Expert: Los Angeles Bankruptcy Lawyer Leon D. Bayer - 12/5/2011

Question
QUESTION: What can one do when the judge grants a lift to stay motion on real estate?
I would like to appeal, but my attorney said he can't appeal the ruling. He said the only thing that can be done is called  Declaratory Relief?  Which he says costs $10,000. This seems odd to me.

Thanks so much in advance.

ANSWER: Dear Marc,

Something that drives me crazy is when lawyers fail to explain things to their own clients! I suspect that is happening here.

Appeals are extremely complicated. Generally speaking, an appeal may be proper when the judge has made a decision based on a clearly erroneous interpretation of law, or has committed an abuse of discretion. I believe something like 75% of all appeals result in affirming the lower court ruling.

I can try to give you better insight if you submit a new question containing more specific information, such as the value of the property, the amount owed on each lien, the payment status of each lien, the type of bankruptcy, any history of prior bankruptcy filings concerning this property, the date you acquired title, and the proceedural status of your bankruptcy. It would also be helpful to know, in your own words, why you think the stay should not have been lifted.

If I hear back from you, I'll try to give you a more specific answer.

If you or other readers want to keep up with my blog postings about life in and out of bankruptcy, you can follow my blog at http://www.bankruptcyblogger.org/, my personal web site at http://www.debt-relief-bankruptcy.com/ and my Los Angeles bankruptcy guide http://www.thebankruptcyguide.net/

---------- FOLLOW-UP ----------

QUESTION: Hi and thanks so much for answering my question.

I wanted the Stay denied so I can stay in my home.

I have a loan of $108,000 with a private lender and they sold my property at an auction to a bpf about two weeks after I filed a Chapter 13 in pro per (big mistake, I know). I hired an attorney who said he would get the property back through an Adversary Proceeding.  While waiting for the Adversary Proceeding, the bpf filed an Motion to Lift the Stay so they can evict me from my house.

My attorney is telling me that the judge terminated the stay which means the auction must be re-done, but one of the attorneys for the bpf is saying that the judge granted the stay and they can move forward with an eviction. I asked my attorney for something in writing that states a new sale will be done so I can show this to my eviction attorney and he told me I would have to pay him $10,000 for a Declaratory Relief from the judge. I also wanted to appeal the ruling and he said no, because the ruling benefits me. I am so lost.
Thanks again for your help.  :-)

Answer
Dear Marc,

Termination of the stay will ordinarily mean that the bankruptcy court is not protecting you from eviction. However, without being able to read the court file, I have no idea if you got the story straight, or if you got it backwards.

A sale of the property occuring after you have filed a BK will ordinarily be void, even if purchased by a BFP. There are exceptions, as when there have been previous bankruptcy filings.

If you are able to come see me with all the papers I would be glad to give you a free consultation. I am afraid that without all the paperwork, I can't really explain it. By all means, you should definately see another attorney immediately.

If you or other readers want to keep up with my blog postings about life in and out of bankruptcy, you can follow my blog at http://www.bankruptcyblogger.org/, my personal web site at http://www.debt-relief-bankruptcy.com/ and my Los Angeles bankruptcy guide http://www.thebankruptcyguide.net/