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URGENT!! Effect of second notice of sale
Actually, I have to amend the hypo. The Trustee's Deed Upon Sale purports
to relate to the sale that was scheduled under the original Notice of
Sale. In other words, the sale that took place on 6/5/12, not the one
noticed by the notice sent out in July 17, 2012 (the day after the
purchaser filed a motion for relief from stay) for a sale on 8/8/12.
I'm actually leaving out some interesting stuff: the one requesting the
stay relief was the purchaser, not the seller. The seller has never joined
in the motion for relief from stay. In addition, no TDUS was executed at
the time of the foreclosure sale. The TDUS was not executed until about 3
months later while the stay in the case was still in effect and recorded
another 10 days after that.
So, my most important question on which I need others to check me is: is a
sale valid if the purchaser gets retroactive stay relief but not the
seller? Does the answer change if the Bank heeds the bankrutpcy filing and
tells the purchaser that the purchase was invalid and returns the money
and, in fact, notices a later trustee sale with a new formal Notice of Sale
and does not cause the foreclosure to sign a TDUS until almost 3 months
later, though it purports to relate to the 6/5/12 sale
On Tue, Mar 5, 2013 at 8:08 PM, Giovanni Orantes wrote:
> This is the situation:
>
> A notice of sale is issued. Borrower files for Ch. 13 the day before the
> noticed sale date. Bank goes forward with sale anyway and receives notice
> of the bankruptcy on the sale date, but after the sale time. A third party
> had bid and paid for the property, but the bank informs the third party of
> the bankruptcy filing and returns the funds to the third party. The third
> party wants to preserve the transaction and files a motion to annul the
> automatic stay. The day after the third party filed the motion, the
> Foreclosure Trustee issues a *new* Notice of Sale for 20 days later. A
> Trustee's Deed Upon Sale is ultimately issued some 2 months later, but it
> does not specify to what notice of sale it related.
>
> What is the effect of the new notice of sale? Did the sale happen
> according to the second notice of sale or the first? This is important
> because the bank did not get relief from stay before issuing the second
> notice of sale, which should render a sale under the second notice of sale
> void ab initio. We are trying to recover the property (a retail shop with
> the Debtor's home in the bank) to reorganize it in a Chapter 11.
>
> --
>
> --
>
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
Actually, I have to amend the hypo. The Trustee's Deed Upon Sale purports to relate to the sale that was scheduled under the original Notice of Sale. In other words, the sale that took place on 6/5/12, not the one noticed by the notice sent out in July 17, 2012 (the day after the purchaser filed a motion for relief from stay)for a sale on 8/8/12.
I'm actually leaving out some interesting stuff: the one requesting the stay relief was the purchaser, not the seller. The seller has never joined in the motion for relief from stay. In addition, no TDUS was executed at the time of the foreclosure sale. The TDUS was not executed until about 3 months later while the stay in the case was still in effect and recorded another 10 days after that.
So, my most important question on which I need others to check me is: is a sale valid if the purchaser gets retroactive stay relief but not the seller? Does the answer change if the Bank heeds the bankrutpcy filing and tells the purchaser that the purchase was invalid and returns the money and, in fact, notices a later trustee sale with a new formal Notice of Sale and does not cause the foreclosure to sign a TDUS until almost 3 months later, though it purports to relate to the 6/5/12 sale
On Tue, Mar 5, 2013 at 8:08 PM, Giovanni Orantes <go@gobklaw.com> wrote:
The post was migrated from Yahoo.
This is the situation:
A notice of sale is issued. Borrower files for Ch. 13 the day before the
noticed sale date. Bank goes forward with sale anyway and receives notice
of the bankruptcy on the sale date, but after the sale time. A third party
had bid and paid for the property, but the bank informs the third party of
the bankruptcy filing and returns the funds to the third party. The third
party wants to preserve the transaction and files a motion to annul the
automatic stay. The day after the third party filed the motion, the
Foreclosure Trustee issues a *new* Notice of Sale for 20 days later. A
Trustee's Deed Upon Sale is ultimately issued some 2 months later, but it
does not specify to what notice of sale it related.
What is the effect of the new notice of sale? Did the sale happen
according to the second notice of sale or the first? This is important
because the bank did not get relief from stay before issuing the second
notice of sale, which should render a sale under the second notice of sale
void ab initio. We are trying to recover the property (a retail shop with
the Debtor's home in the bank) to reorganize it in a Chapter 11.
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
This is the situation:A notice of sale is issued. Borrower files for Ch. 13 the day before the noticed sale date. Bank goes forward with sale anywayandreceives notice of the bankruptcyon the sale date, butafter the sale time. A third party hadbid and paid for the property, but the bank informs the third party of the bankruptcy filing and returns the funds to the third party.annul the automatic stay. Theday after the third party filed the motion, the Foreclosure Trustee issues a new Notice of Sale for 20 days later. A Trustee's Deed Upon Sale is ultimately issued some 2 months later, but it does not specify to what notice of sale it related.
What is the effect of the new notice of sale? Did the sale happen according to the second notice of sale or the first? This is important because the bank did not get relief from stay before issuing the second notice of sale, which should render a sale under the second notice of sale void ab initio. We are trying to recover the property (a retail shop with the Debtor's home in the bank)to reorganize it in a Chapter 11.
-- 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.