performance suit for cash?
I consider myself a debtor's lawyer and would not support this type of parsing the discharge.
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Oct 9, 2013, at 5:15 PM, Catherine Christiansen wrote:
>
> File MRS for your client. 362(d)(1) allows the court to also look to allow relief because it is more efficient or fairer for another crt to resolve a case.
>
> Did the debtor list the state court case in the schedules? Is this the only reason for the debtor to file the ch 7? Are there other debts or is the debtor just trying to get out of this contract? File MTD based on Abuse 707(b)(1) - use (b) (3) specifically uses the totality of the circumstances (including whether the debtor seeks to reject a personal services contract . . . ) First, the debtor had improper motives to file the petition so petition filed in Bad Faith and Second, under the totality of the circumstances of debtor's financial situation demonstrates abuse - prove the petition was not filed as a sudden response to illness or calamity, were there excessive consumer purchases just before filing, did the debtor rack up debt just before filing, is the budget reasonable?, did the debtor make attempts to deal with creditors through negotiations or state law remedies - are the schedules accurate? There is a case from M.D. Pa 2008 In re Walker, 381 B.R. 620 that you may want to shepardize for this district for more support. Might be a good idea to bring the UST's office in on your information because you are asking the whole case to be dismissed.
>
> Also file an AP for breach of contract alleging it is not a core proceeding. - ?
>
>
>
> Law Office of Catherine Christiansen
> 17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
> Tel: (714) 375-6651 Fax: (562) 490-8572
> attorneychristiansen@gmail.com
>
>
>
>
> On Wednesday, October 9, 2013 2:55 PM, "tuanl@stevelopezlaw.com" wrote:
>
> Dear Listmates,
>
> I currently have a client that has a pending state court matter against a Chapter 7 Debtor whereby my client is seeking specific performance of a real estate sales contract between himself and the Debtor. The Debtor refused to follow through on the contract to sell his property to my client and filed the Chapter 7 petition in pro per instead. The state court action was filed months prior to the bankruptcy petition.
>
> The Debtor listed the property with $30,000.00 in equity which was fully exempted under CCP 704 and thus would not be administered by the Chapter 7 Trustee.
>
> I am looking to file a motion for relief from the stay to proceed on the state court action. I have researched this issue and found a case in the Northern District regarding heirs of a decedent seeking to cancel a grant deed and recovery of property against the Debtor. The court there stated that equitable remedies were not claims subject to the discharge injunction and that the creditor did not have to object to the discharge to proceed with their equitable remedies. I also searched through the Rutter Practice Guide but have not found anything on point with my specific case or in regards to equitable remedies.
>
> I have not found anything specific to motions for relief from the stay in regards to this issue.
>
> Has anyone dealt with this type of matter before? If so, what is the best route to go about it.
>
> Any help would be greatly appreciated.
>
> Regards,
> Tuan Le
>
>
>
Gosh,Why is a claim for real property different than a claim for cash? They are both kind of property, real vs. personal. If you made a contract for some cash from me, and I passed the means test, I could file a seven and not pay you the property (cash). Judge Mund wrote an opinion saying an actor cannot reject an acting contract because there came along a better contract, in other words, there has to be some ethical reason to reject. But why can't a debtor, who is otherwise broke, back out of a real estate contract? Are you saying the debtor would have to show that the debtor could not obtain other property to live upon? Why should a ruthless purchaser be able to sue for specific performance for a contract for land when all other creditors cannot file a specific performance suit for cash?I consider myself a debtor's lawyer and would not support this type of parsing the discharge.Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voiceOn Oct 9, 2013, at 5:15 PM, Catherine Christiansen <christiansenlaw@yahoo.com> wrote:
The post was migrated from Yahoo.
File MRS for your client. 362(d)(1) allows the court to also look to allow relief because it is more efficient or fairer for another crt to resolve a case.
Did the debtor list the state court case in the schedules? Is this the only reason for the debtor to file the ch 7? Are there other debts or is the debtor just trying to get out of this contract? File MTD based on Abuse 707(b)(1) - use (b) (3) specifically uses the totality of the circumstances (including whether the debtor seeks to reject a personal services contract . . . ) First, the debtor had improper motives to file the petition so petition filed in Bad Faith and Second, under the totality of the circumstances of debtor's financial situation demonstrates abuse - prove the petition was not filed as a sudden response to illness or calamity, were there excessive consumer purchases just before filing, did the debtor rack up debt just before filing, is the budget reasonable?, did the debtor make attempts to deal with creditors through negotiations or state law remedies - are the schedules accurate? There is a case from M.D. Pa 2008 In re
Walker, 381 B.R. 620 that you may want to shepardize for this district for more support. Might be a good idea to bring the UST's office in on your information because you are asking the whole case to be dismissed.
Also file an AP for breach of contract alleging it is not a core proceeding. - ?
Law Office of Catherine Christiansen
17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647
Tel: (714) 375-6651 Fax: (562) 490-8572
attorneychristiansen@gmail.com
On Wednesday, October 9, 2013 2:55 PM, "tuanl@stevelopezlaw.com" wrote:
Dear Listmates,
I currently have a client that has a pending state court matter against a
Chapter 7 Debtor whereby my client is seeking specific performance of a real estate sales
contract between himself and the Debtor. The Debtor refused to follow
through on the contract to sell his property to my client and filed the Chapter
7 petition in pro per instead. The state court action was filed months
prior to the bankruptcy petition.
The Debtor listed the property with $30,000.00 in equity which was fully
exempted under CCP 704 and thus would not be administered by the Chapter 7
Trustee.
I am looking to file a motion for relief from the stay to proceed on the
state
court action. I have researched this issue and found a case in the
Northern District regarding heirs of a decedent seeking to cancel a
grant deed and recovery of property against the Debtor. The court there
stated
that equitable remedies were not claims subject to the discharge
injunction and
that the creditor did not have to object to the discharge to proceed
with their
equitable remedies. I also searched through the Rutter Practice Guidebut
have not found anything on point with my specific case or in regards to
equitable remedies.
I have not found anything specific to motions for relief from the stay in
regards to this issue.
Has anyone dealt with this type of matter before? If so, what is the best route to go about it.
Any help would be greatly appreciated.
Regards,
Tuan Le
The post was migrated from Yahoo.