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  1. #11
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    Nov 2019
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    24

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    Thank you all for your help in this. It's in my best interest to seek to lift or modify the stay so that's what I'm working on now. Unfortunately I have a bad habit of looking to far ahead of things so now I have a new question: If the bankruptcy court rules against me, can I appeal their decision to the district court? Not sure if I mentioned this but the bk case is in NY and I am in GA.

  2. #12
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    Oct 2006
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    15,730

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    Quote Quoting nobeefcow
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    Thank you all for your help in this. It's in my best interest to seek to lift or modify the stay so that's what I'm working on now. Unfortunately I have a bad habit of looking to far ahead of things so now I have a new question: If the bankruptcy court rules against me, can I appeal their decision to the district court? Not sure if I mentioned this but the bk case is in NY and I am in GA.
    The bankruptcy court has put together a plan for liquidating the assets and paying off the credits. I don't see how you can possibly still be allowed to sue the debtor, therefore I don't see any way that you can get a stay modified or lifted.

  3. #13
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    Nov 2019
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    24

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    In the beginning of the bk case, the stay was lifted to allow another creditor to proceed in his state court based on personal injury claims and using somax test. I'm going to take that angle and use my pro se ignorance to the fullest extent that the law will allow to excuse any delay in filing my motion. I also have claims of fraud and malicious intent that the court may find as non-discharged under 11 U.S. Code  523 and let them go forward. I also have a state law claim which if I'm reading case law correctly, that must be heard in my state. Just to provide more information, I'm a consumer creditor. The debtors bk has been in a few online industry publications but it hasn't made huge headlines as far as I know. To that extent, limited relief from the stay has already been granted to defend counterclaims by the debtors and buyers of the debtors estate.

  4. #14
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    Jul 2018
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    1,776

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    Quote Quoting nobeefcow
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    If the bankruptcy court rules against me, can I appeal their decision to the district court?
    Yes.

  5. #15
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    Nov 2019
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    24

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    I meant to say to my local district court. Now that I'm thinking of it, would it advantageous to seek a declaratory judgement from my local district court on what claims may go forward rather than ask the bankruptcy court to lift the stay?

  6. #16
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    Oct 2006
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    15,730

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    Quote Quoting nobeefcow
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    I meant to say to my local district court. Now that I'm thinking of it, would it advantageous to seek a declaratory judgement from my local district court on what claims may go forward rather than ask the bankruptcy court to lift the stay?
    A bankruptcy court is a federal court. You cannot appeal a federal decision to a state or local court. You would have to appeal it to a higher federal court. You were already told that a federal court trumps a state court. I really do not understand what you hope to accomplish. You are not going to get any more than what the bankruptcy court will give you in the liquidation. I don't understand what you think a state court can even do for you at this point.

  7. #17
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    Jul 2018
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    1,776

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    Quote Quoting nobeefcow
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    I meant to say to my local district court. Now that I'm thinking of it, would it advantageous to seek a declaratory judgement from my local district court on what claims may go forward rather than ask the bankruptcy court to lift the stay?
    Not really sure what you're talking about. There's no such thing as a "local district court" in New York. State courts are called supreme courts or county courts and have nothing to do with bankruptcy matters. On the federal level, the State of New York is divided into four districts. The Eastern District covers all of Long Island. The Southern District covers NYC (other than Brooklyn and Queens) and about half a dozen counties just north of NYC. The Western District covers that part of the state west of Ithaca (roughly). The Northern District covers the rest of it. Bankruptcy court decisions are generally appealed to district court (e.g., if you don't like a decision of the U.S. Bankruptcy Court for the Western District of New York, you'd generally appeal it to the U.S. District Court for the Western District of New York). You would not file a separate declaratory judgment action because you don't like a BK court ruling.

  8. #18
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    Nov 2019
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    24

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    To clarify and if you refer to my post #11, the debtors are in NY and my case is pending in Georgia Federal Court. That is what I meant by my local district court, local meaning in my local state and district. Sorry for the confusion.

    So can I appeal a NY BK court decision to Federal Court in my district? As for the declaratory judgement, that would be in lieu of a motion for relief from the stay to but solely to determine dischargeability of a debt. I mean if these matters are normally appealable to a higher court, why not just skip the BK court? lol

  9. #19

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    No, you would appeal a NY bankruptcy courts decision to the district bankruptcy appellate panel that is over the Court you are appealing from. Unless you get permission from the NY bankruptcy court you may not proceed in any court, state or federal.

  10. #20
    Join Date
    Nov 2019
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    24

    Default Re: Motion Filed Before Defendant Filed Bankruptcy

    Is there a deadline for ruling on a motion for preliminary injunction, equitable and declaratory relief? I thought that an injunction was like an emergency and had a time limit.

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