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Vacating a Stipulation in Chapter 11
I agree with Gio. I would be surprised if a State court was allowed to
vacate a bankruptcy court's order though some kind of consent. I also wrote
a short article on these jurisdiction clauses a few days ago, it might help
you.
The post was migrated from Yahoo.
Usually, the Court that issued an order is the only one that can vacate
it. Courts usually have power to enforce and interpret their own orders.
Search in the plan for jurisdiction provisions, which may already provide
the answer.
Giovanni Orantes, Esq.*
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 2920
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
**Certified Bankruptcy Specialist, State Bar of California, Board of Legal
Specialization*
*Board Certified - Business Bankruptcy Law - American Board of Certification
*Board Certified - Consumer Bankruptcy Law - American Board of Certification
Commercial Litigation
Estate Planning
Outside General Counsel
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO
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Usually, the Court that issued an order is the only one that can vacate it. Courts usually have power to enforce and interpret their own orders. Search in the plan for jurisdiction provisions, which may already provide the answer.-- Giovanni Orantes, Esq.*Orantes Law Firm, P.C.3435 Wilshire Blvd. Suite 2920Los Angeles, CA 90010Tel: (213) 389-4362Fax: (877) 789-5776e-mail:
The post was migrated from Yahoo.
What is your basis for reconsideration of the orders approving the
stipulations? I understand the basis for the second stipulation might be
that it was not authorized by the debtor but is that all you got?
What is the reason for vacating the first stipulation? Based on what you
have said, it sounds fair. My guess is there are intervening facts between
the 1st stip and the 2nd stip which you are not aware of. I would squeeze
it out of my client. Otherwise, opposing counsel will let you know in his
opposition. That is not a good place to be.
Assuming this is all you got to go on, then file the motion to vacate the
second stip. Once that's done, file a motion to enforce the first stip.
What I would do is a second round of fact checking. Make your client send
you all correspondence between him and his former counsel. Request same
from former counsel. Request all correspondence from former counsel with/to
anyone.
Another pitfall is the Plan and confirmation order. What do they say about
the stipulation? If the stipulation is ratified, what are you going to do
then? Vacate the order confirming plan?
I could go on. For example, what has creditor done on reliance that
stipulations(s) and/or Plan were good? Has Debtor acted in such a way to
make his reliance justifiable?
Sincerely,
*Michael Avanesian, Esq. *
Simon Resnik Hayes, LLP
15233 Ventura Blvd., Suite 250
Sherman Oaks, CA 91403
Tel: 818.783.6251 | Cel: 818.817.1725
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On Mon, Jun 1, 2015 at 6:43 PM, Shannon Doyle
sdoyle@ebankruptcyassistants.com [cdcbaa] wrote:
>
>
> Debtor obtained a hard money loan secured by a 44 unit rental property.
> Debtor filed a 506(d) motion to avoid the lien. Debtor stipulated with
> lender that lien would be avoided as to the rental property but secured by
> an aerospace patent. As part of that stipulation lender was to reconvey
> the mortgage on the rental property. Lender never complied with
> reconveyance. Subsequently, without debtors knowledge his former attorney
> entered another stipulation with very confusing language indicating that
> there is still a lien the rental property (it is unclear why). What is the
> proper remedy for this situation? Can debtor file a motion to vacate both
> stipulations for breach and/or bad faith?
>
>
>
>
>
> [image: New Professional Pic2]
>
> Shannon A. Doyle
>
> *Attorney | Virtual Bankruptcy Assistant*
>
> *Phone: 855-378-4080 *
>
> *Fax: 562-249-8435 *
>
> [image: PetitionPartnD05bR08aP01ZL-Madison8a]
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What is your basis for reconsideration of the orders approving the stipulations? I understand the basis for the second stipulation might be that it was not authorized by the debtor but is that all you got?n? Based on what you have said, it sounds fair. My guess is there are intervening facts between the 1st stip and the 2nd stip which you are not aware of. I would squeeze it out of my client. Otherwise, opposing counsel will let you know in his opposition. That is not a good place to be.Assuming this is all you got to go on, then file the motion to vacate the second stip. Once that's done, file a motion to enforce the first stip.What I would do is a second round of fact checking. Make your client send you all correspondence between him and his former counsel. Request same from former counsel. Request all correspondence from former counsel with/to anyone.Another pitfall is the Plan and confirmation order. What do they say about the stipulation? If the stipulation is ratified, what are you going to do then? Vacate the order confirming plan?I could go on. For example, what has creditor done on reliance that stipulations(s) and/or Plan were good? Has Debtor acted in such a way to make his reliance justifiable?Sincerely,
The post was migrated from Yahoo.