All posts in Automatic Stay

Automatic Stay and Discharge Injunction Violations Program This Saturday – June 9, 2018 at 11am.

Saturday, June 9, 2018
11:00 a.m. to 1:00 p.m.
Southwestern Law School
 Automatic Stay and Discharge Injunction Violations
SPEAKERS:
  • Christopher P. Burke
  • Raymond H. Aver
  • M. Jonathan Hayes, Moderator
     There have been two stunning decisions recently dealing with the common issue of violations of the automatic stay and the discharge injunction. The first is In re Sundquistwhere Judge Christopher Klein in Sacramento awarded $45 million in damages and sanctions against a bank that held a foreclosure sale notwithstanding the prior bankruptcy filing. In In re Marino, Judge Bruce Beesley in Reno, Nevada awarded $119,000 in sanctions and damages when the bank continued contacting the debtor post discharge.
     Attorney Christopher Burke represented the Debtors in the Marino matter. After the court awarded the sanctions, Chris sought attorneys fees of $33,000 which he was awarded and later another $8,000 when the attorneys fees were not timely paid.
     In addition, Chris has filed a class action suit in district court against Ocwen alleging violation of the Telephone Consumer Privacy Act (“TCPA”). Ocwen moved to dismiss on the basis that the bankruptcy court’s ruling was res judicata. The district court denied that motion. Marino v. Ocwen Loan Servicing, LLC, 2017 WL 3671294 (USDC, D. Nevada 2017).
     The panel will also discuss the new 9th Circuit decision of In re Taggart, April 23, 2018, which ruled that the subjective knowledge of the creditor is a defense to a charge of violation of the discharge injunction. Mr. Hayes is involved in the appeal of Taggart as amicus.
     2 Hours of MCLE Credit Provided.
Times:
Registration: 10:00am – 11:00am
cdcbaa Membership Meeting: 10:30am – 11:00am
Program: 11:00 am – 1:00 pm
On-site parking $10.00  ”

Automatic Stay: a Deep Dive

I wanted to see how much I knew about the automatic stay besides it’s general parameters so I opened section 362 and realized that at 6,518 words, section 362 is the longest section in the Code broken up into 15 parts (a-o).   There are 8 things that are “stayed” followed by 28 things not stayed.  Below are parts a-k for now and the rest to follow.  Pop quiz — I discovered a way to invoke the powers of the “stay” without ever filing bankruptcy (that’s my next blog post).

Let’s take a deep dive into the labyrinth:

Part (a) – 8 things that are Stayed 

  1. Commencement or continuation of any action against the debtor that could have been commenced prepetition;
  2. Enforcement of prepetition judgment
  3. Obtain possession or exercise control over property of the estate
  4. Recover re: lien against property;
  5. Recover re: prepetition secured claim
  6. Recover prepetition claim
  7. Set off
  8. US Tax Court re: corporate debtor re: tax liability

Read more…

Notifying the State Court of the Automatic Stay

More stuff I didn’t know.  A person on the California Bankruptcy Specialists listserve complained that the Superior Court in Orange wanted him to pay a first appearance fee in order to file a Notice of Automatic Stay.  A tip of the hat to Frank X. Ruggier for his response, ”If you haven’t appeared, it is the other parties responsibility to file Notice of Stay.”

ATTORNEY’S RESPONSIBILITIES FOR GIVING OF REQUIRED NOTICE TO COURT
Rule 3.650(a) of the California Rules of Court requires the party who requested or caused a stay of the proceedings to notify the court of its existence, unless that party has not appeared or is not subject to the jurisdiction of the court, in which case the plaintiff in the pending action must immediately notify the court of the stay.  Therefore, if you or your assignee commenced a civil action to recover attorney’s fees and/or costs from the client, and the clients has not appeared in the action, it is the responsibility of you or your assignee to notify the court of the automatic stay.  Judicial Council Form CM-180 has been adopted for mandatory use in giving notice of a stay of proceedings, and a copy is attached for your use.