Central District Consumer Bankruptcy Attorney's Association

consider asking for attorney fees in the opposition on the basis of
applicable State law which says that if they are entitled to legal fees, so
are you.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
shawnswhite
Sent: Sunday, February 21, 2010 2:49 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Frivolous Motion for Relief From Stay
I have a recently confirmed Ch 13 case. Debtor has been making all post
filing mortgage payments. The declaration of post filing, pre confirmation
deed of trust payments was made in a timely fashion with evidence attached
prior to the confirmation.
GMAC (1st mortgage) has filed a motion for relief from stay claiming they
haven't received any of the the preconfirmation payments (2 payments). They
never contacted the debtor or myself before filing and didn't review, or
chose to ignore, the filed declaration.
I don't anticipate too much difficulty in opposing this motion but my debtor
is broke and I am wondering how to go about (if possible) requesting
attorneys fees be awarded against GMAC for filing what appears to be a
frivolous motion based on poor record keeping on their part and for them not
bothering to even make a phone call to my office or check facts in any way.
Shawn
Message
consider asking for
attorney fees in the opposition on the basis of applicable State law which says
that if they are entitled to legal fees, so are you.


David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.

I would also suggest that in the face of the post confirmation motion for relief from stay that you file post petition preconfirmation declarations that would have been due but for the confirmation.
It may be that GMAC has an internal policy of not objecting to confirmation or the preconfirmation payment declarations, instead waiting until after and filing the relief from stay motions. At least that is my take on it, based upon similar instances in my cases.
It seems that if the debtor has filed the declarations upon which the parties rely for confirmation, res judicata and collateral estoppel apply to raising issues of the adequacy or amount of the payments made prior to confirmation confirmation. Some research would be needed to support that proposition.
Lou Esbin
>
> I would advise contacting the moving party's atty and advising him/her that all the payments have been tendered. Then I would recommend that you either e-mail or fax the latest (cumulative) mortgage payment declaration that shows that ALL (post-petition, pre-confirmation) payments have been tendered and to request in writing that the rfs motion be withdrawn. If they fail to withdraw timely, then you file a response (using the optional Response to RFS motion) with a declaration of your client. Then file and serve a separate Motion for Atty fees and costs for bringing a frivolous motion. >
>
> KEITH ALAN HIGGINBOTHAM
>
> Pedro Mayser, Office Manager
> THE LAW OFFICES OF KEITH ALAN HIGGINBOTHAM
> 255 S. Grand Avenue, Suite #2109
> Los Angeles, CA 90012-3045
> Phone: 213.620.0176
> Facsimile: 213.613.1200
>
> HigginbothamLaw@...
>
>
>
> -----Original Message-----
> To: cdcbaa@yahoogroups.com
> Sent: Sun, Feb 21, 2010 2:48 pm
> Subject: [cdcbaa] Frivolous Motion for Relief From Stay
>
>
>
>
> I have a recently confirmed Ch 13 case. Debtor has been making all post filing mortgage payments. The declaration of post filing, pre confirmation deed of trust payments was made in a timely fashion with evidence attached prior to the confirmation.
>
> GMAC (1st mortgage) has filed a motion for relief from stay claiming they haven't received any of the the preconfirmation payments (2 payments). They never contacted the debtor or myself before filing and didn't review, or chose to ignore, the filed declaration.
>
> I don't anticipate too much difficulty in opposing this motion but my debtor is broke and I am wondering how to go about (if possible) requesting attorneys fees be awarded against GMAC for filing what appears to be a frivolous motion based on poor record keeping on their part and for them not bothering to even make a phone call to my office or check facts in any way.
>
> Shawn
>

The post was migrated from Yahoo.

I would advise contacting the moving party's atty and advising him/her that all the payments have been tendered. Then I would recommend that you either e-mail or fax the latest (cumulative) mortgage payment declaration that shows that ALL (post-petition, pre-confirmation) payments have been tendered and to request in writing that the rfs motion be withdrawn. If they fail to withdraw timely, then you file a response (using the optional Response to RFS motion) with a declaration of your client. Then file and serve a separate Motion for Atty fees and costs for bringing a frivolous motion.
KEITH ALAN HIGGINBOTHAM
Pedro Mayser, Office Manager
THE LAW OFFICES OF KEITH ALAN HIGGINBOTHAM
255 S. Grand Avenue, Suite #2109
Los Angeles, CA 90012-3045
Phone: 213.620.0176
Facsimile: 213.613.1200
HigginbothamLaw@aol.com
To: cdcbaa@yahoogroups.com
Sent: Sun, Feb 21, 2010 2:48 pm
Subject: [cdcbaa] Frivolous Motion for Relief From Stay
I have a recently confirmed Ch 13 case. Debtor has been making all post filing mortgage payments. The declaration of post filing, pre confirmation deed of trust payments was made in a timely fashion with evidence attached prior to the confirmation.
GMAC (1st mortgage) has filed a motion for relief from stay claiming they haven't received any of the the preconfirmation payments (2 payments). They never contacted the debtor or myself before filing and didn't review, or chose to ignore, the filed declaration.
I don't anticipate too much difficulty in opposing this motion but my debtor is broke and I am wondering how to go about (if possible) requesting attorneys fees be awarded against GMAC for filing what appears to be a frivolous motion based on poor record keeping on their part and for them not bothering to even make a phone call to my office or check facts in any way.
Shawn
I would advise contacting the moving party's atty and advising him/her that all the payments have been tendered. Then I would recommend that you either e-mail or fax the latest (cumulative) mortgage payment declaration that shows that ALL (post-petition, pre-confirmation) payments have been tendered and to request in writing that the rfs motion be withdrawn. If they fail to withdraw timely, then you file a response (using the optional Response to RFS motion) with a declaration of your client. Then file and serve a separate Motion for Atty fees and costs for bringing a frivolous motion.
KEITH ALAN HIGGINBOTHAM

Pedro Mayser, Office Manager
THE LAW OFFICES OF KEITH ALAN HIGGINBOTHAM
255 S. Grand Avenue, Suite #2109
Los Angeles, CA 90012-3045
Phone: 213.620.0176
Facsimile: 213.613.1200

HigginbothamLaw@aol.com
To: cdcbaa@yahoogroups.com
Sent: Sun, Feb 21, 2010 2:48 pm
Subject: [cdcbaa] Frivolous Motion for Relief From Stay

I have a recently confirmed Ch 13 case. Debtor has been making all post filing mortgage payments. The declaration of post filing, pre confirmation deed of trust payments was made in a timely fashion with evidence attached prior to the confirmation.
GMAC (1st mortgage) has filed a motion for relief from stay claiming they haven't received any of the the preconfirmation payments (2 payments). They never contacted the debtor or myself before filing and didn't review, or chose to ignore, the filed declaration.
I don't anticipate too much difficulty in opposing this motion but my debtor is broke and I am wondering how to go about (if possible) requesting attorneys fees be awarded against GMAC for filing what appears to be a frivolous motion based on poor record keeping on their part and for them not bothering to even make a phone call to my office or check facts in any way.
Shawn
#AOLMsgPart_2_3e8b7014-7725-409b-a38b-53984aed91fd t
The post was migrated from Yahoo.

I have a recently confirmed Ch 13 case. Debtor has been making all post filing mortgage payments. The declaration of post filing, pre confirmation deed of trust payments was made in a timely fashion with evidence attached prior to the confirmation.
GMAC (1st mortgage) has filed a motion for relief from stay claiming they haven't received any of the the preconfirmation payments (2 payments). They never contacted the debtor or myself before filing and didn't review, or chose to ignore, the filed declaration.
I don't anticipate too much difficulty in opposing this motion but my debtor is broke and I am wondering how to go about (if possible) requesting attorneys fees be awarded against GMAC for filing what appears to be a frivolous motion based on poor record keeping on their part and for them not bothering to even make a phone call to my office or check facts in any way.
Shawn

The post was migrated from Yahoo.