While in bankruptcy can a mortgage company file forclosure on a home that is in stay?

Question

I was in bankruptcy last year and the Mortgage was in stay and took my payments, they also filed forclosure proceedings on me. Is this legal?

Answer 1

They would need permission from the Bankruptcy Court to go ahead with foreclosure proceedings, but someone (you) would have had to notify them of the bankruptcy filing before they could be forced to stop. At that point they could file a motion "for relief from the automatic stay" with the Bankruptcy Court, and because they are a "secured" creditor (they have a lien on the land) they would probably be allowed to be excused from the stay if you were not making payments.

Answer 2

There are things that we would need to know...
1. Did they file a Motion for Relief from Automatic Stay?
2. If so, was it granted?

If so, then what they did was completely legal. A Motion for Relief from Automatic Stay is a creditor's tool to get them out of the bankruptcy, where they can proceed with a forclosure in state court. It will be granted if they are not adequately protected. All adequate protection really means is "are you up to date on your payments"? If not, it would most likely be granted in the creditor's favor. Also, if you did not answer the Motion, it would be granted in the creditor's favor. The good news: you will not have to pay them a dime toward whatever deficiency results from a foreclosure sale, as it was included in your bankruptcy. Under some state law, even if you forgot to include something in your bankruptcy filing, it is discharged if it was a Chapter 7 no-asset case (meaning there was nothing for the trustee to latch on to and sell).

NOW, if there was no Motion for Relief from Automatic Stay filed, and the creditor was aware of the pending bankruptcy, it would seem that they violated the bankruptcy code. Technically, they should not have filed anything in state court if they were aware of the bankruptcy filed by you.

Now, also, to protect myself here- do not take anything I post as legal advice- consult an attorney in your own jurisdiction.

Answer 3

They can file whatever they want but a stay is a stay and the case will not proceed to judgment.

Under Section 362, a secured creditor able to demonstrate that his interests in property held by the debtor are not adequately protected may obtain some form of appropopriate relief during the pendency of the case. (for example, if the mortgagee came by the house and noticed that the bricks were being removed from it, they can get an approporiate order to stop it)

Answer 4

not sure but I thought a Stay was when everything was put on hold and no one could do anything you or the companys you owe money too....the best thing you can do is talk to a lawyer that deals with real estate law.

Answer 5

Prior answer is correct.

I would suggest you read the article "New Bankruptcy Law – Where’s The Consumer Protection?" you can view it at:
http://www.sandiegolawyerforyou.com/san-diego-bankruptcy-law-update.htm


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