How to Stay Litigation in State Court Duplicative of
Posted: Thu Nov 10, 2016 12:10 pm
I was recently hired in a case to represent the debtor in an adversary
proceeding regarding alleged defalcation while in a fiduciary capacity and
fraud (basically, real property lost all its value during the recession and
was lost and beneficiary is now blaming the trustee). There is a mirror
case in probate court. The plaintiff in the probate court already got an
order entered granting relief from stay (it may not have been opposed
properly) more than 30 days before I was approached. Of course, if the
bankruptcy court rules the claims dischargeable, the probate litigation
will be for nothing. Since I have seen attempts to recover from debtors
due to the loss of equity during the recession, I would prefer to have a
bankruptcy judge rule on this especially because the probate action is
moving very slowly (threatened discovery hasn't commenced) and I don't want
this to be hanging over my clients' head for years. However, under FRBP
9027, my time to remove the probate action expired after 30 days following
the entry of the order lifting the stay. How do I stay the probate case --
the probate court refused to stay the action upon request of probate
counsel? Would a motion for reconsideration of order granting relief from
stay suffice? I recall that once the stay is lifted, it requires an
adversary proceeding to restore it. Has anybody done something like this
and/or has any suggestions?
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WRITING.
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
I was recently hired in a case to represent the debtor in an adversary proceeding regarding alleged defalcation while in a fiduciary capacity and fraud (basically, real property lost all its value during the recession and was lost and beneficiary is now blaming the trustee). There is a mirror case in probate court. The plaintiff in the probate court already got an order entered granting relief from stay (it may not have been opposed properly) more than 30 days before I was approached. Of course, if the bankruptcy court rules the claims dischargeable, the probate litigation will be for nothing. Since I have seen attempts to recover from debtors due to the loss of equity during the recession, I would prefer to have a bankruptcy judge rule on this especially because the probate action is moving very slowly (threatened discovery hasn't commenced)
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