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Permanent Stay
-> I can't find what you're referring to. Can you cite to the language that
makes you believe that "Home State Bank provides that the ONLY solution for
a post-C7-discharge mortgage is to file a C13 or a C11"?
it's more a feeling i have after thinking about it, but the language that
leads me there is mostly the following...
at 82-83 ...
... A mortgage is an interest in real property that secures a creditor's
right to repayment. But unless the debtor and creditor have provided
otherwise, the creditor ordinarily is not limited to foreclosure on the
mortgaged property should the debtor default on his obligation; rather, the
creditor may in addition sue to establish the debtor's *in personam* liability
for any deficiency on the debt and may enforce any judgment against the
debtor's assets generally. See 3 R. Powell, The Law of Real Property 467
(1990). A defaulting debtor can protect himself from personal liability by
obtaining a discharge in a Chapter 7 liquidation. 83*83 See 11 U. S. C.
727. However, such a discharge extinguishes *only* "the personal liability
of the debtor." 11 U. S. C. 524(a)(1). Codifying the rule of *Long* v. *
Bullard,* 117 *U. S.* 617
The post was migrated from Yahoo.
Philip,
I can't find what you're referring to. Can you cite to the language that
makes you believe that "Home State Bank provides that the ONLY solution for
a post-C7-discharge mortgage is to file a C13 or a C11"?
I think that even if you provide the language, it will be dicta only since
the Court itself phrased it like this:
"*80 JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is whether a debtor can include a mortgage lien in a
Chapter 13 bankruptcy reorganization plan once the personal obligation
secured by the mortgaged property has been discharged in a Chapter 7
proceeding. We hold that the mortgage lien in such a circumstance remains a
"claim" against the debtor that can be rescheduled under Chapter 13."
this is from my google scholar:
The post was migrated from Yahoo.
one reasonable, but scary, reading of Home State Bank is that the C7
Discharge Order "freezes" the lien in place.
this is why i am concerned that there can be NO attack on the lien/deed of
trust to quiet title to the property outside of the Bankruptcy Code.
i will be happy to be disabused of my unfortunate interpretation of Home
State Bank - which is otherwise a great decision and provides the basis for
so-called "Chapter 20" (and impliedly "Chapter 18") cases.
we tend to think of Home State Bank as providing the opportunity for a
Chapter 13 (or Chapter 11) cure of the arrears of a mortgage, but it may be
more accurate to say that Home State Bank provides that the ONLY solution
for a post-C7-discharge mortgage is to file a C13 or a C11.
in other words, after a C7 discharge, NO quiet title action may lie outside
of the Bankruptcy Code.
show me why i am wrong please.
PHiLiP KOeBeL
(626) 629-8199
On Tue, Apr 30, 2013 at 10:41 AM, John D. Faucher wrote:
> **
>
>
> Hello Philip:
> I'm assuming Catherine's facts include the debtor having a discharge and
> the bankruptcy case is closed.
> Johnson v. Home State Bank, 501 US 78, allows a debtor to file a second
> bankruptcy and include an in rem obligation, whose personal liability has
> been discharged, in his chapter 13 plan. It doesn't prevent a creditor from
> pursuing an in rem action against the discharged debtor who has not gone
> back into bankruptcy.
> In fact, Home State Bank actually assumes without discussion that the
> creditor can pursue the discharged debtor outside of bankruptcy: "Notwithstanding
> the discharge, the Bank's right to proceed against petitioner *in rem* survived
> the Chapter 7 liquidation."
> I'd advise going forward with the quiet title action in state court. If
> the debtor wants to file bankruptcy again, let him.
>
> John D. Faucher
> Faucher & Associates
> *818/889-8080*
>
>
> On Sun, Apr 28, 2013 at 6:26 PM, PHiLiP E. KOeBeL, Esq. lawofpek@gmail.com> wrote:
>
>> **
>>
>> [Attachment(s) from PHiLiP
>> E. KOeBeL, Esq. included below]
>>
>>
>> i don't see how this can be done without filing a quiet title in
>> bankruptcy court due to Home State Bank...
>>
>>
>>
>> On Fri, Apr 26, 2013 at 12:16 PM, Catherine Christiansen > christiansenlaw@yahoo.com> wrote:
>>
>>> **
>>>
>>>
>>> "permanent stay" is slang for the discharge. ) Thanks. That's how I
>>> saw it too, just needed someone else to see it that way also.
>>>
>>>
>>>
>>> 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
>>>
>>> * ***
>>> **
>>>
>>> ------------------------------
>>> *From:* John D. Faucher
>>> *To:* cdcbaa@yahoogroups.com
>>> *Sent:* Friday, April 26, 2013 11:59 AM
>>> *Subject:* Re: [cdcbaa] Permanent Stay
>>>
>>>
>>> Hello Catherine:
>>> I have no experience with this particular issue. But let's think this
>>> through anyway.
>>> What is the adversary action that the creditor could have filed but
>>> didn't while the bankruptcy was in place? I can't think of one. A
>>> bankruptcy judge would laugh at a quiet title action being filed in her
>>> court. If you had wanted to file that during the pendency of the
>>> bankruptcy case, you would have needed relief from stay, but the judge
>>> would have sent you straight to state court.
>>> I've never heard the term "permanent stay," but I have heard the term
>>> "discharge." The discharge injunction at 541(a)(2) enjoins against
>>> collecting on a debt as a personal liability.
>>> Your borrower/client wants to quiet title. That's in rem. We don't
>>> care about the debtor's personal ability to pay a thing.
>>> The borrower can go ahead and sue to quiet title, naming the discharged
>>> debtor as a defendant.
>>>
>>> John D. Faucher
>>> Faucher & Associates
>>> *818/889-8080*
>>>
>>>
>>> On Fri, Apr 26, 2013 at 9:57 AM, Catherine Christiansen >> christiansenlaw@yahoo.com> wrote:
>>>
>>> **
>>>
>>> The debtor received a discharge. The debtor has a deed of trust on
>>> real property, real property listed in schedules, no equity for the
>>> debtor. The borrower has a cause of action for quiet title against the
>>> debtor but missed deadline to file adversary in BK. Is the borrower
>>> stopped by the the permanent stay from including the debtor in the
>>> proceeding on a quiet title action in state court or is there an exception
>>> because the action is on the real property not against the debtor? Anyone
>>> with any experience with this?
>>>
>>>
>>> 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
>>>
>>> * ***
>>> **
>>>
>>>
>>>
>>>
>>>
>>
>
>
one reasonable, but scary, reading of Home State Bank is that the C7 Discharge Order "freezes" the lien in place.this is why i am concerned that there can be NO attack on the lien/deed of trust to quiet title to the property outside of the Bankruptcy Code.
i will be happy to be disabused of my unfortunate interpretation of Home State Bank - which is otherwise a great decision and provides the basis for so-called "Chapter 20" (and impliedly "Chapter 18") cases.
we tend to think of Home State Bank as providing the opportunity for a Chapter 13 (or Chapter 11) cure of the arrears of a mortgage, but it may be more accurate to say that Home State Bank provides that the ONLY solution for a post-C7-discharge mortgage is to file a C13 or a C11.
in other words, after a C7 discharge, NO quiet title action may lie outside of the Bankruptcy Code.show me why i am wrong please.PHiLiP KOeBeL
(626) 629-8199On Tue, Apr 30, 2013 at 10:41 AM, John D. Faucher <j.d.faucher@sbcglobal.net> wrote:
Hello Philip:
The post was migrated from Yahoo.
Hi Philip:
My reading of the case is the same as John's. John has the facts correct.
Catherine.
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
________________________________
To: cdcbaa@yahoogroups.com
Sent: Tuesday, April 30, 2013 10:41 AM
Subject: Re: [cdcbaa] Permanent Stay
Hello Philip:
I'm assuming Catherine's facts include the debtor having a discharge and the bankruptcy case is closed.
Johnson v. Home State Bank, 501 US 78, allows a debtor to file a second bankruptcy and include an in rem obligation, whose personal liability has been discharged, in his chapter 13 plan. It doesn't prevent a creditor from pursuing an in rem action against the discharged debtor who has not gone back into bankruptcy.
In fact, Home State Bank actually assumes without discussion that the creditor can pursue the discharged debtor outside of bankruptcy: "Notwithstanding the discharge, the Bank's right to proceed against petitionerin rem
John D. Faucher
Faucher & Associates
818/889-8080
On Sun, Apr 28, 2013 at 6:26 PM, PHiLiP E. KOeBeL, Esq. wrote:
>
>[Attachment(s) from PHiLiP E. KOeBeL, Esq. included below]
>
>
>i don't see how this can be done without filing a quiet title in bankruptcy court due to Home State Bank...
>
>
>
>
>On Fri, Apr 26, 2013 at 12:16 PM, Catherine Christiansen wrote:
>
>
>>
>>"permanent stay" is slang for the discharge. ) Thanks.so.
>>
>>
>>
>>
>>
>>
>>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
>>
>>
>>
>>
>>
>>
>>
>>________________________________
>>To: cdcbaa@yahoogroups.com
>>Sent: Friday, April 26, 2013 11:59 AM
>>Subject: Re: [cdcbaa] Permanent Stay
>>
>>
>>
>>
>>Hello Catherine:
>>I have no experience with this particular issue. But let's think this through anyway.
>>What is the adversary action that the creditor could have filed but didn't while the bankruptcy was in place? I can't think of one. A bankruptcy judge would laugh at a quiet title action being filed in her court. If you had wanted to file that during the pendency of the bankruptcy case, you would have needed relief from stay, but the judge would have sent you straight to state court.
>>I've never heard the term "permanent stay," but I have heard the term "discharge." The discharge injunction at 541(a)(2) enjoins against collecting on a debt as a personal liability.
>>Your borrower/client wants to quiet title. That's in rem. We don't care about the debtor's personal ability to pay a thing.
>>The borrower can go ahead and sue to quiet title, naming the discharged debtor as a defendant.
>>
>>
>>John D. Faucher
>>Faucher & Associates
>>818/889-8080
>>
>>
>>On Fri, Apr 26, 2013 at 9:57 AM, Catherine Christiansen wrote:
>>
>>
>>>
>>>The debtor received a discharge. The debtor has a deed of trust on real property, real property listed in schedules, no equity for the debtor. The borrower has a cause of action for quiet title against the debtor but missed deadline to file adversary in BK. Is the borrower stopped by the the permanent stay from including the debtor in the proceeding on a quiet title action in state court or is there an exception because the action is on the real property not against the debtor? Anyone with any experience with this?
>>>
>>>
>>>
>>>
>>>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
>>>
>>>
>>>
>>
>>
>>
>
The post was migrated from Yahoo.
i don't see how this can be done without filing a quiet title in bankruptcy
court due to Home State Bank...
On Fri, Apr 26, 2013 at 12:16 PM, Catherine Christiansen wrote:
> **
>
>
> "permanent stay" is slang for the discharge. ) Thanks. That's how I
> saw it too, just needed someone else to see it that way also.
>
>
>
> 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
>
> * ***
> **
>
> ------------------------------
> *From:* John D. Faucher
> *To:* cdcbaa@yahoogroups.com
> *Sent:* Friday, April 26, 2013 11:59 AM
> *Subject:* Re: [cdcbaa] Permanent Stay
>
>
> Hello Catherine:
> I have no experience with this particular issue. But let's think this
> through anyway.
> What is the adversary action that the creditor could have filed but didn't
> while the bankruptcy was in place? I can't think of one. A bankruptcy
> judge would laugh at a quiet title action being filed in her court. If you
> had wanted to file that during the pendency of the bankruptcy case, you
> would have needed relief from stay, but the judge would have sent you
> straight to state court.
> I've never heard the term "permanent stay," but I have heard the term
> "discharge." The discharge injunction at 541(a)(2) enjoins against
> collecting on a debt as a personal liability.
> Your borrower/client wants to quiet title. That's in rem. We don't care
> about the debtor's personal ability to pay a thing.
> The borrower can go ahead and sue to quiet title, naming the discharged
> debtor as a defendant.
>
> John D. Faucher
> Faucher & Associates
> *818/889-8080*
>
>
> On Fri, Apr 26, 2013 at 9:57 AM, Catherine Christiansen christiansenlaw@yahoo.com> wrote:
>
> **
>
> The debtor received a discharge. The debtor has a deed of trust on real
> property, real property listed in schedules, no equity for the debtor. The
> borrower has a cause of action for quiet title against the debtor but
> missed deadline to file adversary in BK. Is the borrower stopped by the
> the permanent stay from including the debtor in the proceeding on a quiet
> title action in state court or is there an exception because the action is
> on the real property not against the debtor? Anyone with any experience
> with this?
>
>
> 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
>
> * ***
> **
>
>
>
>
>
>
i don't see how this can be done without filing a quiet title in bankruptcy court due to Home State Bank...On Fri, Apr 26, 2013 at 12:16 PM, Catherine Christiansen <christiansenlaw@yahoo.com> wrote:
"permanent stay" is slang for the discharge. ) Thanks. That's how I saw it too, just needed someone else to see it that way also.
Law Office of Catherine Christiansen
17011 Beach Blvd. Ste 900, Huntington Beach, CA 92647Tel:
From: John D. Faucher <j.d.faucher@sbcglobal.net> To: cdcbaa@yahoogroups.com
Sent: Friday, April 26, 2013 11:59 AM Subject: Re: [cdcbaa] Permanent Stay
Hello Catherine:
I have no experience with this particular issue. But let's think this through anyway.What is the adversary action that the creditor could have filed but didn't while the bankruptcy was in place? I can't think of one. A bankruptcy judge would laugh at a quiet title action being filed in her court. If you had wanted to file that during the pendency of the bankruptcy case, you would have needed relief from stay, but the judge would have sent you straight to state court.
I've never heard the term "permanent stay," but I have heard the term "discharge." The discharge injunction at 541(a)(2) enjoins against collecting on a debt as a personal liability.
Your borrower/client wants to quiet title. That's in rem. We do
The post was migrated from Yahoo.
"permanent stay" is slang for the discharge. ) Thanks. That's how I saw it too, just needed someone else to see it that way also.
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
________________________________
To: cdcbaa@yahoogroups.com
Sent: Friday, April 26, 2013 11:59 AM
Subject: Re: [cdcbaa] Permanent Stay
Hello Catherine:
I have no experience with this particular issue. But let's think this through anyway.
What is the adversary action that the creditor could have filed but didn't while the bankruptcy was in place? I can't think of one. A bankruptcy judge would laugh at a quiet title action being filed in her court. case, you would have needed relief from stay, but the judge would have sent you straight to state court.
I've never heard the term "permanent stay," but I have heard the term "discharge." The discharge injunction at 541(a)(2) enjoins against collecting on a debt as a personal liability.
Your borrower/client wants to quiet title. That's in rem. We don't care about the debtor's personal ability to pay a thing.
The borrower can go ahead and sue to quiet title, naming the discharged debtor as a defendant.
John D. Faucher
Faucher & Associates
818/889-8080
On Fri, Apr 26, 2013 at 9:57 AM, Catherine Christiansen wrote:
>
>The debtor received a discharge. The debtor has a deed of trust on real property, real property listed in schedules, no equity for the debtor.r but missed deadline to file adversary in BK. Is the borrower stopped by the the permanent stay from including the debtor in the proceeding on a quiet title action in state court or is there an exception because the action is on the real property not against the debtor? Anyone with any experience with this?
>
>
>
>
>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
>
>
>
The post was migrated from Yahoo.
Hello Catherine:
I have no experience with this particular issue. But let's think this
through anyway.
What is the adversary action that the creditor could have filed but didn't
while the bankruptcy was in place? I can't think of one. A bankruptcy
judge would laugh at a quiet title action being filed in her court. If you
had wanted to file that during the pendency of the bankruptcy case, you
would have needed relief from stay, but the judge would have sent you
straight to state court.
I've never heard the term "permanent stay," but I have heard the term
"discharge." The discharge injunction at 541(a)(2) enjoins against
collecting on a debt as a personal liability.
Your borrower/client wants to quiet title. That's in rem. We don't care
about the debtor's personal ability to pay a thing.
The borrower can go ahead and sue to quiet title, naming the discharged
debtor as a defendant.
John D. Faucher
Faucher & Associates
*818/889-8080*
On Fri, Apr 26, 2013 at 9:57 AM, Catherine Christiansen wrote:
> **
>
>
> The debtor received a discharge. The debtor has a deed of trust on real
> property, real property listed in schedules, no equity for the debtor. The
> borrower has a cause of action for quiet title against the debtor but
> missed deadline to file adversary in BK. Is the borrower stopped by the
> the permanent stay from including the debtor in the proceeding on a quiet
> title action in state court or is there an exception because the action is
> on the real property not against the debtor? Anyone with any experience
> with this?
>
>
> 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
>
> * ***
> **
>
>
>
Hello Catherine:
I have no experience with this particular issue. But let's think this through anyway.What is the adversary action that the creditor could have filed but didn't while the bankruptcy was in place? I can't think of one. A bankruptcy judge would laugh at a quiet title action being filed in her court. If you had wanted to file that during the pendency of the bankruptcy case, you would have needed relief from stay, but the judge would have sent you straight to state court.
I've never heard the term "permanent stay," but I have heard the term "discharge." The discharge injunction at 541(a)(2) enjoins against collecting on a debt as a personal liability.
Your borrower/client wants to quiet title. Tha
The post was migrated from Yahoo.
The debtor received a discharge. The debtor has a deed of trust on real property, real property listed in schedules, no equity for the debtor. The borrower has a cause of action for quiet title against the debtor but missed deadline to file adversary in BK. Is the borrower stopped by the the permanent stay from including the debtor in the proceeding on a quiet title action in state court or is there an exception because the action is on the real property not against the debtor? Anyone with any experience with this?
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
The post was migrated from Yahoo.