What Homeowners in Foreclosure Must Know About TRO and Injunction

06 Sunday May 2018

Posted by BNG in Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, Restitution, State Court, Your Legal Rights

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Appeal, Foreclosure, foreclosure defense, homeowners, injunction, Law, Pro se legal representation in the United States, TRO

Very few people fully appreciate the powerful and flexible remedy offered by an injunction. Injunctions are extraordinary, both in terms of their timing and their effectiveness. Certain injunctions are issued with a rapidity otherwise unknown in the American legal system. Injunctions frequently have consequences so sweeping that they effectively shut down operating businesses or otherwise affect dramatically the rights of the parties involved in an irreversible manner – even when the requested injunction is refused. Two illustrative examples of the power of injunctions which have recently been seared into the American consciousness are the injunction against further ballot counting in Florida following the 2001 presidential election and the injunction ordering Napster, the Internet music swapping service, to cease and desist from operating.

Simply put, injunction proceedings are high stakes poker. If a party plays its first hand wrong, the game may be over before another hand is dealt. This article will explore the remedies available in an injunction proceeding, the timing implications involved in either seeking or defending an injunction, and the particular hallmarks incident to various kinds of injunctions.

The Remedies Available Through An Injunction

The only limitation on remedies available through an injunction is the creativity of counsel or of the judge hearing the case. Generally speaking, there are two kinds of relief available through an injunction: prohibitory and mandatory. A prohibitory injunction is the most common form of injunction, and directs a party to refrain from acting in a certain manner. Examples of a prohibitory injunction are cease and desist orders (entered against Napster), or an order stopping a bulldozer prior to the razing of an historic building. Injunctions can also be mandatory, however, in which case the court directs a party to take affirmative action. Examples of this kind of injunction were seen in the school integration and busing cases prevalent several decades ago. Whether prohibitory or mandatory, the only limit on the power of the trial judge (other than the role of appeals courts) is that the remedy selected be reasonably suited to abate the threatened harm and that the court be in a position to enforce its own order and assess a party’s compliance.

The Timing Implications Involved In Seeking Or Defending An Injunction

Similar to the type of remedy, courts and parties have significant flexibility regarding timing, so long as the party seeking an injunction is not guilty of unreasonable delay in requesting the court’s assistance. What constitutes “unreasonable” delay will vary from case to case. There are three kinds of injunction requests, which vary by the timing of the request. The first is called an ex parte injunction (also sometimes popularly known as a temporary restraining order, or TRO. The technical name for such an injunction in the Pennsylvania Rules of Civil Procedure is “special relief”). The other two kinds of injunctions are preliminary injunctions and permanent injunctions.

Ex Parte Injunctions

Ex parte injunctions are appropriate only when the threatened harm is so immediate and so severe that even giving the other party notice of the application for the injunction and an opportunity to be heard in opposition is not practical. Ex parte literally means one-sided. A party seeking the entry of an ex parte order (without the involvement of or even notification to the other party most directly affected) has an exceedingly heavy burden in convincing a judge the emergency warrants such extreme action. By definition, there will not be even minimal due process afforded to the affected party; therefore, the courts’ rules require certain safeguards to protect it. For example, in state court in Pennsylvania, an interim order granted on an ex parte basis may not remain in effect for more than five days without the commencement of a hearing. Furthermore, the party seeking such an injunction also has the obligation to post a monetary bond which the judge deems sufficient to compensate the affected party if it is later determined that the ex parte injunction should not have been granted.

During an ex parte injunction hearing, there is frequently no actual hearing. Although a judge is free to insist upon a full evidentiary presentation, he or she usually permits these applications to be presented in chambers. The presentation of such an application represents one of the only instances in our legal system where one party’s attorney has the opportunity to sit down with the judge and render an entirely one-sided version of the matter before the court. Although the lawyer is acting as an advocate for his client, he or she must be scrupulously honest and avoid exaggerating the circumstances. Engaging in any form of overreach throughout this onesided process can have disastrous effects on both counsel and client, once the adversely-affected party is represented and has an opportunity to tell its side of the story. For obvious reasons, judges react very poorly to being sandbagged.

There is no requirement that a party seeking injunctive relief make a request for ex parte relief. Instead, because judges are very reluctant to grant such requests, and given the heavy burden involved in all actions for injunctions, it’s wise for a client not to risk its credibility before the court by asking for ex parte injunctive relief unless it is truly necessary. Counsel will advise requesting ex parte relief only where circumstances are very favorable.

Preliminary Injunctions

A preliminary injunction represents the most common form of injunctive relief requested. A preliminary injunction differs from an ex parte injunction in that the affected party is given notice that the application has been filed and has an opportunity to appear and be heard at a formal hearing where both parties may present evidence. Unlike ex parte injunction practice, a preliminary injunction almost always involves an evidentiary presentation in open court. Although not a full-blown trial, these hearings are critically important and set the stage for any litigation to come. In many cases, these hearings – and the judge’s reaction to them – constitute the entirety of the litigation.

More often than not, preliminary injunction hearings are conducted without the benefit of a significant amount of time to prepare and without the benefit of discovery, through which documents and testimony from the other side and its witnesses can be obtained prior to the hearing. Therefore, unless the party seeking the injunction is certain it fully understands the case and is completely prepared to present its case at hearing, it is a good idea to attempt to secure a court order to allow for limited discovery in preparation for the hearing to be conducted on an expedited basis, sometimes the very day before the hearing.

At the hearing, the party seeking the injunction has the burden of convincing the judge of a number of things. (Injunction requests are presented to a judge sitting without a jury. Therefore, the more counsel knows about the judge, including his or her political and ideological leanings, the better). Among the elements which must be proven by the party seeking the injunction are: (1) it has no adequate remedy other than an injunction (such as money damages); (2) truly irreparable harm will occur in the absence of an injunction; (3) it is more likely than not that the moving party will prevail on the underlying merits when the matter ultimately goes to trial; (4) the benefit to the party seeking the injunction outweighs the burden of the party opposed to the injunction; and (5) the moving party’s right to the relief sought is clear.

Although these are somewhat flexible – even vague – standards, the judge must be satisfied that all of these elements have been satisfactorily proven prior to granting an injunction. Needless to say, it is easier for the defendant to argue that one or more of these five elements has not been satisfactorily proven than it is for the moving party’s lawyer to argue that all five have been proven. The law sets such exacting standards because the consequences of an injunction can be so dramatic.

The Role of the Injunction Bond

The purpose of the injunction bond is to protect the party against whom the injunction has been entered in the event it is later determined that the injunction should not have been granted. Assuming the judge is persuaded by the proof at the hearing and is willing to grant an injunction, a determination as to the appropriate amount for the injunction bond must be made. The party seeking the injunction will predictably argue that its proof has been so strong that only a nominal bond should be required. Conversely, the adversary will argue that only a significant bond will be adequate to protect his or her client. The judge must balance these competing arguments. Particularly in the event that the judge had any reservation regarding the strength of the moving party’s case, the setting of the bond is another manner in which he or she may protect the interests of the party to be enjoined. There are circumstances where the bond is so sizable that the moving party, which has successfully demonstrated its entitlement to an injunction, will not or cannot satisfy the bonding requirement. In such a case the injunction will not become effective: No bond, no injunction. Thus, it is possible that a party can lose on the merits at the hearing, but never actually be enjoined due to its adversary’s failure to post the required bond.

The Role of the Appellate Court

Most court orders are not subject to an appeal until the case is over in all respects. Orders affecting injunctions, however, are exceptions to this rule. A party dissatisfied with a judge’s decision regarding an injunction – whether that decision grants, denies, modifies, dissolves or otherwise affects an injunction – has an immediate right to appeal that judge’s ruling in both the state or the federal court systems. However, although an appeal is available, it will usually prove extremely difficult to overturn the trial judge’s decision because of the manner in which appellate courts review decisions concerning injunctions. Furthermore, in all but the rarest of occasions, the injunction will remain in place throughout the appeal process, which can itself be lengthy.

Essentially, the court system recognizes that decisions involving injunctions are necessarily made in a somewhat subjective manner and are also made under sometimes severe time constraints. Appellate courts therefore defer to trial judges’ findings and generally believe that the judge who heard the evidence first-hand is in the best position to evaluate the case. As a result, the standard on appeal is very narrow: The trial judge’s decision will be upheld if there is any evidence in the record to support the decision. It doesn’t matter whether the appellate judges would have reached the same decision or not. The thinking is that the trial court should exercise its discretion in the first instance and, if there is more than one plausible interpretation of the evidence, the trial court’s acceptance of any particular interpretation cannot be an abuse of that discretion.

Permanent Injunctions

There is no requirement that a party seeking permanent injunctive relief first request either ex parte or preliminary relief. A permanent injunction may be sought as part of the full trial on the merits in an action, regardless of the outcome of prior proceedings in the case. In reality, however, many injunction cases do not proceed this far because, as previously indicated, the earlier proceedings (the granting or refusal of an ex parte or preliminary injunction) frequently alter the landscape so significantly that further proceedings are never pursued.

Sometimes, however, a permanent injunction is sought following previous proceedings. A permanent injunction may be sought, for example, where a party has been dissatisfied with the outcome of a preliminary injunction proceeding, but remains adamant about securing its rights. With the chances of a successful appeal so low, either the winner or the loser at the preliminary injunction level may elect to press on with discovery and attempt to convince the trial judge to change his or her decision after hearing all of the evidence. (Naturally, the judge’s first impression is always hard to overcome.) As with any order affecting an injunction, a dissatisfied party may appeal from any order entered in consideration of a request for permanent injunction. With a fully developed trial record, the appellate court will be somewhat less deferential to the trial court’s conclusion, yet a successful appeal remains difficult.

Injunctions are particularly powerful and flexible tools, which can have dramatic consequences to the parties involved. Homeowners can use injunction to delay moving out of the property while wrongful foreclosure Appeal is pending. A Homeowner seeking an injunction or attempting to defend against one should be well versed how these procedures works, if you are litigating Pro Se, or Secure counsel familiar with the intricacies of injunction practice.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

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How Homeowners Can Avoid Foreclosure Rescue Fraud Scams

25 Wednesday Apr 2018

Posted by BNG in Foreclosure Crisis, Foreclosure Defense, Fraud, Judicial States, Loan Modification, Mortgage fraud, Mortgage mediation, Non-Judicial States, Scam Artists, Your Legal Rights

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avoid foreclosure, Foreclosure, Foreclosure Crisis, foreclosure defense, Foreclosure Rescue Fraud, fraud prevention, HAMP, homeowners, Loan Modification, loan modification specialists, Making Home Affordable, Mortgage Coupon, Scam Artists

The most devastating foreclosure rescue fraud scams are those that not only promise a modification, but also trick homeowners into believing the lender has agreed to the terms. The party then instructs the homeowner to pay the “new” modified mortgage payments to them, and they will forward the payment to the lender. In reality, the third party takes the payments and the money never reaches the lender. Homeowners are often blindsided by foreclosure notices after many months of believing they are paying the “new” payments to the lender. The scammers often use copies of government logos and have names that are similar to real government programs.

“Your modification is approved! Send us your new payments”
Operation asserts the homeowner has been approved for a modification then steals the homeowner’s “new” mortgage payments.

In one heartbreaking example, a woman from Lindenhurst, New York, received a flyer in the mail in early 2013 with the header “NOTICE OF HUD RELIEF.” Believing the flyer came from the government, she called the number on the flyer, and explained that she had tried working with her lender, but had no success. The third party told her that the lender was not being cooperative because they really just wanted to foreclose on her.

After sending the third party personal financial information, the homeowner quickly received a call back with some good news: they told her she was qualified for “HAMP through Making Home Affordable.” The homeowner was told she now had a mortgage that was a thousand dollars less than her current one, but this was a lie. Then the party told her there was one other thing she had to do before paying the new mortgage payment – pay a “reinstatement fee” of $6,000 that her lender required. Believing it was the final hurdle to reach relief, she sent in the $6,000. Then in March, April and May 2013, she made her new “trial payments” to the third party. They encouraged the homeowner to let them know when she sent the check so they could contact her lender with a tracking number.

Each month the homeowner received a “Mortgage Coupon” with what appeared to be various government logos on it, including the Making Home Affordable and Treasury logos. The homeowner stayed in close contact with the third party, diligently sending the checks.

In May 2013, the homeowner received a call from her lender, telling her she owed almost $30,000. She explained that she had received a loan modification and had already paid the reinstatement fee along with three mortgage payments. The lender representative told the homeowner that she may have gotten caught in a scam. Frantically, the homeowner called her main contact at the operation to which she had been sending her checks. The phone number was disconnected.
After losing almost $12,000, the homeowner is now facing foreclosure.

STATE LAWS

Ensure that Homeowners Are Covered Under State Laws Targeting Foreclosure Rescue Fraud: Many states have passed new laws to address foreclosure rescue scamming. However, some of these laws defined “homeowners” that the law was designed to protect too narrowly. For example, some state laws limit coverage to homeowners who are in default or foreclosure, and fail to reach many homeowners who are defrauded seeking to refinance their mortgage or are seeking mortgage relief because loss of job or unexpected medical costs. It is therefore important that state laws targeting foreclosure rescue fraud define homeowners broadly to cover fraud at any stage of the process.

As the foreclosure crisis grew, foreclosure rescue fraud – scams designed to capitalize on homeowners facing foreclosure by extracting thousands of dollars in exchange for empty promises of assistance – exploded and increased the pain of these homeowners. The proliferation of this type of fraud is not surprising. Homeowners with financial difficulties desperately need to find help to keep their homes and are vulnerable to scam artists posing as loan modification specialists, for example. Scam operators blanket television, radio, newspapers, and the internet with advertisements in English and Spanish, and also rely on street flyers, signs, billboards, and direct mail solicitation.

This saturation marketing, often filled with lies and exaggerations, plays on the trust of distressed homeowners. Scammers use high-pressure sales tactics and false guarantees of success to attract homeowners and to extract large upfront cash payments from homeowners, and then typically do little or no work to obtain the relief promised, essentially abandoning these homeowners. The homeowners not only lose the money they paid to the scam operation, but fall deeper into default and lose valuable time that could have been spent negotiating directly with their mortgage servicer or by going to free a HUD-approved housing counseling agency with true expertise in assisting homeowners in trying to save their homes.

As the foreclosure crisis was peaking, these scams replaced predatory lending as a major problem in the housing finance industry and scams resulted in what was known as the “second wave” of the foreclosure crisis. Indeed, many predatory lending operations morphed into foreclosure rescue scam entities.

“We volunteer all our hours with no payment.”

Alleged “Non-profits” Referring Homeowners to “Law Groups”

Attorney involvement in scams is growing and appears to be an effective means of ensnaring victims, but some homeowners still approach attorneys with skepticism. Attorneys, or someone pretending to be affiliated with an attorney, attempt to ease this skepticism by involving a “non-profit.” Anyone involved in preventing foreclosure or foreclosure rescue fraud knows the best resource for homeowners is a FREE, HUD – approved housing counseling agency.

The problem is that not every organization who claims to fit that description actually does. Some “non-profits” operate as lead generation agencies, gaining the trust of vulnerable homeowners. A search for “.org” in the Database produces over 1400 complaint hits. Homeowners meet with these “non-profits” and things appear to be in order. They aren’t asking for any money, the people seem very nice, and they begin to look over various mortgage documents, free of charge. Providing what appears to be a free service, the “non-profit” can make the homeowner feel at ease and also invested in the process. Once the homeowner is invested, the next level of the scam begins.

One homeowner from Rosedale, New York, began working with one of these “non-profits” in early 2013. She had received a flyer in the mail with the headline, “Economic Stimulus Mortgage Notification” that read, in part: “You are hereby notified that the property at (her address) has been pre-selected for a special program by the Government Insured Institutions. In addition, this property is pre-qualified for an Economic Advantage Payment or Principal Reduction Program, designed to bring your house payments current for less than you owe or your principle balance down. There are no restrictions on equity, credit ratings, or mortgage delinquencies.” The flyer said to contact “Your National non-profit representative” because this is the “last attempt to assist you with your financial situation.”

The homeowner was in need of a modification, so she called the “non-profit” listed on the top of the flyer. After working with the “non-profit” for a while, they told her that they did “all that they could,” and she needed to talk to “(Name withheld) Law Group.” This “Law Group” advertised that they “fight the bank.” They assured her that nothing could happen to her home as long as they were defending her, saying “(her lender) will not take her case until 2016,” giving her some much needed breathing room. After paying four thousand dollars to the “Law Group” and following weeks of empty promises, she was blindsided by a letter telling her that her mortgage was put into foreclosure just a few months after she began working with the “non-profit.”

To keep skeptical homeowners on the hook, the “non-profit” will stay involved throughout the process, assuring the vulnerable homeowner everything is fine. The “Law Group” extracts numerous fees from the homeowner, often saying, “the bank can’t do anything as long as we represent you.” Often in the end, the “non-profit” was started by the same attorney (or non-attorney) who started the “Law Group.” The homeowner loses thousands of dollars and is left wondering, if a “non-profit” will scam them, is there anyone they can trust?

“You’re eligible to join our lawsuit”
Fake Mass Joinder & Other Lawsuits

On average, complaints that allege some type of attorney involvement have produced greater losses per homeowner than all other complaints. While attorneys can be involved in any type of foreclosure rescue fraud, they are uniquely capable of tricking homeowners into believing they can get involved in fake mass joinder or other lawsuit against a lender. The lawsuit schemes can prove to be even more painful for homeowners because they often involve two parts: first a fee for a “forensic audit” to see if the homeowner is eligible to join the suit, then another fee to join the suit. Most promise very impressive results, like the homeowner who was told she could “join a class action lawsuit against her lender. Once this was settled she was guaranteed $75,000.”

The final selling point for many of these lawsuits is the assurances made to homeowners that nothing can happen to their homes as long as they are part of the suit. Some attorneys advise homeowners to stop paying their mortgage and instead pay monthly retainer fees to them. Month after month, homeowners pay the fee, believing the attorney is fighting for them. In the worst cases, the homeowner doesn’t realize the attorney is actually providing no service at all until a foreclosure notice arrives.

One senior citizen from Williamstown, New Jersey, was contacted by a group of attorneys who guaranteed him a loan modification for just over four thousand dollars. After they allegedly reviewed his documents and made “headway” with the bank regarding a loan modification, they informed him that he was eligible to join a lawsuit against his lender. The suit included over twenty thousand homeowners and they assured him that the lender would settle. At that point the homeowner began making monthly retainer payments of just over a thousand dollars, for eleven months, for a suit that never happened. On top of all of that, the attorneys advised him to stop making his mortgage payments.

Attorneys Engaged in Foreclosure Rescue Fraud
Results in Higher Homeowner Losses

These “Law Groups” or “Law Networks” claim to include hundreds of lawyers from around the country and claim that they will connect homeowners to lawyers in their home state.

The Domino Effect of Foreclosure Rescue Fraud

The average dollar figure a homeowner loses in Attorney involved Scam is around $3600, and $2850 on non-Attorney Scams. This dollar figure does not take into account the potential domino effect of foreclosure and homelessness these foreclosure rescue scams can have.

Homeowners may lose over $3,200 in cash payments to a scammer, but then can end up losing hundreds of thousands of dollars more because their homes fall into foreclosure as a direct result of the scam.

At Reno Nevada Foreclosure Prevention Event: One story was particularly memorable.

It involved a homeowner named Bill, and his Dad. After the Lawyers’ Committee’s presentation, Bill’s father, who is in his 80’s, came to the Lawyers’ Committee’s table and asked that we speak to his son, who has medical issues and has difficulty walking. Bill opened his rolling filing cabinet, where he kept his mortgage documents meticulously categorized, and pulled out a large stack of papers from the section labeled “Name Withheld Law Center.”

Bill described his experience as follows: Towards the end of 2009, he received a flyer in the mail with the subject line, “RE: Obama Administration’s Homeowner Affordability and Stability Plan.” This “Modification PROGRAM” said he may be eligible for the “Governmental Economic Stimulus Act of 2009.” The flyer contained Bill’s name, address, and exact loan amount. There was a place for him provide his email address and phone number so the group responsible for the flyer could contact him.

After receiving the flyer, Bill began talking to the “Name Withheld Law Center” associated with it. He pulled out the contract that was sent to him, which contained a recognized attorney’s name because several state Attorneys General had obtained cease and desist orders against that attorney. The attorney doesn’t appear to have ever been licensed in Nevada, and while he had been licensed in California, his license was suspended in early 2013 for misconduct in three loan modification cases.

Bill paid just under two thousand dollars for a loan modification that he never received.

Bill’s Dad sat behind him and watched closely as Bill spoke about his experience with the “Name Withheld Law Group,” and about his life in general. Bill’s Dad’s eyes would well up from time to time.

This story is so moving because it accurately describes the effects of the foreclosure crisis and foreclosure rescue frauds on struggling homeowners. The vast majority of people looking for help to modify their mortgages don’t have an exploding rate mortgage. They, like Bill, have a normal 30 year fixed mortgage that they could afford pre-recession. Bill bought his home for around $280,000 in 2005, putting down a full 20%, which now is worth somewhere between $130,000 and $160,000. When he bought the home, like many Americans, he couldn’t foresee the worst recession since the Great Depression and the simultaneous housing collapse.

These homeowners became prime targets for foreclosure rescue scammers, having been blindsided by the recession and believing the guarantees of success by those who promised to save their homes.

Military Scams

Fake Military Discounts in Foreclosure Rescue Fraud

“We have a discount for military members & their families”

With more than three years of data in the Database – including over thirty-eight thousand complaints and over eighty-four million dollars in total reported losses – sadly there is no shortage of disturbing stories. From the dying cancer patient who was scammed out of thousands of dollars while he was trying to make sure his widow could afford the mortgage when he was gone, to the single woman who took in her sister’s four children after she passed away who was scammed into believing she was part of a fake lawsuit, then threatened by the same attorneys who scammed her after she complained. One type of troubling scam appearing over the past few years is the “Military Discount” targeted to active military service members and their families.

One man, a senior citizen from Fort Worth, Texas, had hit a rough patch when he was solicited by a third party. At that point, he was one month behind on his mortgage payments and was working hard to keep up. The company guaranteed him a loan modification for $1,600. He was hesitant to pay so much money when he was already struggling to stay current on his mortgage. Sensing his hesitation with the original price, the third party asked if he, or anyone in his family, was currently serving the country. After he explained that his daughter was currently serving the country in Iraq, the third party thanked him for his daughter’s service and told him that he was eligible for a military discount of $300. Lowering the price just enough to make it bearable for him, he paid the fee. Months went by with no results and no refund. The damage was not done there. The company advised him that he needed to stop making his mortgage payments in order to get the loan modification, so he did. He went from being just one month behind on his mortgage when he started working with this operation, to his home being sold in foreclosure.

State laws targeting foreclosure rescue fraud should define covered homeowners broadly, as those who seek foreclosure relief services can easily be defrauded before an actual foreclosure or mortgage payment default, thereby excluding them from the coverage of otherwise applicable consumer protection laws. Homeowners who are not yet in foreclosure and who have not fallen behind on mortgage payments should be encompassed in laws regulating third-party services in this area.

Some state and federal laws prohibiting foreclosure rescue fraud directly or indirectly (including through prohibitions on deceptive business practices) are only enforceable by government entities.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

What Homeowners Must Know About Appeal-able Orders and Judgment from the Federal Courts

01 Thursday Mar 2018

Posted by BNG in Appeal, Case Laws, Case Study, Federal Court, Foreclosure Crisis, Foreclosure Defense, Judicial States, Legal Research, Litigation Strategies, Non-Judicial States, Pro Se Litigation, Your Legal Rights

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Appeal-able Orders, Foreclosure, foreclosure defense, homeowners, Judgment, Orders, Plaintiff, United States

In order to effectively perfect your Appeal case as a Pro Se Litigator, homeowners must familiarize themselves about Appealing unfavorable decisions.

1. Appeal-able Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and
judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)).

A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate’s jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).

(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b).
Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:

i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);

ii. Orders appointing receivers or refusing to wind up receiverships; and

iii. Orders determining the rights and liabilities of parties in admiralty cases.

(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.

(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited
exceptions are discussed in cases including, but not limited to: Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93
L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine
Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional.
Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:

(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”

(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.

(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.

(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro Se notice of
appeal must be signed by the appellant.

4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at https://fightforeclosure.net/foreclosure-defense-package/ “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

How Homeowners Can use “Produce the Note” in Judicial & Non-judicial Foreclosure States

24 Wednesday Jan 2018

Posted by BNG in Banks and Lenders, Fed, Federal Court, Foreclosure Crisis, Foreclosure Defense, Fraud, Judicial States, Mortgage mediation, Non-Judicial States, Note - Deed of Trust - Mortgage, Pro Se Litigation, State Court, Your Legal Rights

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avoid foreclosure, borrowers, foreclose, foreclosing on home, foreclosure defense, foreclosure suit, home, homeowners, Lawsuit, lenders, lending and servicing, mortgages, Non-judicial Foreclosure States, note, Plaintiff, Produce the Note, true owners of the note

In some states, a lender can foreclose on your home without going to court. These are called non-judicial foreclosure states. You can still use the “Produce the Note” strategy in these states, but it takes a few more steps on your part.

First, the concept behind “Produce the Note” is this: When a homeowner is faced with a foreclosure suit, “Produce the Note” requires the lender to prove it has the actual authority to foreclose, by requiring it to officially produce the original promissory note in the lawsuit. But if there is no foreclosure lawsuit, what can homeowners do? In these “nonjudicial foreclosure” states, such as California, Texas, or the thirty or more other states with similar procedures, the homeowner has to file a lawsuit against the party trying to foreclose.

Here’s how it generally works:

In a state with nonjudicial foreclosure procedures, a foreclosure sale can be initiated by the lender without using court proceedings.
Homeowners receive a “Notice of Intent” letter informing them that a foreclosure sale will be scheduled unless the overdue debt is paid within a certain amount of time.
If the debt is not paid accordingly, a “Notice of Sale” is then sent informing the homeowner that a foreclosure sale will take place at a particular time and place.
No lawsuit is ever initiated by the lender and the courts are not involved.

Without a lawsuit, you cannot use judicial procedures to require the lender to “produce the note.”
Merely sending a private letter to the lender “demanding” that it produce the original note to the borrower may be met with utter disregard or outright refusal by the lender.

So, here’s what you can do:
In a nonjudicial foreclosure state, in order to protect yourself by demanding that the lender “produce the note,” it will be necessary for you to first actually file your own lawsuit. Even in such nonjudicial foreclosure states, no law prohibits you from instituting your own lawsuit challenging the right of a lender to foreclose on your property. The lawsuit would allege that:
the lender has sent a Notice of Intent to Foreclose; the homeowner is unsure as to whether the lender still possesses the original debt instrument, upon which the lender claims the right to foreclose; the homeowner wants proof of such authority; and the court should intervene and prevent the foreclosure from taking place unless and until such proof is presented.
Initiating litigation to protect your rights is never a simple process. Requirements as to what must be contained in a pleading, how the facts must be plead, who should be named in the pleading, and how the pleading should be officially “served” on the lender, all differ from state to state.

Once a lawsuit is initiated, however, all states have judicial procedures that allow a party to require the other side to produce relevant documents, and the “produce the note” strategy can be used.

Often times, the best way to protect your rights in these situations is to seek professional help from an attorney licensed to practice in your geographical area. Getting involved in a lawsuit by representing yourself, especially if you file the lawsuit yourself, is not easy, but you can do it. Every citizen is able to represent themselves and file a lawsuit on their own. It’s called pro se, which means “on ones own behalf.”

If you can afford a lawyer, then by all means, hire one. There are attorneys who specialize in real estate matters, and either advertise or can be found in the yellow pages. Most areas have bar associations that maintain lists of attorneys willing to help in specific areas of the law.
Finally, there are usually “legal aid” organizations around set up to assist individuals who may have difficulty paying for the services of an attorney. A good place to begin your search is by going to the Legal Services Corporation website.

So, even if you are in a non-judicial foreclosure state, you can use “Produce the Note.” This is your home, and if you want to fight for it, you do have a way.

If your home is currently in foreclosure, there may still be a chance to save it. As a result of lenders buying and selling mortgages your note could have changed hands several times over the course of the loan. But where is the actual note? In some warehouse somewhere? Make ‘em prove they own the debt they say you owe.

WHO OWNS THE NOTE?
Your goal is to make certain the institution suing you is, in fact, the owner of the note (see steps to follow below). There is only one original note for your mortgage that has your signature on it. This is the document that proves you owe the debt.
During the lending boom, most mortgages were flipped and sold to another lender or servicer or sliced up and sold to investors as securitized packages on Wall Street. In the rush to turn these over as fast as possible to make the most money, many of the new lenders did not get the proper paperwork to show they own the note and mortgage. This is the key to the produce the note strategy. Now, many lenders are moving to foreclose on homeowners, resulting in part from problems they created, and don’t have the proper paperwork to prove they have a right to foreclose.

THE HARM
If you don’t challenge your lender, the court will simply allow the foreclosure to proceed. It’s important to hold lenders accountable for their carelessness. This is the biggest asset in your life. It’s just a piece of paper to them, and one they likely either lost or destroyed.

When you get a copy of the foreclosure suit, many lenders now automatically include a count to re-establish the note. It often reads like this: “…the Mortgage note has either been lost or destroyed and the Plaintiff is unable to state the manner in which this occurred.” In other words, they are admitting they don’t have the note that proves they have a right to foreclose.
If the lender is allowed to proceed without that proof, there is a possibility another institution, which may have bought your note along the way, will also try to collect the same debt from you again.

A Tennessee borrower recently had precisely that happen to her. Her lender, Ameriquest, foreclosed on her in July of 2007. About three months later, another bank sent her a default notice for the mortgage on the house she just lost. She called to find out what was going on. After being transferred from place to place and left on hold for lengthy periods of time, no one could explain what happened. They said they would get back to her, but never did. Now, she faces the risk of having her credit continually damaged for a debt she no longer owes.

FIGHT FOR FAIRNESS
This process is not intended to help you get your house for free. The primary goal is to delay the foreclosure and put pressure on the lender to negotiate. Despite all the hype about lenders wanting to help homeowners avoid foreclosure, most borrowers know that’s not the reality.

Too many homeowners have experienced lender resistance to their efforts to work out a payment structure to keep them in their homes. Many lenders bear responsibility for these defaults, because they put borrowers into unfair loans using deceptive, hard-sell practices and then made the problem worse with predatory servicing.
Most homeowners just want these lenders to give them reasonable terms on their mortgages, many of which were predatory to begin with. With the help of judges who see through these predatory practices, lenders will feel the pressure to work with borrowers to keep them in their homes. Don’t forget lenders made incredible amounts of money by using irresponsible practices to issue and service these loans. That greed led to the foreclosure crisis we’re in today. Allowing lenders to continue foreclosing on home after home, destroying our neighborhoods and our economy hurts us all. So, make it hard for your lender to take your home. Make ‘em produce the note!

STEPS TO FOLLOW – You can either write Qualified Written Request RESPA Letter (QWR), to your lender. Alternatively, you can use the fill in the blank request forms usually available in your local Circuit Courts:

A. If your lender has already filed suit to foreclose on your home:

Use the first form. It’s a fill-in-the-blank legal request to your lender asking that the original note be produced, before it can proceed with the foreclosure. In some jurisdictions, the courts require the original request to be filed with the clerk of court and a copy of the request to be sent to the attorney representing the lender. To find out the rules where you live, call the Clerk of Court in your jurisdiction.

If the lender’s attorney does not respond within 30 days, file a motion to compel with the court and request that the court set a hearing on your motion. That, in effect, asks the judge to order the lender to produce the documents.

The judge will issue a ruling at your hearing. Many judges around the country are becoming more sympathetic to homeowners, because of the prevalence of predatory lending and servicing. In the past, many lenders have relied upon using lost note affidavits, but in many cases, that’s no longer enough to satisfy the judge. They are holding the lender to the letter of the law, requiring them to produce evidence that they are the true owners of the note. For example:

In October 2007, Ohio Federal Court Judge Christopher Boyko dismissed 14 foreclosure cases brought by investors, ruling they failed to prove they owned the properties they were trying to seize.

B. If you are in default, but your lender has not yet filed suit against you:

Use the second form. It’s a fill-in-the-blank letter to your lender which also requests they produce the original note, before taking foreclosure action against you.
If the lender does not respond and files suit against you to foreclose, follow the steps above.
UPDATE: CNN features The Consumer Warning Network and the “Produce The Note” strategy. Borrowers are putting this plan into action and getting results!

Consumer Warning Network Featured on CNN

Borrower wins more time to fight foreclosure! At a court hearing sometime ago, a Pinellas County, Florida Judge denied Wachovia the right to proceed with its foreclosure against borrower Jacqueline O’Brien (profiled in the CNN story). Instead, O’Brien was granted a continuance, as she pursues the produce the note strategy. Wachovia expressed interest in renegotiating the terms of the loan, rather than continuing the court battle.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

How Homeowners Can Greatly Improve their Chances of Winning on Appeal

24 Wednesday Jan 2018

Posted by BNG in Appeal, Case Laws, Case Study, Discovery Strategies, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Note - Deed of Trust - Mortgage, Pleadings, Pro Se Litigation, Scam Artists, Title Companies, Trial Strategies, Your Legal Rights

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Appeal, Court, District Court, Foreclosure, foreclosure defense, homeowners, Plaintiff, pro se, Pro se legal representation in the United States, State Court, United States district court

A seasoned Attorney will tell you that trying cases is one of the most exciting things a litigator does during his or her career but it is also certainly one of the most stressful. While in the trenches during trial, many litigators understandably focus all of their energies on winning the case at hand. But a good litigator knows that trial is often not the last say in the outcome of a case. The final outcome often rests at the appellate level, where a successful trial outcome can be affirmed, reversed, or something in between. The likelihood of success many times hinges on the substance of the record on appeal. The below discusses a variety of issues that trial litigators should keep in mind as they prepare and present their case so they position themselves in the best possible way for any appeals that follow.

Prepare Your Appellate Record From The Moment Your Case Begins

Perhaps one of the biggest misconceptions regarding preserving an adequate record on appeal is when a lawyer should start considering what should be in the record. In short, the answer is from the moment the complaint is filed. At that time, counsel should begin to think carefully about the elements of each asserted cause of action, potential defenses and their required elements, and the burden of proof for each. Every pleading should be drafted carefully to ensure that no arguments are waived in the event they are needed for an appeal. For instance, a complaint should allege with specificity all the factual and legal elements necessary to sustain a claim, while an answer should include any and all applicable affirmative defenses to avoid waiver. See, e.g., Travellers Int’l, A.G. v. Trans World Airlines, 41 F.3d 1570, 1580 (2d Cir. 1994) (“The general rule in federal courts is that a failure to plead an affirmative defense results in a waiver.”). Likewise, if you file a motion to dismiss, ensure that the motion contains all the necessary evidence that both a trial court and appellate court would need to find in your favor. Of particular importance in federal court practice is the pre-trial order. Under Federal

Rule of Civil Procedure 16, the pre-trial order establishes the boundaries of trial. See Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188, 206 (5th Cir.1998) (“It is a well-settled rule that a joint pre-trial order signed by both parties supersedes all pleadings and governs the issues and evidence to be presented at trial.”). If the pre-trial order does not contain the pertinent claims, defenses or arguments that you wish to present at trial, you are likely also going to be out of luck on appeal.

Later on in the case, as the factual record becomes more fully developed, consider whether amending or supplementing the pleadings or other court submissions are necessary to make the record as accurate as possible. Most states follow the federal practice of allowing liberal amendments. However, these can be contested, particularly late in the process, closer to trial. While appellate review is often for abuse of discretion, formulating a strong motion in favor of or in opposition to an amendment can preserve the issue.

What to Keep in Mind as Your Case Proceeds

As the case develops, consider whether the elements you need to prove your case are sufficiently reflected in the information you obtain during discovery. If not, determine whether there are ways to obtain the information you need well before trial starts. By the time trial arrives, it may be too late to supplement the record to get before the trial judge and the appellate court what you need to win your case. In that regard, anything you have in writing that gets submitted to the court may very well end up being part of the record on review, so make sure it is accurate and understandable. Incomprehensible or incomplete submissions can muddy your appellate record and damage a successful appellate proceeding. In the same vein, make sure anything presented to the court prior to trial that you want to be part of the record is transcribed. Otherwise, there will be an insufficient record on appeal. This is particularly so when it comes to discovery disputes. Although they are common in present day litigation, judges hate discovery disputes. To preserve discovery issues for appeal, be sure to get a ruling, and make sure it is reflected in writing. Moreover, carefully review every pre-trial court order or other judicial communication, including court minutes, to ensure accuracy. Attempting to make corrections during the appellate process may not be possible.

Another significant area for appellate issues is the failure to timely identify experts. This is subject to an abuse of discretion standard of review, so it is important that one builds a record on the issue, particularly regarding any prejudice suffered by the untimely disclosure.

After Discovery Closes – The Motion in Limine

Once discovery has closed, consider carefully any motions in limine you may want to make. Although motions in limine are not strictly necessary, they are helpful in identifying evidentiary issues for the judge and counsel and increase the chances of a substantive objection, sidebar, and ruling when the issue arises at trial. One potential pitfall – some jurisdictions require a party to renew an objection at trial after a motion in limine has been denied, so make sure to do so if necessary. See, e.g., State ex. Rel Missouri Highway and Transp. Com’n v. Vitt, 785 S.W.2d 708, 711 (Mo. Ct. App. E.D. 1990) (“A motion in limine preserves nothing for review. Following denial of a motion in limine, a party must object at trial to preserve for appellate review the point at issue.”) (internal citation omitted). Also, if the Court delivers its ruling on a motion in limine orally, make sure it is transcribed properly by the court reporter.

Now the Trial – What to Keep in Mind

Above all else, when in doubt, object. Objections should be immediate and specifically describe the basis for the objection so the record is clear. Make the argument to win – every objection should be more than just reciting labels, and should provide sufficient information for the trial judge to decide the issue. The goal is not to be coy with the trial judge and hope for a lucky break, but to be prepared to make an argument to win the issue at trial or, alternatively, on appeal. In addition, if you are the party proffering the evidence, make sure the proffer is on the record and that you expressly state why the evidence is being offered. This may require pressing on the judge to get the full objection on the record. If you fail to do so, you risk the appellate court not reviewing the claim on appeal. See, e.g., National Bank of Andover v. Kansas Bankers Sur. Co., 290 Kan. 247, 274-75 (2010) (observing “purpose of a proffer is to make an adequate record of the evidence to be introduced … [and] preserves the issue for appeal and provides the appellate court an adequate record to review when determining whether the trial court erred in excluding the evidence.”). Also, always be careful of waiving any issues for appeal by agreeing to a judge’s proposed compromise on evidentiary issues.

An important but often overlooked consideration is the courtroom layout and dynamics. Well-thought and timely objections will be for naught if they are not transcribed. Sometimes the courtroom layout can make record preservation difficult. For example, if objections are made at sidebar conferences where the court reporter is not present, those objections may not make their way into the appellate record or be dependent on the after the fact recollections of others. See, e.g., Ohio App. R. 9(c) (describing procedures for preparing statement of evidence where transcript of proceedings is unavailable and providing trial court with final authority for settlement and approval). This should be avoided whenever possible.

Beyond objections, make sure all the evidence you need for your appeal is properly admitted by the trial court before the close of your case. All exhibits that were used at trial should be formally moved into evidence if there is any doubt as to whether they will be needed on appeal. If you had previously moved for summary judgment and lost, make sure you take the necessary steps at trial to preserve those summary judgment issues, especially in jurisdictions that do not allow interlocutory appeals.

Another important aspect of the trial is the jury instructions. Jury instructions should always be complete. Remember that the instructions you propose can be denied without error if any aspect of them is not accurate, so break them into small bites so that the judge can at least accept some parts. Specifically object to any jury instructions as necessary before the jury begins its deliberations. See, e.g., Fed. R. Civ. P. 51(c). Failure to do so will waive the right to have the instruction considered on appeal. See, e.g., ChooseCo, LLC v. Lean Forward Media, LLC, 364 Fed. Appx. 670, 672 (2d Cir. 2010) (finding that defendant’s objection to jury instructions and verdict form during jury deliberations did not comply with Fed. R. Civ. P. 51(c) and noting that the “[f]ailure to object to a jury instruction or the form of an interrogatory prior to the jury retiring results in a waiver of that objection.”).

Additionally, when you lodge your objections, make sure you explain why the jury charge is in error since general objections are insufficient. See, e.g., Victory Outreach Center v. Meslo, 281 Fed. Appx. 136, 139 (3d Cir. 2008) (holding that general objection to the court’s jury instructions and proposed alternative instructions, “were insufficient to preserve on appeal all potential challenges to the instructions” and were not in compliance with Fed. R. Civ. P. 51(c)(1)). If possible, have a set of written objections to the other side’s jury charges, and get the judge to rule on that, since judges like to hold such conferences off the record. Also, do not overlook the verdict form. Know that when you agree to a particular form (general or special), that will mean that you are probably taking certain risks and waiving certain arguments one way or the other. Give this thought, and make sure that you know the rules of your jurisdiction on verdict forms so you can object if necessary. See, e.g., Palm Bay Intern., Inc. v. Marchesi Di Barolo S.P.A., 796 F.Supp. 2d 396, 409 (E.D.N.Y. 2011) (objection to verdict sheet should be made before jury retires); Saridakis v. South Broward Hosp. Dist., 2010 WL 2274955, at *8 (S.D. Fla. 2010) (noting that Federal Rule of Civil Procedure 51(c)(2)(B) states that an objection is timely if “a party objects promptly after learning that the instruction or request will be … given or refused” and that the Eleventh Circuit “require[s] a party to object to a … jury verdict form prior to jury deliberations” or the party “waives its right to raise the issue on appeal.”). (internal quotations and citation omitted).

Finally, pay careful attention to the closing argument. This can be an area where winning at trial by convincing a jury may be at odds with preserving the issue on appeal. On the flip side, many litigators are loath to interrupt a closing argument to object. If you need to object to preserve an issue, do so.

Post-Judgment – Final Things to Consider

First, determine whether certain arguments must be made post-judgment to preserve those arguments for appeal. Some arguments (such as those attacking the sufficiency of the evidence) must be made at that time or they are waived. See, e.g., Webster v. Bass Enterprises Production Co., 114 Fed.Appx. 604, 605 (5th Cir. 2004) (holding that failure to challenge back pay award in post-judgment motion waived the issue on appeal absent exceptional circumstances that did not exist). Written motions post-judgment should include all relevant references to trial transcripts and evidence to make as complete and clean a factual record as possible

Second, when the appellate record is being compiled, carefully double check the record to ensure its accuracy. Many times the trial court clerk or court reporter accidentally omits portions of the record. If this is not caught and corrected in a timely manner, you may be stuck with a bad record. Most jurisdictions have procedures in place for supplementing and correcting the record but understand them well in advance so there is adequate time to address any discrepancies before the appellate briefing is due.

Conclusion

Too often even seasoned trial lawyers get tripped up on appeal by not having an orderly and complete record. A litigator must never lose sight of the factual and legal issues in a case and what an appellate court will need to consider in making the desired determinations. As demonstrated above, a winning record requires thought at all stages of the litigation, not just when the notice of appeal is filed. With proper preparation, attention to detail, and forethought, one can ensure that the proper record on appeal is never in doubt.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Why Do Homeowners Need to File Chapter 7 Bankruptcy

27 Wednesday Dec 2017

Posted by BNG in Bankruptcy, Federal Court, Foreclosure Defense, Judicial States, Non-Judicial States, Pro Se Litigation

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bankruptcy court, chapter 7 bankruptcy, foreclosure defense, Pro se legal representation in the United States

WHY DO YOU NEED TO FILE “CHAPTER 7” PRO SE BANKRUPTCY?

Bankruptcy laws does not require debtors to have an attorney to file for bankruptcy relief. You are allowed to represent yourself in Chapter 7 or Chapter 13 bankruptcy as a “Pro se” debtor. “Bankruptcy” can be a daunting and even frightening, concept.

A better way to deal with these fears was conceived by the founders of our country when they, purposefully, included in the Constitution the “subject of Bankruptcies throughout the United States.” And so, through several incarnations, the present bankruptcy law remains the surest way to obtain a fresh financial start.

Individuals can file bankruptcy without an attorney, which is called filing Pro se.

One out of every 10 Bankruptcy cases is filed WITHOUT a lawyer.

Once you have filed for bankruptcy, your wage garnishment will cease. Creditors included in the filing must stop all collection activity after a bankruptcy is filed, including garnishment proceedings. Your extra wages should help you catch up on your mortgage payments and assist in solving one of your financial troubles.

SO YOU MAY ASK – WHY DO YOU NEED TO FILE “CHAPTER 7” BANKRUPTCY?

Fresh Start
Chapter 7 bankruptcy is a form of debt relief by which you may eliminate unsecured debts such as credit cards, medical bills and personal loans. In most cases, you can keep your home, car and other personal belongings. In order to be eligible for Chapter 7, your income, usually, can be no greater than the medium income for your State, based on the size of your family.

Stop Garnishments
A Chapter 7 is one of the most effective ways to immediately stop garnishments. Garnishments can take a portion of your hard-earned wages, making it nearly impossible for you to afford basic necessities. By filing a Chapter 7 bankruptcy and stopping the garnishment, you will be able to use your income for more important necessities for your family and possibly start saving for your family’s future.

Stop Creditor Harassment
If creditors are bothering you at work or home, harassing your family, friends and neighbors, call at all hours, you can put an end to it immediately simply using our Bankruptcy package to file your Bankruptcy.

Cosigner Is Not Paying
If you cosigned for a friend or relative, and their failure to pay that debt has resulted in collection activity or a lawsuit against you, Chapter 7 can eliminate your liability for the cosigned debt.

Eliminate Repossession Debt
After your vehicle is repossessed, they auction it off to reduce their loss, usually at a sales price much less than the retail value. You are still responsible for the balance on the car, called a “deficiency balance.” Remove the risk of law suits & garnishments arising from the deficiency balance by filing a Chapter 7.

“Reaffirm” Credit Cards You Want to Keep
The process of “reaffirmation” during the chapter 7 bankruptcy, will allow you to retain credit cards for which you, and the credit card company, want the relationship to continue. When you “reaffirm” the debt, you usually must promise to pay the debt you otherwise would eliminate in the proceedings.

End Law Suits
Lawsuits to collect debts are automatically enjoined upon the filing of a chapter 7 bankruptcy. The worry of a judgment with resultant garnishments and levies will no longer be a concern. The creditor must abide by bankruptcy laws and stop the lawsuit!

Rebuild Your Credit
Chapter 7 is one way for you to begin re-establishing your credit by reducing your debt-to-income ratio. With little or no remaining debt, lenders may see that you will be better able to repay your debts in the future. Many people who file Chapter 7 will finance cars after discharge and may even receive solicitation for unsecured credit within months. With our package, your can also see the estimate of what your credit score will be 1 year after the bankruptcy is completed, if you follow the prescribed plan.

Now What?

Our Pro se Bankruptcy package may be able to provide you with many of the following benefits. BUY NOW
(Forms, Pleadings and Guides, Case Law, References – Including Adversary Proceeding).

How Can Nevada Homeowners Effectively Handle Foreclosure Matters

08 Friday Apr 2016

Posted by BNG in Affirmative Defenses, Appeal, Federal Court, Foreclosure Defense, Pro Se Litigation

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Foreclosure, foreclosure defense, Mortgage loan, Nevada, Nevada Foreclosure, Nevada mortgage loans, Pro se legal representation in the United States

Why Is It Impportant For Nevada Homeowners to Protect their Homes?

In Nevada, homeowners must be aware of mortgage loans and foreclosure laws inorder to be few steps aheads of unscrupulous elements that would do whatever it takes to snatch away your home right under your nose.

Why You Need to Know About Nevada Mortgage Loans

When you take out a loan to purchase residential property in Nevada, you typically sign a promissory note and a deed of trust. A promissory note is basically an IOU that contains the promise to repay the loan, as well as the terms for repayment. The deed of trust provides security for the loan that is evidenced by a promissory note.

How Can you Handle the Issues of Missed Payments

If you miss a payment, most loans include a grace period of ten or fifteen days after which time the loan servicer will assess a late fee. (Loan servicers collect and process payments from homeowners, as well as handle loss mitigation applications and foreclosures for defaulted loans.)

The late fee is generally 5% of the overdue payment of principal and interest based on the terms of the note. To find out the late charge amount and grace period for your loan, look at the promissory note that you signed. This information can also be found on your monthly mortgage statement.

What Are Your Option About Missing Quite a Few Payments

If you miss a few mortgage payments, your mortgage servicer will probably send a letter or two reminding you to get caught up, as well as call you to try to collect the payments. Don’t ignore the phone calls and letters. This is a good opportunity to discuss loss mitigation options and attempt to work out an agreement (such as a loan modification, forbearance, or payment plan) so you can avoid foreclosure.

How Can You Handle Pre-Foreclosure Loss Mitigation Review Period

Under the federal Consumer Financial Protection Bureau servicing rules that went into effect January 10, 2014, the mortgage servicer must wait until you are 120 days delinquent on payments before making the first official notice or filing for any nonjudicial or judicial foreclosure. This is to give you sufficient time to explore loss mitigation opportunities. (If a servicer’s sole purpose of providing a notice is to inform you that you are late on your payments and/or explain what your loss mitigation options are, the servicer can deliver the notice within this pre-foreclosure period.)

What About Deed of Trust, What You Need to Know

Nevada deeds of trust often contain a clause that requires the lender to send a notice, commonly called a breach letter or demand letter, informing you that your loan is in default before it can accelerate the loan and proceed with foreclosure. (The acceleration clause in the mortgage permits the lender to demand that the entire balance of the loan be repaid if the borrower defaults on the loan.)

The letter must specify:

the default
the action required to cure the default
a date (usually not less than 30 days from the date the notice is given to the borrower) by which the default must be cured, and
that failure to cure the default on or before the date specified in the notice may result in acceleration of the debt and sale of the property.

What Types of Foreclosure Procedures Is there In Nevada

In Nevada, most residential foreclosures are nonjudicial. This means the lender can foreclose without going to court as long as the deed of trust contains a power of sale clause.

What is Notice of Default and Election to Sell

In Nevada, Non-judicial proceedings is used to foreclose most home. The Nevada nonjudicial foreclosure process formally begins when the trustee, a third-party, records a Notice of Default and Election to Sell (NOD) in the office of the recorder in the county where the property is located, providing three months to cure the default.

A copy of the NOD must be sent to each person who has a recorded request for a copy and each person with an interest or claimed interest in the property by registered or certified mail within ten days after the NOD is recorded recordation.

What Are the Requirements for Posting NOD?

If a residential foreclosure, a copy of the NOD must be posted in a conspicuous place on the property 100 days before the date of sale.

Are there Any Affidavit Required

The trustee or beneficiary (lender) must record a notarized affidavit along with the NOD that states, based on a review of business records, including all of the following information.

The full name and business address of the current trustee or the current trustee’s personal representative or assignee, the current holder of the note secured by the deed of trust, the current beneficiary of record and the current servicer of the obligation or debt secured by the deed of trust.
That the beneficiary under the deed of trust, the successor in interest of the beneficiary or the trustee is in actual or constructive possession of the note secured by the deed of trust; or that the beneficiary or its successor in interest or the trustee is entitled to enforce the obligation or debt secured by the deed of trust.
That the beneficiary or its successor in interest, the servicer of the obligation or debt secured by the deed of trust or the trustee, or an attorney representing any of those persons, has sent to the borrower a written statement including the amount needed to cure the default, the principal amount of the debt, the accrued interest and late charges, a good faith estimate of all fees, contact information for obtaining the most current amounts due, and each assignee of the deed of trust.

What Other Alternatives Do I Have to Stop the Foreclosure?

You have 3 alternatives, sometimes 4.

Your alternatives are:

1). Try to call your alleged lender to see if you can get a reasonable person on the phone. Don’t panic, just be prepared as over 90% of the people you speak to on the phone are programmed to act certain way.i.e, if you are lucky as 99.9% you’ll get a recording and will have to leave a message, unfortunately, you have less that 20% of getting a call back response. You’ll know very early that the alleged lender, definitely not with your best interest at heart.

2). Nevada law requires that borrowers who are in foreclosure be given the option to participate in mediation if the property is owner-occupied.

The trustee must mail to the borrower (by registered or certified mail, return receipt requested) an Election to Mediate Form no later than ten days after recording the NOD. If the borrower wants to elect mediation, the form must be completed and returned within 30 days.

3). You can commence litigation to immediately stop the foreclosure, but you have to be prepared to whether the stop as you’ll experience various emotions during the litigation proceedings, but with time, you’ll get used to it.

3) Bamkruptcy is another method to stop foreclosure, but it will not be in your best interest if you just found yourself in foreclosure situation. We recommend Bankruptcy as the last resort and this is why?

If you are a homeowner with a mortgage payment, say like $1000/mth. If you have missed payment that is 1 year or more. Your Chapter 13 bankrupcty payments will be difficult for you to make once in bankrupcty because you will still make the Normal monthly payment and then some portion of the missed payments, which is sometimes, nealy half of the monthly payment. So if you make a payment of $1000 before the foreclosure began, you’ll now have to make ($1500 (Regular + Potion Payments) to catch up. So you ask yourself, if you can’t afford the original payment of $1000, before you went into foreclosure, how can you afford the higher payments.

In Nevada, You Have What is called Danger Notice

At least 60 days prior to the date of the sale, the trustee must provide the borrower(s) with a separate “Danger Notice” stating that they are in danger of losing their home to foreclosure, along with a copy of the original promissory note.

The notice must be:

personally served to the borrower
left with a person of suitable age and discretion (if the borrower is not available) and a copy mailed, or
if a person of suitable age and discretion is not available, then the notice may be posted in a conspicuous place on the property, left with a person residing in the property, and then mailed to the borrower.

What do you need to know about Notice of Sale

After expiration of the three-month period following the recording of the NOD, the trustee must give notice of the time and place of the sale by recording the notice of sale and by:

Providing the notice of sale to each required party by personal service or by mailing the notice by registered or certified mail to the last known address 20 days before sale.
Posting the notice of sale on the property 15 days before the sale.
Posting the notice of sale for 20 days successively in a public place in the county where the property is situated and on the property 15 days before sale.
Publishing a copy of the notice of sale three times, once each week for three consecutive weeks, in a newspaper of general circulation in the county where the property is situated.

Notice to Tenants

If the property is tenant occupied, a separate notice must be posted in a conspicuous place on the property and mailed to the tenant no later than three business days after the notice of sale is given.

Reinstatement Before Sale

In the case of owner-occupied housing, the borrower gets a right to reinstate by paying the arrearage, costs, and fees. This right expires 5 days prior to the date of the foreclosure sale.

The Foreclosure Sale

The foreclosure sale must be between the hours of 9:00 a.m. and 5:00 p.m. All sales of real property must be made:

at the courthouse in the county in which the property or some part thereof is situated (in counties with a population of less than 100,000), or
at the public location in the county designated by the governing body of the county for that purpose (in counties with a population of 100,000 or more).

The property will be:

sold to the highest third-party bidder or
revert to the foreclosing lender and become REO

Deficiency Judgment Following Sale

When a lender forecloses on a mortgage, the total debt owed by the borrower to the lender frequently exceeds the foreclosure sale price. The difference between the sale price and the total debt is called a “deficiency.” In some states, the lender can seek a personal judgment against the debtor to recover the deficiency. Generally, once the lender gets a deficiency judgment, the lender may collect this amount from the borrower.

In Nevada, a lender may obtain a deficiency judgment following foreclosure, but the amount of the judgment is limited to the lesser of:

the difference between the total debt and fair market value of the home, or
the difference between the total debt and foreclosure sale price.

For loans taken out after October 1, 2009, deficiencies are prohibited for purchase money loans (that have not been refinanced) held by a bank or other financial institution for single-family residences occupied continuously by the borrowers.

Redemption Period

A redemption period is the legal right of any mortgage borrower in foreclosure to pay off the total debt, including the principal balance, plus certain additional costs and interest, in order to reclaim the property. In Nevada, there is no redemption period following a nonjudicial foreclosure sale.

Eviction Following Foreclosure

If you don’t vacate the property following the foreclosure sale, the new owner will likely:

offer you a cash-for-keys deal (where the new owner offers you money in exchange for you agreeing to move out), or

give you a three-day notice to quit (leave) before filing an eviction lawsuit.

To learn more about foreclosure in general, ways to defend against foreclosure, and programs to help struggling homeowners avoid foreclosure

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

What Maryland Homeowners Needs to Know About Withdrawal Of The Reference Of Bankruptcy Matters From The United States Bankruptcy Court To The United States District Court In Maryland

29 Tuesday Dec 2015

Posted by BNG in Bankruptcy, Federal Court, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation

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bankruptcy court, chapter 11, chapter 13, chapter 7, District Court, foreclosure defense, withdrawal of reference

This post is intended to be a useful guide to the procedures and practice involved in withdrawal of the reference of bankruptcy matters from the United States Bankruptcy Court to the United States District Court in Maryland. It is, however, not intended to be an exhaustive treatment of the subject and should not be used as a substitute for Pro se Homeowners or attorneys doing their own research and reviewing carefully all applicable statutes, rules and case law.

Background
Congress vested all original jurisdiction over bankruptcy cases in the United States District Court. 28 U.S.C. § 1334(a). Congress further provided that the District Court could refer all cases in bankruptcy and any and all proceedings arising under, in, or related to cases in bankruptcy, to the Bankruptcy Court. 28 U.S.C. § 157(a). The United States District Court for the District of Maryland has referred all cases under the Bankruptcy Code and all proceedings arising under the Bankruptcy Code or arising in or related to cases under the Bankruptcy Code to the United States Bankruptcy Court. Rule 402, Rules of the United States District Court (Maryland) (hereinafter referred to as “District Court Local Rule”). Accordingly, until and unless the reference of jurisdiction to the Bankruptcy Court is withdrawn by an Order of the District Court, all jurisdiction over bankruptcy
matters resides with the Bankruptcy Court.

Statutory and Rule Provisions With
Respect to Withdrawal of Reference

28 U.S.C. § 157(d) provides as follows:

(d) The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown.
The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce.

As set forth in § 157(d), the District Court has the authority to
withdraw the entire bankruptcy case, or any part thereof, or any proceeding in the bankruptcy case or part thereof. The District Court can exercise its authority to withdraw cases or proceedings on its own motion or on timely motion of any party, for cause shown. This authority is sometimes referred to as discretionary withdrawal of the reference.

28 U.S.C. § 157(d) also provides for what is often called mandatory
withdrawal of the reference. Pursuant to the second sentence of § 157(d), the District Court shall, on timely motion of a party, withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both the Bankruptcy Code and other federal laws regulating organizations or activities affecting interstate commerce. Note that the mandatory withdrawal of reference is only applicable to proceedings in the bankruptcy case and only on timely motion of a party, not on the District Court’s own motion.

Bankruptcy Rule 5011 (“Withdrawal and Abstention from Hearing a
Proceeding”) provides in pertinent part as follows:

(a) Withdrawal. A motion for withdrawal of a case or proceeding shall be heard by a district judge.

(c) Effect of Filing of Motion for Withdrawal or Abstention.
The filing of a motion for withdrawal of a case or proceeding or for abstention pursuant to 28 U.S.C. §1334(c) shall not stay the administration of the case or any proceeding therein before the bankruptcy judge except that the bankruptcy judge may stay, on such terms and conditions as are proper, proceedings pending disposition of the motion. A motion for a stay ordinarily shall be presented first to the bankruptcy judge. A motion for a stay or relief from a stay filed in the district court shall state why it has not been presented to or obtained from the bankruptcy judge. Relief granted by the district judge shall be on such terms and conditions as the judge deems proper.

District Court Local Rule 405 (“Rules of procedure for withdrawal of reference”) provides as follows:

1. General rule. When a case or proceeding has been referred by this Court to the Bankruptcy Court, all documents and pleadings in or related to such case or proceeding shall be filed with the Clerk in the Bankruptcy Court.

2. Withdrawal of reference of bankruptcy case or proceeding.

a. Filing of motion for withdrawal of reference with bankruptcy clerk. A motion pursuant to 28 U.S.C. § 157(d) and Bankruptcy Rule 5011 to withdraw the reference of any bankruptcy case, contested matter or adversary proceeding referred to the Bankruptcy Court pursuant to 28 U.S.C. § 157(a) and Local Rule 402 shall be filed with the Clerk in the Bankruptcy Court. If the motion requests withdrawal of only a portion of the case, a contested matter, or a portion of an adversary proceeding, the motion shall be accompanied by the filing of a designation of the documents and pleadings filed in the case or proceeding to which the motion relates.

b. Withdrawal of reference of bankruptcy cases. A motion to withdraw the reference of a case to the Bankruptcy Court must be timely filed, and in any event, before the case is closed.

c. Withdrawal of reference of adversary proceeding or contested matter. A motion to withdraw an adversary proceeding or a contested matter in a case which has been referred to the Bankruptcy Court must be filed by the earlier of eleven (11) days before the date scheduled for the first hearing on the merits; and

i. in the case of an adversary proceeding, within twenty (20) days after the last pleading is permitted to be filed pursuant to Bankruptcy Rule 7012; or
ii. in the case of a contested matter, within twenty

(20) days after the last responsive pleading or memorandum in opposition is permitted to be filed pursuant to Local Bankruptcy Rule 9013-1(b)(3).

3. Filing of pleadings after reference withdrawn.

a. If the reference of an entire case has been withdrawn from the Bankruptcy Court to the District Court, all pleadings and documents in or related to such case shall be thereafter filed with the Clerk in the District Court.

b. Where the reference of only a portion of an entire case has been withdrawn, pleadings and documents with respect to the case (including any parts thereof that have been withdrawn or transferred) shall continue to be filed with the Clerk in the Bankruptcy Court. Any pleadings and documents which relate to any parts of the case which have been withdrawn or transferred to the District Court shall also be filed with the Clerk of the District Court. The Clerk of the Bankruptcy Court
shall keep a separate docket sheet of those pleadings and documents filed in the portion of the case that has been transferred to the District Court.

c. Upon withdrawal or transfer of any complaint to the District Court, the plaintiff may forward to the defendant a notice and request to waive service of summons or the Clerk shall issue a District Court summons pursuant to Fed. R. Civ. 4(d) unless either of the aforementioned has already occurred pursuant to the Bankruptcy Rules.

d. This subsection (d) governs personal injury tort and wrongful death claims which must be tried in the District Court pursuant to 28 U.S.C. § 157(b)(5). Except for the procedures contained within this subsection, personal injury tort and wrongful death proceedings shall be filed with the Clerk in the Bankruptcy Court. However, beneath the bankruptcy number, the pleading or other document shall designate the pleading or document as a “SECTION 157(b)(5) MATTER.” When filing a complaint a completed District Court civil cover sheet (A.O. Form JS-44c) should be submitted beneath the Bankruptcy Court cover sheet required by Local Bankruptcy Rule 7003-1. No summons shall be issued until the proceeding
is transferred to the District Court. Upon filing the complaint, the Clerk in the Bankruptcy Court shall immediately transfer the proceeding to the District Court and plaintiff may send to the defendant(s) a notice and request to waive service of summons pursuant to Fed. R. Civ. P. 4(d) or the Clerk of the District Court shall issue a summons.

4. Motions concerning venue in bankruptcy cases and proceedings. All motions concerning venue in cases arising under Title 11 or arising in or related to cases under Title 11 shall be determined by the Bankruptcy Court, except in those cases to be tried in the District Court pursuant to 28 U.S.C. § 157(b)(5).

See also Local Bankruptcy Rule 5011-2, which provides in pertinent part as
follows:

A motion for withdrawal of reference is governed by Local Rule 405.2 of the United States District Court for the District of Maryland.

Filing of Pleadings Before Withdrawal of Reference

In accordance with District Court Local Rules 402 and 405.1, all papers and pleadings in, or related to a bankruptcy case or proceeding, shall be filed with the Clerk of the Bankruptcy Court. Until an Order is entered by the District Court removing the reference from the Bankruptcy Court for all or part of a matter, the Clerk of the District Court will not accept the filing of any pleadings or papers in any bankruptcy-related matter. Unless the party filing a paper or pleading in the Bankruptcy Court is exempt from electronic filing,1 all papers and pleadings should be filed in the Bankruptcy Court electronically through the CM/ECF system.

Filing of a Motion to Withdraw Reference

A party on timely motion or the District Court upon its own motion may withdraw, in whole or in part, any case or proceeding pending in the Bankruptcy Court for cause shown. The party’s motion to withdraw the reference must be filed in the Bankruptcy Court. If the motion requests withdrawal of only a portion of the case, contested matter or adversary proceeding, the motion shall be accompanied by the filing of a designation of the documents and pleadings filed in the case or proceeding to which the motion relates. After the filing of a response or the expiration of the response time period, if no response is filed, the Bankruptcy Clerk shall transmit the motion to the District Clerk’s office. The transmittal shall include copies of the motion and any response thereto and the transmittal form for a motion for withdrawal of reference. As set forth in Bankruptcy Rule 5011(a), the motion for withdrawal of reference will be decided by the District Court.

_____________________________

1 Parties who are representing themselves (pro se), other than those who are members of the Bar of the Bankruptcy Court, are exempt from the electronic filing requirements and should file their papers and pleadings with the Clerk of the Bankruptcy Court in paper format.

Unless and until the motion for withdrawal of reference is granted by Order of the District Court, the only matter over which the District Court will exercise jurisdiction is the motion for withdrawal of reference. Until the reference is actually withdrawn, the original referral of jurisdiction (District Court Local Rule 402) remains in place. Accordingly, while the motion for withdrawal of reference is pending, pleadings and papers in or related to the bankruptcy case shall continue to be filed with the Bankruptcy Court. After the motion to withdraw reference has been transmitted to the District Clerk, the Bankruptcy Clerk shall send copies of any additional filings concerning the motion to withdraw reference to the District Clerk. Until the reference is withdrawn, the Bankruptcy Court shall continue to handle all matters in the bankruptcy case including adversary proceedings and contested matters in such case.

Timeliness of Motion to Withdraw Reference

As set forth in 28 U.S.C. §157(d) and District Court Local Rule 405.2.b, a party’s motion to withdraw the reference must be timely filed. With respect to motions to withdraw the reference of the bankruptcy case itself, the District Court Local Rule further provides that the motion must be filed before the case is closed. With respect to motions to withdraw the reference of adversary proceedings or contested matters, District Court Local Rule 405.2.c provides that such motion must be filed by the earlier of eleven (11) days before the date scheduled for the first hearing on the merits and, in the case of an adversary proceeding, within twenty (20) days after the last pleading is permitted to be filed pursuant to Bankruptcy Rule 7012, or, in the case of a contested matter, within twenty (20) days after the last responsive pleading or memorandum in opposition is permitted to be filed pursuant to Local Bankruptcy Rule 9013-1(b)(3).

Mandatory and Discretionary Withdrawal of Reference

As noted above, pursuant to 28 U.S.C. § 157(d), the authority for a District Court to withdraw the reference is divided into two parts, mandatory withdrawal of the reference (“if the court determines that resolution of the proceeding requires consideration of both title 11 [the Bankruptcy Code] and other laws of the United States regulating organizations or activities affecting interstate commerce”) and discretionary withdrawal of the reference (“for cause shown”).

With respect to mandatory withdrawal of the reference, the statutory language appears to be quite broad. Nevertheless, it has been observed that “[t]he great weight of the case law interpreting § 157(d) holds that this seemingly broad language concerning mandatory withdrawal should be narrowly read. . . . The fact that resolution of the matters in question calls merely for consideration or application of both bankruptcy law and other federal laws is plainly insufficient, in that mandatory withdrawal should only be made where substantial and material consideration of non-bankruptcy statutes is necessary in the case.” In re Merryweather Importers, Inc., 179 B.R. 61, 62 (D. Md. 1995). Thus, mandatory withdrawal has been denied in cases involving “straightforward application of federal statutes to a particular set of facts. . . . By contrast, cases involving federal questions that are complex or are of first impression must be withdrawn from reference.” Id. at 62.

With respect to discretionary withdrawal of the reference (sometimes called permissive withdrawal), the statutory test is “for cause shown.” Cases have recognized that the District Court has broad discretion in deciding whether the reference should be withdrawn for cause shown. See In re Millennium Studios, Inc., 286 B.R. 300, 303 (D. Md. 2002). Among the factors to be considered by the court are whether the matter at issue between the parties is “core” within the meaning of 28 U.S.C. § 157(b)(2) and “the uniformity of bankruptcy administration, forum shopping and confusion of fora, conservation of creditor and debtor resources, expediency of the bankruptcy proceeding, and the fact that only equitable issues are posed, not requiring a jury trial but falling within the traditional equitable powers of the bankruptcy judge as chancellor.” In re Millennium Studios, Inc., 286 B.R. at 303; In re EquiMed, Inc., 259 B.R. 269, 273 (D. Md. 2001); In re Merryweather Importers, Inc., 179 B.R. at 63. Additional factors identified also include whether withdrawal “would promote judicial economy and the economic use of the parties’ resources.” In re EquiMed, Inc., 254 B.R. 347, 351 (D. Md. 2000). Finally, it has been stated that it is the movant’s burden to show cause for discretionary withdrawal of the reference. See In re Millennium Studios, Inc., 286 B.R. at 303-304.

Procedure in the Event that Entire Matter is Withdrawn

If the District Court grants the motion for withdrawal of reference, it shall enter an order providing for the same. A copy of said order shall immediately be transmitted to the Clerk of the Bankruptcy Court. If the reference of jurisdiction for the entire bankruptcy case or adversary proceeding is withdrawn by the District Court’s Order, all pleadings and papers in or related to such case or adversary proceeding shall thereafter be filed exclusively with the Clerk of the District Court. District Court Local Rule 405.3.a.

Procedure in the Event that Part of a Matter is Withdrawn

If the Order of the District Court withdraws the reference for less than the entire case or less than an entire adversary proceeding (for example, resolution of a contested matter), all pleadings and papers with respect to that bankruptcy case or adversary proceeding (specifically including those pleadings relating to the withdrawn matter) must continue to be filed with the Clerk of the Bankruptcy Court. In addition, counsel shall electronically file copies of all pleadings and documents relating to any parts of the case which have been withdrawn with the Clerk of the District Court through the CM/ECF system.2 Local District Court Rule 405.3.b.

Personal Injury and Wrongful Death Claims

Any personal injury or wrongful death claim filed in a bankruptcy case, or related to a bankruptcy case, shall be filed in the Bankruptcy Court. Local District Court Rule 405.3.d. The pleading shall contain a designation: “SECTION 157(b)(5) MATTER” and, if such pleading is a complaint, shall be accompanied by both a Bankruptcy Cover Sheet and a District Court Civil Cover Sheet. After docketing the initial pleading, the Clerk of the Bankruptcy Court shall forthwith transmit the matter to the Clerk of the District Court including a copy of the pleading, the District Court Civil Cover Sheet and a transmittal form. The Clerk of the District Court shall issue any necessary summons and the matter shall thereafter proceed in the District Court.

Final Orders of the District Court

If the District Court denies the motion to withdraw the reference, the Clerk of the District Court shall docket such order and forthwith transmit a copy of the docketed order to the Clerk of the Bankruptcy Court, after which the District Court file shall be closed. The Clerk of the Bankruptcy Court shall docket the order upon receipt from the Clerk of the District Court in the bankruptcy case or adversary proceeding in which the motion was filed.

With respect to a matter where reference has been withdrawn by the District Court, at such time as the District Court by final order decides such matter, the Clerk of the District Court shall docket the order of the District Court and forthwith transmit a copy of the docketed order to the Clerk of the Bankruptcy Court. The Clerk of the Bankruptcy Court shall docket the order in the case or adversary proceeding in which the motion to withdraw reference was filed.

__________________________________

2 The District Court also requires counsel to submit a paper courtesy copy of any document which, including attachments, is fifteen pages or longer.

Jury Adversary Proceedings That Must be
Tried by the District Court

With respect to jury trials, 28 U.S.C. § 157(e) provides as follows:

(e) if the right to a jury trial applies in a proceeding that may be heard under this section by a bankruptcy judge, the bankruptcy judge may conduct the jury trial if specially designated to exercise such jurisdiction by the district court and with the express consent of all the parties.

In addition, 28 U.S.C. § 1411 (Jury trials) provides as follows:

(a) Except as provided in subsection (b) of this section, this chapter and title 11 do not affect any right to trial by jury that an individual has under applicable nonbankruptcy law with regard to a personal injury or wrongful death tort claim.

(b) The district court may order the issues arising under section 303 of title 11 to be tried without a jury.

A discussion of the circumstances in which a right to a jury trial exists in a
particular adversary proceeding or other matter is beyond the scope of this
Memorandum.

With respect to the procedure applicable to jury trials, Bankruptcy Rule 9015(b) provides as follows:

(b) Consent to Have Trial Conducted by Bankruptcy Judge. If the right to a jury trial applies, a timely demand has been filed pursuant to Rule 38(b) F.R.Civ. P., and the bankruptcy judge has been specially designated to conduct the jury trial, the parties may consent to have a jury trial conducted by a bankruptcy judge under 28 U.S.C. § 157(e) by jointly or separately filing a statement of consent within any applicable time limits specified by local rule.

Local Bankruptcy Rule 9015-1 provides as follows:

A statement of consent to have a jury trial conducted by a bankruptcy judge under 28 U.S.C. § 157(e) must be filed before the conclusion of the initial pretrial conference.

With respect to the procedure for requesting a jury trial in a
bankruptcy proceeding, Local District Court Rule 406 (Jury trial) provides as follows:

1. Demand. In any bankruptcy proceeding any party may demand a trial by jury of any issue triable of right by jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten days after the service of the last pleading directed to such issue, and (2) filing the demand as required by Bankruptcy Rule 9015. Such demand may be indorsed upon a pleading of the party. If the adversary proceeding is one that has been removed from another court, any demand previously made under the rules of that court shall constitute a demand for trial by jury under this rule.

2. Specification of issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within ten days after service of the demand or such lesser time as the Court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.

3. Waiver. The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

4. Consent to jury trial before the United States Bankruptcy Judge. Pursuant to 28 U.S.C. 157(e), with the consent of the parties, a District Judge may designate a Bankruptcy Judge to conduct a jury trial.

A. No Motion to Withdraw Filed.

When an adversary proceeding is filed in which a party rightfully claims a right to trial by jury and the bankruptcy judge is not designated, or the parties have not consented to have the jury trial conducted by the Bankruptcy Judge, unless the complaint is accompanied by a motion to withdraw the reference, all jurisdiction over the adversary proceeding remains with the Bankruptcy Court until the reference is later withdrawn.

Accordingly, all pleadings must continue to be filed with the Clerk of the
Bankruptcy Court and all matters to be resolved within the adversary
proceeding, short of trial, remain before the Bankruptcy Judge. Included in
such matters to be resolved by the Bankruptcy Court, are disputes between
the parties as to the right to trial by jury.

B. Motion to Withdraw Reference Filed, but Denied at Outset of
Adversary Proceeding.

If the complaint or answer is accompanied by a timely filed motion to
withdraw reference under District Court Local Rule 405.2.c, the procedures
discussed above shall be followed for the disposition of the motion to
withdraw reference. An early motion to withdraw the reference may be
denied without prejudice to refiling the motion when the case is trial ready.
See In re Stansbury Poplar Place, Inc., 13 F.3d 122 (4th Cir. 1993); Furniture Rentors of America v. NYNex Information Resources Co., 162 B.R. 728 (D. Md. 1994). If the motion for withdrawal of the reference is denied at an early stage in the adversary proceeding and therefore the adversary
proceeding remains for pre-trial purposes with the Bankruptcy Court, all
jurisdiction over the adversary proceeding remains with the Bankruptcy
Court until a motion is granted withdrawing the reference of the adversary
proceeding.

C. Pre-Trial Phase.

The pre-trial phase of the adversary proceeding shall encompass the
period of time allowed for discovery and the filing of and decision on all
dispositive motions. At the time that discovery has been completed, any
dispositive motions ruled upon, and the adversary proceeding is otherwise
ready to be scheduled for trial, the pre-trial phase of the adversary
proceeding is completed.

D. Withdrawal of Reference for Trial

If the reference has not been withdrawn by Order of the District Court
prior to the completion of the pre-trial phase of the adversary proceeding, at the end of the pre-trial phase of the adversary proceeding the Bankruptcy Court shall issue a summary report and recommendation to the District Court, recommending that the reference be withdrawn so that the trial by jury may go forward in the District Court. This report and recommendation shall be docketed in the adversary proceeding by the Clerk of the Bankruptcy Court and a copy transmitted to the Clerk of the District Court for action by the District Court upon the report and recommendation. If the District Court agrees that the reference should be withdrawn at that time, the District Court will enter an Order withdrawing the reference and transmit a copy of the Order to the Clerk of the Bankruptcy Court. Upon entry of an Order withdrawing the reference, all jurisdiction over the adversary proceeding shall be in the District Court and the Bankruptcy Court shall have no further authority to act in the adversary proceeding. All pleadings thereafter shall be filed with the Clerk of the District Court.

Miscellaneous

The transmission of a motion for withdrawal of the reference should not be delayed by the Clerk of the Bankruptcy Court pending the issuance of any report and recommendation by the Bankruptcy Court. Where it deems it appropriate, the Bankruptcy Court may provide such a report and recommendation to the District Court, or the District Court may request such a report and recommendation from the Bankruptcy Court, for any motion for withdrawal of the reference.

When Homeowner’s good faith attempts to amicably work with the Bank in order to resolve the issue fails;

How Homeowners Can Effectively Use Automatic Stay Provisions of the Bankruptcy Code

27 Sunday Dec 2015

Posted by BNG in Bankruptcy, Case Laws, Case Study, Foreclosure Crisis, Foreclosure Defense, Judicial States, Non-Judicial States, Pro Se Litigation, Your Legal Rights

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automatic stay, bankruptcy code, chapter 11 bankruptcy, chapter 13 bankruptcy, chapter 7 bankruptcy, foreclosure defense, lifting automatic stay, pro per, pro se, Pro se legal representation in the United States, wrongful foreclosure

I. Introduction.

A. Scope.

1. Section 362(a) of the Bankruptcy Code (the “Code”) contains a broad
statutory stay of litigation and lien enforcement, effective automatically on the commencement of a bankruptcy case. 11 U.S.C. § 362(a) (“. . . a petition [commencing a case] . . . operates as a stay, applicable to all entities . . .”.).

2. Purpose – Time to Reorganize. This automatic stay gives a trustee or
chapter 11 debtor-in-possession1 a breathing spell from creditors by stopping all collection efforts, harassment, and all foreclosure actions, allowing a debtor to attempt a reorganization plan. See, e.g., In re Siciliano, 13 F.3d 748, 750 (3d Cir. 1994) (“[t]he purpose of the automatic stay provision is to afford the debtor a ‘breathing spell’ by halting the collection process. It enables the debtor to attempt a repayment or reorganization plan with an aim toward satisfying existing debt.”);
Maritime Electric Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir. 1991) (“automatic stay allows debtor breathing spell from creditors and stops collection efforts”); In re Peregrine Systems, Inc., 314 B.R. 31, 44 (Bankr. D. Del. 2004) aff’d in part, rev’d in part on other grounds, 2005 WL 2401955 (D. Del. Sept. 29, 2005) (automatic stay is a “fundamental protection provided to a debtor for the purpose of stopping all creditor collection efforts and harassment of the debtor and to provide … a fresh start.”); Shaw v. Ehrlich, 294 B.R. 260, 267 (W.D. Va. 2003), aff’d, 99 Fed. Appx. 466 (4th Cir. 2004) (“stay protects debtors, as well as creditors, by providing debtors a breathing spell from collection efforts”).

3. Policy Rationale – Debtor Asset Protection. Behind the stay is a clear
policy rationale: “to grant complete, immediate, albeit temporary relief to the debtor from creditors, and also to prevent dissipation of the debtor’s assets before orderly distribution to creditors can be effected.” S.E.C. v. Brennan, 230 F.3d 65, 70 (2d Cir. 2000) (quoting Penn Terra Ltd. v. Department of Envtl. Resources, 733 F.2d 267, 271 (3d Cir. 1984)). See also Reliant Energy Services, Inc. v. Enron Canada Corp., 349 F.3d 816, 825 (5th Cir. 2003) (“purposes of the bankruptcy stay under 11 U.S.C. § 362 ‘are to protect the debtor’s assets, provide temporary relief from creditors, and further equity of distribution among the creditors by forestalling a race to the courthouse.'”) (quoting GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 716 (5th Cir. 1985)); Mann v. Chase Manhattan Mortgage Corp., 316 F.3d 1, 3 (1st Cir. 2003) (“automatic stay provision is designed to forfend against the disorderly, piecemeal dismemberment of the debtor’s estate outside the bankruptcy proceedings”).

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1 Code § 1107(a) gives a chapter 11 debtor-in-possession the “rights,” “duties” and “powers” of a trustee.
See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 517 n. 2 (1984). See also Fed. R. Bankr. P. 9001(10) (“‘Trustee’ includes a debtor in possession in a Chapter 11 case.”).

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4. Procedural Safeguards for Secured Creditors. The Code still imposes
procedural safeguards for the benefit of the secured creditor (e.g., “adequate protection” against erosion of collateral value; time limits on stay modification requests; limits on counterclaims against secured lender seeking stay modification). As shown below, it attempts to reconcile the rights of the secured creditor with the needs of the debtor and its unsecured creditors. See United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd. (In re Timbers of Inwood Forest Associates, Ltd.), 484 U.S. 365, 376 (1988) (“ . . . lack of any realistic prospect of effective reorganization will require” modification of stay of lien enforcement”).

II. The Automatic Stay.

A. When Effective.

1. The stay is automatic upon filing of the petition commencing a case under Code chapters 7 (liquidation), 9 (municipal debt adjustment), 11 (reorganization),13 (individual debt adjustment), or chapter 15 (cross-border cases) with respect to foreign main proceedings. See e.g. Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210, 1214 (9th Cir. 2002) (“the automatic stay requires an immediate freeze of the status quo by precluding and nullifying post-petition actions”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 527 (2d Cir. 1994) (“[a]utomatic stay is effective immediately upon filing of bankruptcy petition”) (citing Shimer v. Fugazy (In re Fugazy Express, Inc., 982 F.2d 769, 776 (2d Cir. 1992));

2. The stay acts as a specific and definite court order to restrain creditors
from continuing the judicial process or collection efforts against debtor. See e.g. In re San Angelo Pro Hockey Club, Inc., 292 B.R. 118 (Bankr. N.D. Tex. 2003) (automatic stay is self-executing injunction, constituting an order issuing from bankruptcy court); In re Bottone, 226 B.R. 290, 297 (Bankr. D. Mass. 1998) (“as long as the Chapter 13 case is pending . . . the automatic stay … restrains postpetition creditors from taking action against property of the estate”) (quoting In re Woodall, 81 B.R. 17, 18 (Bankr. E.D. Ark. 1987)).

3. Unless modified by the court, the stay is effective for the duration of a
bankruptcy case, and generally cannot be waived by the debtor. Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194 (3d Cir. 1991) (held, because automatic stay serves interests of both debtors and creditors, it may not be waived and its scope may not be limited by debtor); In re Atrium High Point Ltd. Partnership, 189 B.R. 599 (Bankr. M.D.N.C. 1995) (before enforcing a debtor’s prepetition waiver of automatic stay bankruptcy court must look at circumstancesunder which prepetition waiver arose); but see In re Excelsior Henderson Motorcycle Mfg. Co., Inc., 273 B.R. 920 (Bankr. S.D. Fla. 2002) (court enforced prepetition agreement under which chapter 11 debtor waived automatic stay).

B. Jurisdictional Basis of Injunctive Power.

1. The district court has “exclusive jurisdiction of all of the property,
wherever located, of the debtor as of the commencement of [the] case.” 28 U.S.C. § 1334(d). A bankruptcy court is a “unit of the district court.” 28 U.S.C. § 151. Section 362 implements this jurisdiction and is supplemented by § 105(a), which authorizes a court to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of the Code.

2. The broad jurisdictional base of Section 362 confirms the court’s inherent power to protect property within its jurisdiction and to prevent any divestiture of that jurisdiction. Isaacs v. Hobbs Tie & Timber Co., 51 S. Ct. 270, 282 (1931) (held, jurisdiction of bankruptcy court respecting property of debtor’s estate having attached, actions brought in other courts could not affect it). See In re Mohawk Greenfield Motel Corp., 239 B.R. 15 (Bankr. D. Mass. 1999) (“the automatic stay protects the bankruptcy court’s exclusive jurisdiction over the debtor and its property”) (citing In re Soares, 107 F.3d 969, 975 (1st Cir. Mass. 1997)).

3. Section 362(a) stays, among other things:

a. a secured creditor from collecting accounts receivable of debtor.
Matter of Pernie Bailey Drilling Co., Inc., 993 F.2d 67 (5th Cir. 1993)
(account receivables were property of the estate; court must lift stay for
creditors to gain access to receivables);

b. a creditor’s dissolution of a debtor corporation. 11 U.S.C.
§ 362(a)(3); Hillis Motors, Inc. v. Hawaii Automobile Dealers’ Assoc.,
997 F.2d 581 (9th Cir. 1993) (held, dissolution proceeding constituted
exercise of control over debtor’s property);

c. foreclosure proceedings in other courts instituted against debtor’s
property prior to commencement of bankruptcy case. 11 U.S.C.
§ 362(a)(1); see In re Vierkant, 240 B.R. 317, 322 (B.A.P. 8th Cir. 1999)
(citing Kalb v. Feuerstein, 308 U.S. 433 (1940); In re Soares, 107 F.3d
969 (1st Cir. 1997)) (post-petition state court default order signed by judge
two weeks after bankruptcy filing violated automatic stay);

d. a landlord’s proceeding to recover possession of leased premises.
11 U.S.C. § 363(a)(5); 48th St. Steakhouse, Inc. v. Rockefeller Group, Inc.
(In re 48th St. Steakhouse, Inc.), 835 F.2d 427 (2d Cir. 1987) (serving
notice of termination on assignee of restaurant lease rather than on debtor, which still had interest in the property, violated automatic stay); and

e. an IRS sale of property seized prior to commencement of case.
11 U.S.C. § 362(a)(8); United States v. Whiting Pools, Inc., 462 U.S. 198
(1983) (IRS may also be compelled to turn over levied property under
Code § 542).

f. arbitration proceedings that not only concern claims asserted
against the debtor, but also concern the debtor’s claims against a third
party. ACandS, Inc. v. Travelers Casualty and Surety Co., 425 F.3d 252
(3d Cir. 2006), cert. denied, 126 S. Ct. 2291 (2006). (although arbitration
was commenced by debtor, continuation of arbitration proceedings
violated automatic stay because, unlike trial, it is impossible in arbitration
to definitely classify arguments presented (i.e., claims and counterclaims);
arbitration award, which effectively terminated debtor’s insurance
coverage, is invalid because it diminishes estate property); In re Edwin
Epstein Jr. Operating Co., Inc., 314 B.R. 591 (Bankr. S.D. Tex. 2004)
(held, automatic stay applied, not only to prevent non-debtor party to
arbitration proceedings from asserting claims against debtor for tortious
interference and slander of title, but also to prevent arbitrators from
hearing debtor’s claims to replace this non-debtor party as operator of oil
and gas wells based on debtor’s asserted ownership interests therein).

III. Scope and Duration of Stay.

A. Scope of Section 362.

1. Property of Estate. The bankruptcy court’s injunctive power is ordinarily
limited to protecting property belonging to a debtor. Property of the estate is defined in Code § 541(a)(1) (“. . . all legal or equitable interests of the debtor in property as of the commencement of the case.”). See In re Lankford, 305 B.R. 297, 301 (Bankr. N.D. Iowa 2004) (“All recognizable interests of the debtors or the estate are afforded the protection of § 362(a)…This includes a mere possessory interest in real property without any accompanying legal interest.”). See also In re Moffett, 356 F.3d 518 (4th Cir. 2004) (held, chapter 13 debtor’s statutory right of redemption was sufficient interest in automobile that was repossessed prepetition to be included in estate property). But see In re Jasper, 325 B.R. 50, 55 (Bankr. D. Me. 2005) (credit union’s policy of revoking membership benefits of members who caused credit union a loss does not violate automatic stay); In re Santangelo, 325 B.R. 874 (Bankr. M.D. Fla. March 22, 2005) (district court did not violate automatic stay by approving class action
settlement for claims against mortgage lender; rather, court gave prospective class members, including debtor choice of remaining class members or opting out of class); In re Medex Regional Laboratories, LLC, 314 B.R. 716 (Bankr. E.D. Tenn. 2004) (proceeds of debtor’s directors’ and officers’ liability insurance policies were not property of estate and were not protected by automatic stay, even though policies also provided coverage to debtor for indemnification claims, because the debtor had not provided any indemnification to non-debtor insiders and such indemnification claims were merely hypothetical). Compare In re Arter &
Hadden, L.L.P., 335 B.R. 666 (Bankr. N.D. Ohio 2005) (proceeds of debtor’s
directors’ and officers’ liability insurance policies are property of estate because policies also provided coverage to debtor and there was no reason why direct suit against debtor is either practically or procedurally untenable).

a. Property Outside the Scope. The stay is not applicable to actions
against property that is neither the debtor’s nor the estate’s. Rodger v.
County of Munroe (In re Rodgers), 333 F.3d 64 (2d Cir. 2003) (debtor’s
mere possession of title to real property is not sufficient to find property to
be property of estate or to bar delivery of deed to purchaser by operation
of stay); Chugach Timber Corp. v. Northern Stevedoring & Handling
Corp. (In re Chugach Forest Prods., Inc.), 23 F.3d 241 (9th Cir. 1994)
(court refused to extend stay to boat that was not property of debtor’s
estate but on which assets of debtor had been transferred) (11 U.S.C.
§ 541(b)); In re Howell, 311 B.R. 173, 179 (Bankr. D. N.J. 2004)
(automatic stay does not preclude estranged spouse from seeking equitable distribution of non-estate property such as exempt property, postpetition earnings, property excluded from the estate, property abandoned by the trustee or debtor surplus); NLRB v. McDermott, 300 B.R. 40 (D. Col. 2003) (automatic stay did not protect property of debtor’s wife’s). Examples of property outside the stay’s scope are:

(i) Foreclosure. If a lender completes foreclosure before the bankruptcy filing, neither the debtor nor the estate has any interest in the property and the automatic stay does not apply. In re Theoclis, 213 B.R. 880 (Bankr. D. Mass. 1997) (held, foreclosure sale had terminated debtor’s interest in property.); In re Williams, 247 B.R. 449 (Bankr. E.D. Tenn. 2000) (when foreclosure sale of debtor’s residence became final prior to commencement of chapter 13 case, residence did not become property of estate and was not protected by automatic stay);

(ii) Abandonment. Abandonment terminates the stay as to abandoned property. In re Holly’s, Inc., 140 B.R. 643 (Bankr. W.D. Mich. 1992) (once abandonment of debtor’s property is effectuated, or foreclosure of real and personal property is completed, taxing entity is entitled to enforce its
statutory in rem rights against property.). But see In re Thompson-Mendez, 321 B.R. 814, 819 (Bankr. D. Md. 2005) (trustee’s deemed rejection of debtor’s residential lease by failure to timely assume it did constitute
abandonment such that lease was no longer protected by automatic stay).

2. Entities Affected by the Stay. Section 362(a) applies “to all entities,”
including any “person, estate, trust, governmental unit.” 11 U.S.C. § 101(15). This broad definition of “entity” eliminates the need to define who is a “creditor,” “secured creditor” or other person affected by the stay.

B. Duration of the Stay. Unless the court orders otherwise (i.e., unless creditor gets automatic stay modified), the stay “continues until such property is no longer property of the estate.” 11 U.S.C. § 362(c)(1). The stay of all other acts continues until case is closed or dismissed, or, if debtor is an individual, until debtor is granted or denied a discharge. 11 U.S.C. §§ 362(c)(2)(A), (B) and (C). See also In re Allen, 300 F.3d 1055, 1059 (9th Cir. 2002) (automatic stay “prohibits action against the bankruptcy estate only until the bankruptcy court confirms a plan reorganizing the debtor’s property”); Middle Tennessee News Co., Inc. v. Charnel of Cincinnati, Inc., 250 F.3d 1077 (7th Cir. 2001) (automatic stay remains in effect until bankruptcy court disposes of case or grants relief from stay); In re Spirtos, 221 F.3d 1079, 1081 (9th Cir. 2000) (“So long as there are assets in the estate, then, the stay remains in effect”); Eastern Refractories Co. Inc. v. Forty Eight Insulations Inc., 157 F.3d 169 (2d Cir. 1998) (order “terminating” automatic stay operates from date of order’s entry); Lomagno v. Salomon Brothers Realty Corp., 320 B.R. 473, 481 (B.A.P. 1st Cir. 2005), aff’d, 429 F.3d 16 (1st Cir. 2005) (automatic stay not retroactively imposed when dismissal order set aside on due process grounds); In re Peregrine Systems, Inc., 314 B.R. 31, 44 (Bankr. D. Del. 2004), aff’d in part, rev’d in part on other grounds, 2005 WL 2401955 (D. Del. Sept. 29, 2005) (automatic stay “continues until the bankruptcy case is closed, dismissed, or discharge is granted or denied, or until the bankruptcy court grants some relief from the stay.”) (citing Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.3d 1194, 1206 (3d Cir. 1991)); U.S. v. White, 466 F.3d 1241 (11th Cir. 2006) (debtor discharged and automatic stay terminates on date of confirmation of debtor’s reorganization plan even when plan contains a later effective date). If a case is filed by or against a debtor who is an individual and a case of the debtor was pending within the preceding one year period but was dismissed, the automatic stay “with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case.” 11 U.S.C. § 362(c)(3)(A). See Jumpp v. Chase Home Finance, LLC (In re Jumpp), 356 B.R. 789 (B.A.P. 1st Cir. 2006) (interpreting § 362(c)(3)(A) automatic stay terminates only in regard to debtor; stay continues, though, in regard to property of estate).

As of October 17, 2005, automatic stay terminates 60 days after a request for relief from stay unless final decision on request is rendered by court within the 60-day period or period is extended by agreement or by court for specific period of time found necessary for good cause.2

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2 The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was enacted on April 20, 2005, and many of its provisions became effective on October 17, 2005.

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IV. Acts Stayed. Section 362(a) is broad in scope, but specifically lists eight categories that are subject to its injunctive power.

1. “Commencement or continuation . . . of a judicial, administrative, or other proceeding against the debtor . . . to recover on a prepetition claim against a debtor.”3 Code § 362(a)(l) (emphasis added):

a. Appeals: stay covers all proceedings originally brought against the
debtor, regardless of whether the debtor is appellant or appellee.4 Halmar
Robicon Group, Inc. v. Toshiba Int’l Corp., 127 Fed. Appx. 501, 503 (Fed.
Cir. 2005) (automatic stay only operates as against actions in which debtor
is in defensive posture); Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (“[t]he 362(a)(1) stay applies to actions that are ‘against the debtor’
at their inception, regardless of the subsequent appellate posture of the
case”); Ellis v. Consolidated Diesel Elec. Corp., 894 F.2d 371, 373 (10th
Cir. 1990) (operation of stay should not depend upon whether district
court finds for or against the debtor). But see In re Mid-City Parking,
Inc., 322 B.R. 798 (Bankr. N.D. Ill. 2005) (debtor may unilaterally waive
protections of automatic stay by pursuing appeal without first obtaining
bankruptcy court order lifting stay; debtor could not be held liable for
damages to creditor-appellee arising from debtor’s alleged “willful stay
violation).

b. Administrative proceedings: See In re Krystal Cadillac Oldsmobile
GMC Truck, Inc., 142 F.3d 631 (3d Cir. 1998) (postpetition
determinations by Pennsylvania’s Board of Vehicle Manufacturers,
Dealers and Salespersons, ordering termination of franchise agreement
violated automatic stay); In re Best Payphones, Inc., 279 B.R. 92 (Bankr.
S.D.N.Y. 2002) (administrative law judge’s post-petition decision in
proceeding commenced pre-petition ‘but concluded after debtor’s chapter
11 filing’ was void and without effect because it violated automatic stay).
But see Board of Governors of Federal Reserve System v. MCorp
Financial, Inc., 502 U.S. 32 (1991) (Section 362(a) does not apply to
ongoing, nonfinal administrative/regulatory proceedings, and action of
Board of Governors was excepted from the stay under Section 362(b)(4)
of the Code (the “governmental unit” exception)).

c. Partnerships. Actions against partners and their property are not
protected in first instance by the filing of a partnership petition. Bankers
Trust (Delaware) v. 236 Beltway Inv., 865 F. Supp. 1186 (E.D. Va. 1994)
(automatic stay does not protect partnership debtor’s individual general
partners); O’Neill v. Boden-Wert Real Estate USA Funds I, Ltd., 599
So.2d 1045 (Fla. App. 2d Dist. 1992) (held, automatic stay did not stop action against general partner in partnership debtor or against general
partner’s general partner).

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3 “‘[C]laim against the debtor’ includes claim against property of the debtor.” 11 U.S.C. § 102(2).
4 Actions against non-debtors and against co-defendants are not stayed. See sub-section (e) infra.

d. Shareholders of corporate debtor. Bankruptcy court has no jurisdiction
over stock of corporate debtor that belongs to third party shareholders.
See e.g. In re Marvel Entertainment Group, Inc., 209 B.R. 832, 838 (D.
Del. 1997) (“automatic stay provisions of the Bankruptcy Code are not
implicated by the exercise of shareholders’ corporate governance rights.”).

e. Actions against surety, co-debtor, or guarantor are not stayed.5 See
e.g. Reliant Energy Services, Inc. v. Enron Canada Corp., 349 F.3d 816,
825 (5th Cir. 2003) (“[by its terms the automatic stay applies only to the
debtor, not to co-debtors under Chapter 7 or Chapter 11”); In re Third
Eighty-Ninth Associates, 138 B.R. 144 (S.D.N.Y. 1992) (suit against
guarantors of chapter 11 debtor was not a “back-door” attempt to acquire
assets of debtor); In re Rohnert Park Auto Parts, Inc., 113 B.R. 610
(B.A.P. 9th Cir. 1991) (automatic stay does not prevent creditors from
suing co-debtors).

f. Actions are not stayed against non-debtor co-defendants.6 See e.g.
Queenie, Ltd. v. Nygard Intl., 321 F.3d 282, 287 (2d Cir. 2003) (debtor’s
filing of bankruptcy petition stayed his appeal and that of his wholly owned corporation7, but not that of co-defendants); 555 M Mfg., Inc. v.
Calvin Klein, Inc., 13 F. Supp. 2d 719 (N.D. Ill. 1998) (automatic stay
protection not available to debtor’s solvent co-defendant in breach of
contract case). But see Woodell v. Ormet Primary Aluminum Corp., 808
N.E.2d 402, 407 (Ohio Ct. App. 2004) (automatic stay applies to claims
against debtor’s employee co-defendants only to the extent that the causes of action against them arise from their status as employees of the debtor).

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5 In limited circumstances, courts have asserted their equitable powers under 11 U.S.C. § 105(a) to enjoin the continuation of litigation against non-debtors when the debtor’s trustee demonstrates that continuation of litigation against non-debtors imminently and irreparably threatens the debtor’s reorganization prospects. E.g. In re United Health Care Org., 210 B.R. 228, 233 (S.D.N.Y. 1997) (staying action against non-debtor principals and officers of debtor when enforcement of judgment imminently and irreparably threatened non-debtors’ ability to fund debtor’s plan); North Star Contracting Corp. v. McSpeedon (In re North Star Contracting Corp.), 125 B.R. 368, 370-71 (S.D.N.Y.1991) (staying action against non-debtor president of debtor when, among other things, continuation of action would distract vital non-debtor and there was no distinct cause of action against him, but merely an action commenced solely to circumvent the stay).

6 Courts may stay actions against a non-debtor third-party defendant under “unusual circumstances” when “there is such identity between the debtor and third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment … against the debtor.” A.H. Robins Co. v. Piccinin, 788 F.2d 994, 999 (4th Cir. 1986). See also In re Nat’l Century Fin. Enter., 423 F.3d 567 (6th Cir. 2005) (commencement of civil action to recover accounts receivable held in collection account in debtor’s name violated automatic stay even though debtor was not named as defendant because action sought to recover estate property); Global Industrial Technologies, Inc. v. Ace Prop. & Cas. Ins. Co. (In re Global Industrial
Technologies), 303 B.R. 753 (W.D. Pa. 2004), vacated in part, modified in part on other grounds, 2004 WL 555418 (Bankr. W.D.Pa. Mar. 19, 2004) (held, state court action brought by insurers for declaratory judgment regarding non-debtor’s rights in insurance policies it shared with debtor violated automatic stay even though debtor was not named as defendant in state court action because outcome of state action could affect debtor’s rights in shared insurance); Teachers Ins. & Annuity Assoc. of America v. Butler, 803 F.2d 61, 65 (2d Cir. 1986) (referred to A.H. Robins decision as case with “unusual circumstances”). Compare In re Transervice Logistics, Inc., 304 B.R. 805 (Bankr. S.D. Ohio 2004) (declining to extend automatic stay to non-debtor co-defendants because, unlike situation
in A.H. Robins, defendant-debtor only faced one suit, not thousands, and thus would not be barraged by discovery and litigation).

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g. Proceedings or claims arising post-petition are not subject to automatic
stay, although successful plaintiff must obtain relief from stay if it seeks to enforce judgment against estate.8 Bellini Imports, Ltd. v. Mason & Dixon Lines, Inc., 944 F.2d 199 (4th Cir. 1991) (automatic stay did not bar
institution of action arising out of alleged postpetition breach of contract);
Erickson v. Polk, 921 F.2d 200 (8th Cir. 1990) (lessor of farmland did not
violate automatic stay when it retook possession of property following
postpetition expiration of lease); In re Dominguez, 312 B.R. 499 (Bankr.
S.D.N.Y. 2004) (prepetition lapse of debtor-taxpayer’s redemption period
may constitute “cause” for lifting stay to allow tax authority to exercise its
rights in debtor’s real property; it did not relieve taxing authority’s
obligation to move first for modification of stay).

h. Automatic stay does not apply to post-petition defensive actions in a
prepetition lawsuit brought by a debtor. Stanwyck v. Beilinson, 104 Fed.
Appx. 616 (9th Cir. 2004).

2. Enforcement of prepetition judgment against debtor or its property (11
U.S.C. § 362(a)(2)). See generally Delpit v. Commissioner, 18 F.3d 768 (9th Cir. 1994) (held, appeal to enforce pre-petition judgment was subject to the automatic stay).

3. “[A]ny act” to obtain possession of debtor’s property, or to exercise
control over such property. 11 U.S.C. § 362(a)(3).

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7 The court ignored its own precedent in coming to this bizarre result, but justified it by reasoning that adjudication of a claim against the wholly-owned corporation would have an “immediate adverse economic impact” on the debtor. But see Feldman v. Trustees of Beck Ind., Inc. (In re Beck Ind., Inc.), 725 F.2d 880 (2d Cir. 1973) (court cannot enjoin suit against solvent independent subsidiary of debtor merely because stock is held by debtor in reorganization); In re Unishops, Inc., 374 F.Supp. 424 (S.D.N.Y. 1974) (bankruptcy court lacks jurisdiction to grant
a stay of court proceedings against subsidiaries).

8 Judiciary Code, 28 U.S.C. § 959(a), provides relief to holders of postpetition claims against a debtor from having to obtain leave from bankruptcy court to pursue claims arising from “acts or transactions in carrying on business connected with [estate] property.” 28 U.S.C. § 959. Section 959’s exception to the automatic stay is limited to postpetition claims arising from operation of the debtor’s business, and does not include acts associated with liquidation or administration of the bankruptcy estate. See In re Crown Vantage, Inc., 421 F.3d 963, 971-72 (9th Cir. 2005) (postpetition claim against trustee arising from liquidation of estate not subject to § 959 because not related to business operation); Carter v. Rogers, 220 F.3d 1249, 1254 (11th Cir. 2000); In re DeLorean Motor Co., 991 F.2d 1236 (6th Cir. 1993) (malicious prosecution claims against trustee arising from avoidance actions are not based on acts arising from business operation and thus not subject to § 959).

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a. A credit union that accepts and retains postpetition deductions from
chapter 13 debtor’s salary violates automatic stay. See, e.g., Town of
Hempstead Employees Federal Credit Union v. Wicks, 215 B.R. 316
(E.D.N.Y. 1997) (credit union’s four-month-long administrative hold on
chapter 13 debtors’ savings accounts violated automatic stay).

b. Letters of Credit. See, e.g., In re Kmart Corp., 297 B.R. 525 (N.D. Ill.
2003) (letters of credit are not property of debtor’s estate subject to
automatic stay; beneficiary not prevented from drawing on letter of credit
when account party is in bankruptcy); In re A.J. Lane & Co., Inc., 115
B.R. 738 (Bankr. D. Mass. 1990) (held, payment by third party on letter of
credit not stayed because it did not involve a transfer of debtor’s assets).

c. Creditors’ actions against debtor to obtain property fraudulently
transferred by debtor prior to bankruptcy are barred by the automatic stay.
See, e.g. Constitution Bank v. Tubbs, 68 F.3d 685 (3d Cir. 1995) (bank’s
action against guarantors for fraudulent conduct triggered automatic stay
when each guarantor filed a bankruptcy petition during fraud action).

d. Mortgagees’ postpetition foreclosure against real property subject to
deed naming debtor’s spouse a sole owner violated automatic stay because, although debtor only had arguable interest in the property, the
determination should be made by bankruptcy court before mortgagees
foreclosed. In re Chesnut, 422 F.3d 298 (5th Cir. 2005).

e. Debtor’s Tax Benefits. Circuits apparently are split regarding whether
a debtor’s tax benefits (e.g., net operating losses) are property of the estate, thus subject to the automatic stay. See In re UAL Corp., 412 F.3d 775
(7th Cir. 2005) (finding bankruptcy court’s injunction restricting trading in
debtor’s securities to protect tax benefits to be “problematic on the merits,” and questioning court’s reliance on Bankruptcy Code §§ 105(a) and 362 as basis for trading procedures order). Compare In Prudential Lines, Inc., 928 F.2d 565 (2d Cir. 1991) (finding debtor’s tax benefits to be estate property, and that automatic stay thus enjoined debtor’s parent from taking worthless stock deduction on parent’s tax return).

4. Any act to create, perfect, or enforce any lien against debtor’s property
(but not the perfection of mechanic’s lien9 — §§ 362(b)(3) and 546(b) — or when perfection occurs within the 10-day period after the time of effective transfer of the property, under §§ 362(b)(3), and 547(e)(2)(A)). 11 U.S.C. § 362(a)(4). See In re Fuller, 134 B.R. 945 (B.A.P. 9th Cir. 1992) (held, automatic stay prevents creation or perfection of lien, even by operation of law).

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9 The mechanic’s lienor will ordinarily be able to perfect its lien after bankruptcy for work performed prior to bankruptcy. See generally, In re Yobe Electric, Inc., 728 F.2d 207, 208 (3d Cir. 1984) (per curiam) (service of notice of intent to file mechanic’s lien did not violate stay since under state statute “perfection of mechanic’s lien ‘relates back’ to the installation of the first material”); In re Lionel Corp., 29 F.3d 88 (2d Cir. 1994) (held, no automatic stay violation resulted from mechanics’ lienors’ post-petition serving notice of lien upon lessors and
chapter 11 debtor lessee, when New York law permitted perfection of filed mechanics’ lien after another entity had acquired rights to the property).

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a. Sections 362(b)(3) and 546(b)(1)(A), read together, set the
boundaries of this exception.

(i) Section 362(b)(3) subjects a creditor’s right to “perfect, or
to maintain or continue the perfection of, an interest in property” to
Section 546(b) of Code. 11 U.S.C. §362(b)(3).

(ii) In turn, Section 546(b) limits the trustee’s powers to avoid statutory liens by providing that they “are subject to any generally applicable law that permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of perfection.” 11 U.S.C. §546(b)(1)(A) (emphasis added); see, e.g., In re AR Accessories Group, Inc., 345 F.3d 454, 458 (7th Cir. 2003) (held, priming statute need not contain language expressly providing for retroactive perfection in order to trigger exception provided in 11 U.S.C. §546(b)(1)(A)); In re
Hayden, 308 B.R. 428 (B.A.P. 9th Cir. 2004) (held, towing operator did not violate automatic stay in refusing to surrender possession of debtor’s vehicle, which was towed prepetition, unless debtor first paid towing charges because towing operator was merely acting to maintain or continue possession of its lien, not to enforce it).

5. Any act to create, perfect, or enforce a lien against debtor’s property for
prepetition claims. 11 U.S.C. § 362(a)(5). See, e.g., In re Birney, 200 F.3d 225
227 (4th Cir. 1999) (Section 362(a)(5) prohibits “any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title”).

6. “Any act to collect, assess, or recover a prepetition claim against the
debtor.” 11 U.S.C. § 362(a)(6). Pertuso v. Ford Motor Credit Co., 233 F.3d 417,
423 (6th Cir. 2000) (a course of conduct violates § 362(a)(6) if it “(1) could
reasonably be expected to have a significant impact on the debtor’s determination as to whether to repay, and (2) is contrary to what a reasonable person would consider to be fair under the circumstances”) (quoting In re Briggs, 143 B.R. 438 453 (Bankr. E.D. Mich. 1992)); see also In re Diamond, 346 F.3d 224, 227-28 (1st Cir. 2003) (settlement negotiations challenging Chapter 7 debtor’s discharge do not violate the automatic stay per se, but creditor’s threat to seek revocation of debtor’s real estate license during negotiations was coercive, thus dismissal of debtor’s complaint proper); In re Optel, Inc., 60 Fed.Appx. 390 (3d Cir. March 25,
2003) (sale agreement between creditor and debtor provided that debtor either pay $6 million lump sum payment or, if creditor requested, $10 million over time; held, automatic stay prohibited creditor from requesting the $10 million deferred payment, therefore creditor was only entitled to distribution on $6 million claim); In re Jamo, 283 F.3d 392, 399 (1st Cir. 2002) (“a creditor may engage in post petition negotiations pertaining to a bankruptcy-related reaffirmation agreement so long as the creditor does not engage in coercive or harassing tactics”).

7. Setoffs of any prepetition debt owing to the debtor. 11 U.S.C. § 362(a)(7).
See Newbery Corp. v. Fireman’s Fund Ins. Co., 95 F.3d 1392 (9th Cir. 1996)
(right of setoff is subject to automatic stay provisions of chapter 11); Citizens Bank of Maryland v. Strumpf, 516 U.S. 16 (1995) (temporary administrative freeze by bank not a stay violation or setoff; intent to settle accounts permanently is required for setoff within meaning of automatic stay provisions). Compare Jimenez v. Wells Fargo Bank, N.A., 335 B.R. 450 (Bankr. D. N.M. Dec. 21, 2005) (temporary administrative freeze by bank, without right of setoff, violated automatic stay); In re Calvin, 329 B.R. 589 (Bankr. S.D. Tex. 2005) (bank’s administrative freeze of debtor’s account violated automatic stay when bank was not creditor of debtor and thus had no right of setoff); In re Cullen, 329 BR. 52 (Bankr. N.D. Iowa 2005) (bank’s administrative freeze of account jointly held by debtor and debtor’s father violated automatic stay because freeze was intended to continue indefinitely until bankruptcy case was closed; bank did not have valid
right of setoff because funds in account were property of debtor’s father and mutuality requirement for setoff thus was lacking).

a. N.B.: The automatic stay, however, does not prevent a creditor
from exercising its right of recoupment.10 See, e.g., In re Slater Health
Center, Inc., 398 F.3d 98 (1st Cir. 2005) (right of recoupment entitled
government to recoup prepetition overpayments to debtor-health care
provider by reducing postpetition payments to debtor); In re Holyoke
Nursing Home, 372 F.3d 1 (1st Cir. 2004) (same); In re Anes, 195 F.3d
177 (3d Cir. 1999) (held, doctrine of recoupment did not apply so as to
permit pension plans to deduct loan payments from debtors’ postpetition
paychecks because the payments were not part of the same transaction); In
re Delicruz, 300 B.R. 669 (Bankr. E.D. Mich. 2003) (“recoupment reduces
or extinguish[es] a debt arising from the same transaction, and is not
stayed by the bankruptcy”). But see York Linings Int’l, Inc. v. Harbison-
Walker Refractories Co., 839 N.E.2d 766 (Ind. App. 2005) (although
automatic stay does not bar creditor from exercising right of recoupment,
stay does prevent creditor from asserting counterclaim for recoupment in
litigation because such a counterclaim seeks affirmative relief).

_____________________________________

10 “Recoupment” has been defined as follows: “. . . so long as the creditor’s claim arises out of the identical transaction as the debtor’s, that claim may be offset against the debt owed to the debtor, without concern” for the Code’s setoff limitations. In re University Medical Center, 973 F.2d 1065, 1080 (3d Cir. 1992). Recoupment in bankruptcy has been narrowly construed by courts because it violates the basic bankruptcy principle of equal distribution. In re B & L Oil Co., 782 F.2d 155, 158 (10th Cir. 1986) (“[a] fundamental tenet of bankruptcy law is that . . . [once] a petition is filed, debts that arose before the petition may not be satisfied through post-petition transactions. This is seen in bankruptcy restrictions on setoffs [and recoupment].”); In re McMahon, 129 F.3d 93,
97 (2d Cir. 1997) (“in light of the Bankruptcy Code’s strong policy favoring equal treatment of creditors, recoupment . . . should be narrowly construed”).

———————-

8. Commencement or continuation of a proceeding before the United States Tax Court concerning the debtor. 11 U.S.C. § 362(a)(8). See, e.g., Halpern v. C.I., 96 T.C. 895 (U.S. Tax Ct. 1991) (held, automatic stay bars commencement or continuation of any proceeding in Tax Court, regardless of whether claim relates to prepetition or postpetition tax year deficiencies).

As of October 17, 2005, § 362(a)(8) is limited to proceedings
concerning corporate debtor’s tax liability for taxable period the
bankruptcy court may determine or, if debtor is individual, to tax
for taxable period ending before date of order for relief.

9. Only affirmative acts are stayed. Section 362 applies only to affirmative
acts against the debtor or its estate.

a. The automatic stay does not affect, and the court may not exercise
its equitable powers to stay or toll, the automatic transfer of rights such as
that occurring by the expiration of a statutory period of redemption.
Canney v. Merchants Bank (In re Frazer), 284 F.3d 362 (2d Cir. 2002)
(did not stay mortgagee’s act of recording a certificate of non-redemption;
held, expiration of statutory period is not an “affirmative act” and
automatic stay did not apply).

b. Omissions and waivers are not stayed by the Code because they
are not affirmative acts. See e.g. Mann v. Chase Manhattan Mortg. Corp.,
316 F.3d 1, 6 (1st Cir. 2003) (mortgagee’s failure to submit
preconfirmation request, pursuant to bankruptcy statute governing rights
of oversecured creditors, to have its postpetition attorney fees included in
its allowed secured claim was not sort of overt, affirmative act that
violates stay).

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Why Is It Impportant For Nevada Homeowners to Protect their Homes?

Why You Need to Know About Nevada Mortgage Loans

What Are Your Option About Missing Quite a Few Payments

What is Notice of Default and Election to Sell

What Are the Requirements for Posting NOD?

In Nevada, You Have What is called Danger Notice

What do you need to know about Notice of Sale

Notice to Tenants

Reinstatement Before Sale

The Foreclosure Sale

Deficiency Judgment Following Sale

Redemption Period

Eviction Following Foreclosure

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