Continuing MSJ Hearing - Stay violation?
Posted: Sat Nov 04, 2017 11:45 am
Thank you for this.
On Nov 2, 2017 9:28 PM, "Giovanni Orantes" wrote:
> I found the following, but it's from Massachusetts:
>
> I have previously recognized the *limited* right of a mortgagee to
> continue a pending foreclosure sale: a single continuance of a foreclosure
> sale following the filing of a petition is not a violation of the automatic
> stay if, before the continued sale date, the creditor filed an appropriate
> motion for relief from stay. *In re Heron Pond, LLC,* 258 B.R. 529, 530
> (Bankr.D.Mass.2001). In so holding, and with guidance from the Supreme
> Court's decision in *Strumpf,*3 I emphasized that this departure from
> strict compliance with 362(a)(1) was temporary, a place-holding measure
> intended only to secure the status quo for a brief time until a motion for
> relief from stay could be filed. Here, the mortgagee and its counsel did
> not move for relief from the automatic stay before the date to which they
> initially postponed the sale. It follows that the initial continuance was a
> violation of the automatic stay. No relief from the stay having been
> obtained for the subsequent continuances, they too were violations of the
> stay. A mortgagee's right to continue a foreclosure sale notwithstanding
> the automatic stay is a limited exception. To permit an indefinite number
> of continuances without judicial review of a prompt motion for relief from
> the stay is, in essence, to rewrite the statute, to expand a minor judicial
> accommodation for the extraordinary cases in which it was born into a
> loophole large enough to accommodate the proverbial Mack truck. On the
> undisputed and uncontroverted *12 facts, the Defendant's five continuances
> were, as a matter of law, violations of the automatic stay.
>
> *In re Lynn-Weaver*, 385 B.R. 7, 1112 (Bankr. D. Mass. 2008).
>
>
>
>
> On Thu, Nov 2, 2017 at 8:39 PM, Raymond H. Aver wrote:
>
>> Gio:
>>
>> I dont see a continuance as a violation. Not an action to pursue a
>> prepetition claim. Heck, foreclosure trustees routinely continue sales
>> after a bankruptcy filing.
>>
>>
>> Raymond H. Aver, Esquire
>>
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>> Certified Bankruptcy Specialist
>> State Bar of California
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>>
>> On Nov 2, 2017, at 8:34 PM, Giovanni Orantes wrote:
>>
>> Is it a violation to continue a hearing on a motion for summary judgment
>> if a notice of stay is given to the Court before the hearing on the motion
>> for summary judgment? I need some case law on this.
>>
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