Legal Question in Real Estate Law in California
I filed bankruptcy on 3/3/10 to stop the scheduled foreclosure sale of my home on 3/4/10.
I have now found significant funds which would enable me to pay the past due payments, but it will take me 6-8 weeks to get them - and I cannot get them while in BK because the BK court has a hold on them. If I withdraw my bankruptcy filing now, how much notice does the lender need to give me before they can reschedule the foreclosure sale of my home?
3 Answers from Attorneys
Secured debts are not covered by bankruptcy so your filing should have had no effect. If the bank canceled the sale date instead of merely rescheduling it, then they must start all over with the notice period, etc., which requires about 108 days.
I respectfully disagree with the statement that "secured debts are not covered by bankruptcy." You did not say why you think "the BK court has a hold" on your funds. Do not dismiss or withdraw your BK until you have had a detailed, in person discussion with a BK lawyer.
I'm assuming that since you mention the sale was scheduled for 3/4/2010, that the trustee recorded a notice of sale. When you filed bankruptcy, it triggered what is known as the automatic stay. The automatic stay of the bankruptcy court created a postponement of the trustee's sale, pursuant to Civil Code section 2924g subd. (c)(1). The trustee is required to postpone the sale, and if the postponement does not exceed 365 days, does not have to record a new notice of sale. This means that the beneficiary is either going to lift the automatic stay, and proceed with the trustee's sale, or you are going to cancel and the sale will go forward. It will happen as fast as the trustee can give notice under the original notice of sale. I suggest that you read all of Civil Code section 2924g if you do not agree with me.
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