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.