Legal Question in Bankruptcy in California

If a foreclosing mortgage trustee chooses to ignore the automatic stay afforded to a homeowner by a current and active bankruptcy filing according to 11 USC 362(a), and where no relief from stay has been granted or even requested, is that a felony of some sort, or only a civil matter?

Asked on 4/20/14, 8:23 am

2 Answers from Attorneys

Robert F. Cohen Law Office of Robert F. Cohen

If the foreclosing entity had notice of the bankruptcy (which sometimes doesn't happen) and the auction is held, it is a violation of the automatic stay. The auction could be unwound in bankruptcy court. A motion should be filed quickly, however, since the new purchaser might take further steps to record the purchase and sell the property to a third party who has no knowledge of the violation.

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Answered on 4/20/14, 9:04 am
Charles Andersen Charles Andersen, Atty

Any actions taken in violation of the automatic stay are void, meaning it's if they never happened.

Violation's of the stay are a civil matter not a criminal matter, which could potentially be punshed as a civil contempt.

The usual remedy however is money damages and other relief to the aggreived filer. However, trustee's rarely ignore a bankruptcy stay. This leads me to believe that the trustee may have some reason to believe the stay is not in place. For example, in repeat filings the stay is only in place for 30 days, unless a motion to extend the stay is filed and granted within a certain time frame.

Could you be a self represented repeat filer who didn't take the proper action to protect yourself?

Either way, you will probably need an attorney now who knows how to take the proper steps in a manner that is acceptable to the court.


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Answered on 4/20/14, 10:59 am

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