Central District Consumer Bankruptcy Attorney's Association

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.
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
>>
>> * ***
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>>
>> ------------------------------
>> *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
>>
>> * ***
>> **
>>
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>>
>>
>>
>
>
Hello Philip:
The post was migrated from Yahoo.