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  1. #1
    Join Date
    Feb 2008
    Posts
    9

    Default Order Excusing Lender from Bankruptcy Stay

    My question involves a mortgage in the state of: ILLINOIS
    I HAVE BEEN GOING THRU THE PROCESSS OF GETTING A LOAN MODIFICATION WITH CHASE OF AND ON FOR OVER 4 YEARS.During that time i have filed several chapter x111.Each time finally getting the attn of CHASE and they would than start modification process again.
    The problem is the bankruptcy court and chase attys got upset with the mulitple bkcy filings.The judge issued a bar for 1 year whcih ended in july of 2011.
    Chase attys went in after that date and field a motion for a REM BASICALLY EGTTING AND ORDER THAT WOULD NOT HAVE THEM ABIDE BY ANY STAY OF A BANKRUPTCY FILING WITHIN 2 YEARS FROM 7/2010.
    tHE QUESTION I HAVE IS THE FACT THERE MOTION AND HEARING CAME AFTER THE CASE WAS DISMISSED AND I DIDNT GO TO COURT BECAUSE I THOUGHT IT WAS OVER CAN IT BE EASLIY VACATED.
    Also has anyone went in and had Rem order lifted.Im hoping that the current loan modifiaction im waiting on will go thru and i will be fine.But if something goes haywire my only solution will be too file a chapter x111 again and this time complete the process.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Motion in Rem

    I expect that the order covers any new bankruptcy you file with that court. Start by reading the order and, if you don't understand what it says, have a bankruptcy lawyer read it and explain it to you. We cannot interpret language we have never seen.

    Given that the purpose of the order is to prevent you from abusing the bankruptcy process to the detriment of your lender, I don't see why a court would be apt to lift the order such that you could again subject your lender to the stay.

  3. #3
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: Motion in Rem

    I can imagine that the court would definitely get upset with multiple bankruptcy filings. It would appear that you are abusing the courts in order to exploit the stay (and the rest of the proceedings) for your personal benefit. Getting the stay lifted isn't all that hard in many cases, in this case it ought to be a slam dunk. Frankly, you're flirting with the court disqualifying you from making any more bankruptcy filings.

  4. #4
    Join Date
    Sep 2010
    Posts
    478

    Default Re: Motion in Rem

    The bk court, which sits in equity, has the right to retain jurisdiction over a previously filed case and any order it issued out of that case. Under 11 USC 105(a):

    "The court may issue any order, process or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules or to prevent an abuse of process."

    You are a serial filer therefore your actions fall under 11 USC 362(c) and (d) as it relates to the lifting of the automatic stay.

    Under (d)(4) a creditor who is secured by real property has the right to seek in rem relief by asking the bk court to find that the actions of a debtor were part of a scheme to delay, hinder and defraud the creditor as it relates to the real property. If such a finding is made (and apparently such was made in your case) the court can grant an order that takes away the protection of the automatic stay in any subsequently filed case. Such an order “shall be binding in any other case. . . purporting to affect such real property filed not later than 2 years after the entry of such order by the court. . .”

    The lender asked the Judge to modify his prior order prohibiting you from filing for 1 year. He was asked to extend the in rem protections afforded creditors under 362(d)(4) for the additional year. I see nothing wrong with that.

    Basically the game you have been playing is over.

    Des.

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