Doesn't the writ of possession divest your client of any property interest
other than possession, as to which a Court would likely grant relief from
stay? Shouldn't the BK have been filed before the writ was issued?
On Fri, Sep 28, 2012 at 11:10 PM, Alik Segal wrote:
> **
>
>
> Debtor needs to file bk asap to stop a writ of possession after sale. He
> sold his house in a short sale and now refuses to move. He states that he
> asked the real estate broker and was promised a short sale with a lease
> back and an option to buy back, but he received instead a straight forward
> short sale. Now the buyer has received a writ of possession that is stayed
> until Monday 10/1/12. Debtor had filed a title action and a TRO
> application in September to stay the writ. The TRO application was denied
> today 9/28/12. So I need to file before Monday.
>
> The overall plan is that the BK will stop the eviction and enable the
> debtor to litigate title while retaining possession. If and when debtor
> obtains title, his old loan will be resurrected and could be dealt with in
> bankruptcy.
>
> Debtor needs to decide now whether he will move out before filing. If he
> moves out and takes another personal residence, he will be able to modify
> the resurrected loan and receive a new loan with the principal equal to the
> fair market value. If debtor remains in the house, then he will not be
> able to modify the resurrected mortgage and will have to cure and pay the
> arrears on top of the regular payments.
>
> Chapter 11 is needed to modify the mortgage, but it is a severe
> administrative burden for this elderly self-employed debtor. And until he
> obtains title he does not need to modify the mortgage. I am thinking about
> filing it as a 13 and converting to 11 if and when debtor regains his title
> and resurrects the mortgage.
>
> I am not sure but I think that the eviction may raise distinct issues
> related to "personal residence" status. Giving up possession may be
> significant in the eviction context. Debtor could retain possession by
> using the house for storage until a renter can be found. Would it make his
> case weaker if he uses the house to store personal belongings, as opposed
> to business property? In the meantime he will take up personal residence
> elsewhere.
>
> Any suggestions, creative solutions, reality checks?
>
>
> --
> Alik Segal
>
Alik.Segal@gmail.com
> 310-362-6157
> California Central District
>
>
>
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
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Los Angeles, CA 90010
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Doesn't the writ of possession divest your client of any property interest other than possession, as to which a Court would likely grant relief from stay? Shouldn't the BK have been filed before the writ was issued?
On Fri, Sep 28, 2012 at 11:10 PM, Alik Segal <
Debtor needs to file bk asap to stop a writ of possession after sale. He sold his house in a short sale and now refuses to move. He states that he asked the real estate broker and was promised a short sale with a lease back and an option to buy back, but he received instead a straight forward short sale. Now the buyer has received a writ of possession that is stayed until Monday 10/1/12. Debtor had filed a title action and a TRO applicationin Septemberto stay the writ. The TRO application was denied today 9/28/12. So I need to file before Monday.
The overall plan is that the BK will stop the eviction and enable the debtor to litigate title while retaining possession. If and when debtor obtains title, his old loan will be resurrected and could be dealt with in bankruptcy.
Debtor needs to decide now whether he will move out before filing. If he moves out and takes another personal residence, he will be able to modify the resurrected loan and receive a new loan with the principal equal to the fair market value. If debtor remains in the house, then he will not be able to modify the resurrected mortgage and will have to cure and pay the arrears on top of the regular payments.
Chapter 11 is needed to modify the mortgage, but it is a severe administrative burden for this elderly self-employed debtor. And until he obtains title he does not need to modify the mortgage. I am thinking about filing it as a 13 and converting to 11 if and when debtor regains his title and resurrects the mortgage.
I am not sure but I think that the eviction may raise distinct issues related to "personal residence" status. Giving up possession may be significant in the eviction context. Debtor could retain possession by using the house for storage until a renter can be found. Would it make his case weaker if he uses the house to store personal belongings, as opposed to business property? In the meantime he will take up personal residence elsewhere.
Any suggestions, creative solutions, reality checks?-- Alik Segal
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