IT IS POSSIBLE TO CHALLENGE THE ALLEGED CREDITORS MOTION FOR RELIEF FROM THE AUTOMATIC STAY IN BANKRUPTCY COURT IN CALIFORNIA
Here is a copy of an email sent to us by the California Central District Bankruptcy Court after we defeated Chase in their motion to lift the automatic stay.
Based on the strength of the in re Veal case, and other arguments as to standing and real party in interest, the Court determined Chase could not present a colorable claim that they were the party entitled to enforce the note and the stay was not lifted. If you are in a chapter 7, Chapter 11, or Chapter 13 bankruptcy and you have good faith reason to believe that based upon the attachments filed with the motion to lift the stay the alleged creditor cannot prove a colorable claim, you may want to investigate launching an opposition. These lenders will try almost anything in Court and unless challenged, they will normally get their way. Every debtor is entitled to the benefits of the automatic stay until a real creditor can come and lift the stay. Kudos to the judge for applying the law and demanding proper legal proof.
For California lawyers assisting clients in this area, including bankruptcy attorneys, you can purchase a copy of our pleading at Foreclosure Warrior – Foreclosure Defense training and tools for lawyers. When your purchase our opposition to the motion to lift the stay, you will get not only the motion, but you will get a 3 page guide sheet with a legal argument that can be made, and some other tips to handling the lift-stay case.
Here is a portion of what the guidesheet says (specifically as to the legal argument):
What to say at the hearing (some tips)
The main thing to keep in mind is the judge may think your client wants the house for free. You need to dispel this myth right off the bat.
(1) Your honor, this is a case of real party in interest and standing. The alleged creditor in this case cannot, and did not establish through their attachments to their pleading that they are the true creditor of the Debtor’s loan, and as such, they have not shown they are the real party in interest, or that they have legal standing to bring their motion.
(2) This is not something that can just be taken for granted, and these are threshold issues in every federal court case, including in this bankruptcy court.
(3) A Debtor is entitled to the benefits of the automatic stay in bankruptcy until, and unless some entity can establish a colorable claim that they own the loan at issue and are the secured creditor.
The rest of the argument to fight the motion for relief from automatic stay in bankruptcy court can be found at our Foreclosure Warrior Website.
On our Foreclosure Defense website we have provide a sample of what the memorandum of points and authorities to the opposition to the lift stay motion looks like.
You can hear more about this motion and the win against Chase on our real estate blog radio show.