re: Pending Adversary to Avoid Junior Lien after Junior Lien holder receieved Relief from the Automatic Stay
Posted: Tue Apr 22, 2014 12:49 pm
To: cdcbaa@yahoogroups.com
X-Yahoo-Newman-Id: groups-system
Listmates,
I have a fairly unique fact pattern that I hope I can get some guidance on. This is a Judge Zurzolo Chapter 13 case.
We filed the case and indicated in the Chapter 13 plan that we would be filing a complaint to avoid the junior lien on the Debtor's residence.
Two months after the case was filed the junior lienholder ("Creditor") filed a Motion for Relief indicating that payments were not current and that the note ballooned pre-petition. Payments were not made by Debtor (she is not working and could not afford them).
We immediately initiated our adversary proceeding to avoid the junior lien after receiving a copy of the Motion for Relief.
In our response to the Motion for relief, we indicated that the Motion for Relief was premature and that there was a pending adversary complaint to avoid Creditor's lien, therefore Debtor was not obligated to make the payments to Creditor until resolution of the adversary proceeding.
The Judge granted the Creditor relief and indicated that payments had to be current unless the Court had actually made a determination that creditor was wholly unsecured.
We then filed a TRO to stop a pending foreclosure sale scheduled for approximately one week after relief was granted with an application for order shortening time indicating that the Property would be sold within a week.Creditor from going forward with the sale of the property until resolution of the adversary proceeding.
The Application for order shortening time was denied. The property was sold at foreclosure but creditor simply made a full credit bid. There was not a BFP.
What I want to know at this stage is whether our Adversary proceeding is absolutely moot given that the property has now been foreclosed by Creditor. We want to provide our client with all possible options to save her property but do not want to continue to prosecute an adversary proceeding if there is no legal basis to do so. Our client has not yet provided us with authority to voluntarily dismiss the adversary proceeding so we are in a bit of a bind.
Any thoughts, comments, or help would be greatly appreciated.
David S. Shevitz, Esq.
Ure Law Firm
811 Wilshire Blvd. Suite 1000
Los Angeles, CA 90017
Telephone: (213) 202-6070
Facsimile: (213) 202-6075
Email: david@urelawfirm.com
Website: www.urelawfirm.com
The post was migrated from Yahoo.
X-Yahoo-Newman-Id: groups-system
Listmates,
I have a fairly unique fact pattern that I hope I can get some guidance on. This is a Judge Zurzolo Chapter 13 case.
We filed the case and indicated in the Chapter 13 plan that we would be filing a complaint to avoid the junior lien on the Debtor's residence.
Two months after the case was filed the junior lienholder ("Creditor") filed a Motion for Relief indicating that payments were not current and that the note ballooned pre-petition. Payments were not made by Debtor (she is not working and could not afford them).
We immediately initiated our adversary proceeding to avoid the junior lien after receiving a copy of the Motion for Relief.
In our response to the Motion for relief, we indicated that the Motion for Relief was premature and that there was a pending adversary complaint to avoid Creditor's lien, therefore Debtor was not obligated to make the payments to Creditor until resolution of the adversary proceeding.
The Judge granted the Creditor relief and indicated that payments had to be current unless the Court had actually made a determination that creditor was wholly unsecured.
We then filed a TRO to stop a pending foreclosure sale scheduled for approximately one week after relief was granted with an application for order shortening time indicating that the Property would be sold within a week.Creditor from going forward with the sale of the property until resolution of the adversary proceeding.
The Application for order shortening time was denied. The property was sold at foreclosure but creditor simply made a full credit bid. There was not a BFP.
What I want to know at this stage is whether our Adversary proceeding is absolutely moot given that the property has now been foreclosed by Creditor. We want to provide our client with all possible options to save her property but do not want to continue to prosecute an adversary proceeding if there is no legal basis to do so. Our client has not yet provided us with authority to voluntarily dismiss the adversary proceeding so we are in a bit of a bind.
Any thoughts, comments, or help would be greatly appreciated.
David S. Shevitz, Esq.
Ure Law Firm
811 Wilshire Blvd. Suite 1000
Los Angeles, CA 90017
Telephone: (213) 202-6070
Facsimile: (213) 202-6075
Email: david@urelawfirm.com
Website: www.urelawfirm.com
The post was migrated from Yahoo.