Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
I called the bankruptcy court to see if there was a petition filed to lift the stay to foreclose and the clerk told me there wasn't.    She also told me the case closed on 4/28/2009However, the Final Decree was not entered by the court until 7/29/2009.
 
I've read that until a Final Decree is issued, the bankruptcy case is not finished.   If that's so, the mortgage company foreclosed on the property on 7/13/2009  prior to the court entering a Final Decree  on 7/29/2009   in addition to publishing the sale in the paper.
 
In addition to all the other reasons the foreclosure was null and void, would this too invalidate it?
 
thanks
 
 
 
 

Quote 0 0
   The key question is whether or not a "DISCHARGE" was entered or if the BK
case was merely dismissed. If it was merely dismissed, you can refile and
stop the sale even if a judgment was entered but no sale has occurred yet.
   Even after the sale, in some states you have ten days before the title is
issued when you can still file a BK and stay everything pending a BK hearing.
   The fact the plaintiff never filed a motion to lift the stay probably means
the case was DISMISSED, so there was no need to file a motion to lift the
stay.
    Dismissals usually occur for failure to fill out the forms completely or
failure to do the mandatory counseling sessions in a timely manner or failure
to pay the filing fee in full.
    The key point is that if you get a "second bite at the apple" post judgment, make sure you list the judgment as unsecured and disputed.
List the property as unencumbered and homesteaded. This way if they
file a motion to lift the stay, it will not be automatically granted and there
will have to be an evidentiary hearing to see if they have a valid lien.
     If Mers was involved, you have an excellent chance of winning and
either saving the house or at least getting some cash back so you can
start over again. (the purpose of the HX exemption).
Quote 0 0

the trustee filed a motion to dismiss on 3/20/2009 .. the foreclosure sale was held on 7-13-2009 and the court entered a final degree on 7/29/2009.  This is what I've found on bankruptcy ...

Quote:

" You must get court approval before the property is sold.  Until a final decree has been issued in a bankruptcy filing, the property will be tied up.The final decree may not have been issued even though the bankruptcy debtor has received a bankruptcy discharge. Permission from the bankruptcy court must be sought even if the secured lender, usually a mortgage company, has filed a motion for relief from the automatic stay. If relief from the automatic stay was granted by the bankruptcy court it means that the creditor can force its rights under the state law, but the property is still controlled by the bankruptcy laws for all other people, including the debtor."
 


I guess it would hinge on  discharge vs dismissal ... in addition, there was no valid proof of claim submitted

Quote 0 0
Dear Cricket,
    That quote of yours is excellent. Where did you get it? I have a case
pending where that is exactly the issue.
MikeH
Quote 0 0

mike h wrote:
Dear Cricket,
    That quote of yours is excellent. Where did you get it? I have a case
pending where that is exactly the issue.
MikeH

 it'll take me a little bit, but I will find it for you ..

Quote 0 0
See In re Moralez, 128 BR 526 - Bankr. Court, ED Michigan 1991

Under 11 U.S.C. § 362(c)(2), the stay of judicial proceedings involving the debtor continues until the case is closed or dismissed, or until the discharge is entered, whichever is earliest.

Maybe helps?
Quote 0 0
I actually found this through several different searches

Quote:
Can Property Be Sold During Bankruptcy After A Motion For Relief From Stay Has Been Allowed?

Houses and other property can be sold while someone is in bankruptcy, but there are specific rules that must be followed when you do it. As Brett Weiss said in his article Can I Sell My House While I�m In Bankruptcy?, you must get court approval before property is sold. Until a Final Decree has been issued in a case, the property will be tied up. The Final Decree may not have been issued even though the bankruptcy debtor has received a bankruptcy discharge.

Permission from the bankruptcy court must be sought even if the secured lender, usually a mortgage company, has filed a Motion for Relief from Stay. If relief from stay was granted by the bankruptcy court, it means that the creditor can enforce it’s rights under state law, but the property is still controlled by the bankruptcy laws for all other people, including the debtor. So while a mortgage company can proceed with foreclosure after the court allowed the automatic stay lifted, the debtor would still have to file a Motion to Sell in a Chapter 13 bankruptcy case, or possibly a Motion to Abandon Property in a Chapter 7 bankruptcy case.

If you are in an open bankruptcy case and you are trying to sell a house before a foreclosure sale, don’t wait to ask the bankruptcy court for permission to sell or you might not have time to get a hearing. Speak to your lawyer as soon as possible to avoid finding yourself in a position where your house is foreclosed upon even though you have a buyer who is ready to close.



Quote:
How Long Is A Foreclosure While In Chapter 7 bankruptcy
Author: Smith Bryan

Houses and other property can be sold while someone is in bankruptcy, but there are specific rules that must be followed when you do it.  You must get court approval before the property is sold. Until a final decree has been issued in a bankruptcy filing, the property will be tied up.  The final decree may not have been issued even though the bankruptcy debtor has received a bankruptcy discharge. Permission from the bankruptcy court must be sought even if the secured lender, usually a mortgage company, has filed a motion for relief from the automatic stay. If relief from the automatic stay was granted by the bankruptcy court it means that the creditor can force its rights under the state law, but the property is still controlled by the bankruptcy laws for all other people, including the debtor.

In most cases, a bankruptcy will usually delay any foreclosure process. This is because when a bankruptcy case is filed, a restraining order is entered under 11 USC 362 called the automatic stay, which prevents any further debt collection efforts against debtors or their property. So if someone is facing foreclosure, a bankruptcy will immediately freeze the process. This may be permanent, as in most Chapter 13 cases, or it may be temporary, as in most Chapter 7 cases. The reason most Chapter 7 restraining orders are not permanent is due to the fact most Chapter 7 cases are over within four months time, and or, the lender will file a motion for "relief of the automatic stay" which will remove the restraining order against that lender on the property.

The typical foreclosure is four months. Add to this the 2 to 4 months of being in default before the process is started, and most people generally will not be foreclosed on in under eight months. After foreclosure, the lenders still needs to evict the debtor, which may take another month or it so if you add a bankruptcy to the nine-month foreclosure process, it's not surprising to see debtors in their homes for a year or more from when they last stopped paying. Moreover, since the bankruptcy has erased the personal liability of the debtor, there is no recourse the lender has against the borrower even if the foreclosure results in less than full payment on the loan. Additionally since some states have the one action rule, even post bankruptcy claims arising from staying in the property without paying will not result in any liability to the debtor.

When a person is in bankruptcy, the lender's choice is to non- judicially foreclose and forever give up their claim for money damages against the debtor, or, to judicially foreclose in a court of law and obtain a deficiency judgment against the borrower. Virtually all foreclosures are non-judicial foreclosures since the judicial foreclosure is very time-consuming, and even when the lender prevails, the debtor still has a one-year right of redemption, whereby the borrower can come back within one year, tender the amount due, and get their property back.

So if you are surrendering your house in Chapter 7, you can pretty much expect to stay there for at least six months to a year from your last mortgage payment. This monthly savings truly gives debtors a bankruptcy fresh start.

http://www.weathat.com/how-long-is-a-a3365.html





Quote 0 0

FnDoomed wrote:
See In re Moralez, 128 BR 526 - Bankr. Court, ED Michigan 1991

Under 11 U.S.C. § 362(c)(2), the stay of judicial proceedings involving the debtor continues until the case is closed or dismissed, or until the discharge is entered, whichever is earliest.

Maybe helps?


Quote:

 Under 11 U.S.C. § 362(c)(2), the stay of judicial proceedings involving the debtor continues until the case is closed or dismissed, or until the discharge is entered, whichever is earliest. Thus, Mrs. Moralez could proceed with her nondischargeability action in state court after the stay expires by law. Denial of the motion to lift the stay would only mean that Mrs. Moralez would have to wait the short time for the stay to expire in order to bring her nondischargeability claim in state court. In this case, there does not appear to be any reason to require her to wait.


it'll take more research, but just from a brief reading, it appears this relates to  "judicial proceedings" not the sale of property, so there still might be hope there



Quote 0 0
Write a reply...