Legal Question in Bankruptcy in California

voluntary dismissal when there is a motion for stay from automatic relief

Hello, I filed chapter 7 and the meeting of creditors is on Monday June 14th.

The reason I filed was so my income would cover my house payments.The mortgage company has motioned for relief from automatic stay in with the court. I was out of town until two days ago and just opened it yesterday.

They had told me they would give me something called a silent second due to my unemployment and taking in a roomer to help cover my mortgage.

It seems clear to me that they intend to ask the court to sell my home now.

If this is the case I would rather just sell my home and not go forward with the bankruptcy.

I am on SSI and the amount from the sell of my home will cover the other debts that would have been discharged in order to keep the house. It is better for me to not have the bankruptcy on my credit history if I want to try and get another home. If the court sells my home, which has aprox $40,000 in equity (which is a low estimate), I will have to pay the 9500 I owe in other debts anyway right? I do have a $17,000 exemption because I am 100% disable and had to go back on SSI since I have not been able to find a job for over a year. Not for lack of trying of course, with over 275 applications to prove it.

S


Asked on 6/11/04, 3:53 pm

2 Answers from Attorneys
John Vos Vos & Associates

Re: voluntary dismissal when there is a motion for stay from automatic relief

Homestead for disabled person in California was raised recently to $150,000.

So, if you sell your house before the foreclosure is completed, all your equity may be exempt.

Tell the Judge that is what you want to do, and generally the Court will allow time for your sale escrow to close.

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Answered on 6/14/04, 7:57 pm
Gary Fraley California Bankruptcy Attorneys

Re: voluntary dismissal when there is a motion for stay from automatic relief

You are in DEEP trouble and need immediate advice. Here are the issues: 1. You do not have the automatic right to dismiss your case in Chapter 7. That is true only if you were in Chapter 13 and you did not convert. 2. You may have a motion that requires a WRITTEN RESPONSE filed with the court at least 2 WEEKS prior to the hearing. If you have less than 2 weeks you may not be allowed to defend it at all and the court my remove it from the calendar and grant their motion. Occasionally the lender may file this motion with no written response. We need to speak immediately so I can help you save the equity in your home. You do likely have a successful defense if you have not already lost the right to defend it. I am a certified specialist with 27 years of Bankruptcy experience and I have saved thousands of homes from foreclosure. If you have already had a Notice of Default, you likely have received 1-3 blue tri-fold letters from me. If you can email me your phone number to [email protected] I will try to talk to you this weekend. In a phone call I can get the information I need to advise you what you can do to save this home. It sounds like you got some very bad advice from someone as to how to save your home. I will give you a free no pressure consultation. My office phone is 485-5444. If we need to do anything I would have to work you in between clients on Monday but I will stay late if I need to for you. You can tell my staff that though it is better that we talk right away. Oh, please give me your case number so I can review your documents online. it is the number that starts "04-".

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Answered on 6/12/04, 9:27 pm


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