Postpetition rights of Lender re: mistaken prepetition tr=

Post Reply
Yahoo Bot
Posts: 22904
Joined: Sun Oct 18, 2020 11:38 pm


CCP 338(d) SOL is 3 years for mistake
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, Suite 640
Woodland Hills, California 91364-2226
Telephone: (818) 226-1205
Facsimile : (818) 226-1213
THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND
CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY
BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND
CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN
AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY
NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW,DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED.
IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY.
THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Sat, December 10, 2011 3:37:43 PM
Subject: Re: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition
trust deed reconveyance?
Might there also be a 4 year SOL for actions based upon mistake [i.e., evenwithout the BK issues, is it too late for the former lender to assert a
successful cause of action]?
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, Suite 640
Woodland Hills, California 91364-2226
Telephone: (818) 226-1205
Facsimile : (818) 226-1213
THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND
CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY
BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND
CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN
AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY
NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW,DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED.
IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY.
THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Sat, December 10, 2011 3:08:47 PM
Subject: RE: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition
trust deed reconveyance?
Mark:
Were missing some facts here I think: what position was the reconveyed deed of
trust before it was reconveyed? What are the timelines, e.g., is the bankruptcy
filed yet, is it over? I take it no cancelation has been recorded yet. Also,
what are the values of the property, the balances on the deeds of trust? Im
just not getting a complete picture here, although it sure seems like an
interesting problem.
Speaking in general: There are no relief from stay issues if they just wait for
the bankruptcy to be over. Then the discharge injunction applies as to collecting the debt, but not on the enforcement of its property interest in the
collateral. That can all be addressed in state court. The collateral is no
longer property of the estate.
If there is equity in the property sufficient to fight with them, Ican get a great deal for your client even if you cannot completely capitalize on
their mistake. That depends to some degree whether the reconveyance was covered
by title insurance.
Steve Lever
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Mark
Jessee
Sent: Friday, December 09, 2011 11:40 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust
deed reconveyance?
Lender (acting as both trustee and beneficiary of the deed of trust) recorded a
full reconveyance of security interest 5 years prior to chap 7 petition being
filed. There were no subsequent recorded liens. Postpetition, lender claims this
reconveyance was executed and recorded in error. The property is underwaterrelated to the first trust deed so a trustee is not interested in administering
it. While recording a cancellation of the full reconveyance pursuant to CA Civil
Code 3412 and Duley v. Westinghouse Electric Corp. 97 Cal.App.3d 430 (1979)
may have been an available option prepetition, doing so postpetition violates
bankruptcy code 362(a)(4) and the 362(b)(3) exception does not apply. Does the
lender have an equitable remedy under the bankruptcy code to somehow cancel the
reconveyance and revive the erstwhile unenforceable trust deed security
interest?
Can the lender successfully file an adversary complaint or a motion for relief
from the automatic stay allowing it to seek an order in state court, allowing it
to record a cancellation of the full reconveyance based upon equitable grounds?
I cannot find any bankruptcy case law addressing the issue of a creditor'spostpetition right to seek cancellation of a prepetition mistakenly recorded
reconveyance in a no asset case.
Mark Jessee
________________________________
No virus found in this message.
Checked by AVG - www.avg.com
Version: 10.0.1415 / Virus Database: 2102/4071 - Release Date: 12/09/11
CCP 338(d) SOL is 3 years for mistake Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, Suite 640Woodland Hills, California 91364-2226Telephone: (818) 226-1205Facsimile : (818) 226-1213THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS
STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.From: Kenneth Jay Schwartz <kennethjschwartz@yahoo.com>To: cdcbaa@yahoogroups.comSent: Sat, December 10, 2011 3:37:43 PMSubject: Re: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust deed reconveyance?

Might there also be a 4 year SOL for actions based upon mistake [i.e., even without the BK issues, is it too late for the former lender to assert a successful cause of action]? Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, Suite 640Woodland Hills, California 91364-2226Telephone: (818) 226-1205Facsimile : (818) 226-1213THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE
HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.From: Steven B. Lever <sblever@leverlaw.com>To: cdcbaa@yahoogroups.comSent: Sat, December 10, 2011 3:08:47 PMSubject: RE: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust deed reconveyance?


The post was migrated from Yahoo.
Top
Yahoo Bot
Posts: 22904
Joined: Sun Oct 18, 2020 11:38 pm


Might there also be a 4 year SOL for actions based upon mistake [i.e., evenwithout the BK issues, is it too late for the former lender to assert a
successful cause of action]?
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, Suite 640
Woodland Hills, California 91364-2226
Telephone: (818) 226-1205
Facsimile : (818) 226-1213
THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND
CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY
BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND
CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN
AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY
NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW,DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED.
IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY.
THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Sat, December 10, 2011 3:08:47 PM
Subject: RE: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition
trust deed reconveyance?
Mark:
Were missing some facts here I think: what position was the reconveyed deed of
trust before it was reconveyed? What are the timelines, e.g., is the bankruptcy
filed yet, is it over? I take it no cancelation has been recorded yet. Also,
what are the values of the property, the balances on the deeds of trust? Im
just not getting a complete picture here, although it sure seems like an
interesting problem.
Speaking in general: There are no relief from stay issues if they just wait for
the bankruptcy to be over. Then the discharge injunction applies as to
collecting the debt, but not on the enforcement of its property interest in the
collateral. That can all be addressed in state court. The collateral is no
longer property of the estate.
If there is equity in the property sufficient to fight with them, Ican get a great deal for your client even if you cannot completely capitalize on
their mistake. That depends to some degree whether the reconveyance was covered
by title insurance.
Steve Lever
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Mark
Jessee
Sent: Friday, December 09, 2011 11:40 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust
deed reconveyance?
Lender (acting as both trustee and beneficiary of the deed of trust) recorded a
full reconveyance of security interest 5 years prior to chap 7 petition being
filed. There were no subsequent recorded liens. Postpetition, lender claims this
reconveyance was executed and recorded in error. The property is underwaterrelated to the first trust deed so a trustee is not interested in administering
it. While recording a cancellation of the full reconveyance pursuant to CA Civil
Code 3412 and Duley v. Westinghouse Electric Corp. 97 Cal.App.3d 430 (1979) may
have been an available option prepetition, doing so postpetition violates
bankruptcy code 362(a)(4) and the 362(b)(3) exception does not apply. Does the
lender have an equitable remedy under the bankruptcy code to somehow cancel the
reconveyance and revive the erstwhile unenforceable trust deed security
interest?
Can the lender successfully file an adversary complaint or a motion for relief
from the automatic stay allowing it to seek an order in state court, allowing it
to record a cancellation of the full reconveyance based upon equitable grounds?
I cannot find any bankruptcy case law addressing the issue of a creditor'spostpetition right to seek cancellation of a prepetition mistakenly recorded
reconveyance in a no asset case.
Mark Jessee
________________________________
No virus found in this message.
Checked by AVG - www.avg.com
Version: 10.0.1415 / Virus Database: 2102/4071 - Release Date: 12/09/11
Might there also be a 4 year SOL for actions based upon mistake [i.e., even without the BK issues, is it too late for the former lender to assert a successful cause of action]? Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, Suite 640Woodland Hills, California 91364-2226Telephone: (818) 226-1205Facsimile : (818) 226-1213THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE
HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.From: Steven B. Lever <sblever@leverlaw.com>To: cdcbaa@yahoogroups.comSent: Sat, December 10, 2011 3:08:47 PMSubject: RE: [cdcbaa] Postpetition rights of Lender re: mistaken prepetition trust deed reconveyance?


The post was migrated from Yahoo.
Top
Post Reply

Return to “Yahoo Old Posts”