Motion by lender to lift automatic stay (chapter 7) on foreclosure with already "scheduled" auction date.

Asked over 1 year ago - Mesa, AZ

Original foreclosure auction date was scheduled for march 21 then in Feb the lender postponed to april 16. I filed my petition with court for chap 7 on march 13 AFTER the lender had already postponed and changed the auction date. Mortgage lender has filed motion to lift the automatic stay to proceed with the foreclosure. Does this mean they can change the april 16th auction sale date to an earlier date? For example: could the auction sale date be moved up to april 5th after listing was set for april 16?
*I have an attorney and am asking this question due to the fact that I read email after business hrs today and now will worry all weekend until Monday to get an answer on whether they can move faster than the "currently" listed auction date.

Attorney answers (4)

  1. Guy W Bluff

    Pro

    Contributor Level 13

    3

    Lawyers agree

    Answered . Procedurally, the scheduled sale was "stayed" upon the filing of your bankruptcy petition as the lender and any other creditor cannot take any action to collect on a debt, even a secured debt like your home, without obtaining permission from the Bankruptcy Court to proceed with the sale.

    The Bank is following the rules provided in the Bankruptcy Code by filing a Motion to "Lift Stay" and thus have the court lift the initial automatic stay to permit the sale to proceed. Unless the house has equity in it and is otherwise necessary for the successful reorganization of the debtor as would be in a Chapter 13 proceeding, the Court will in almost all instances lift the stay to allow the sale to proceed.

    Attorney is Licensed in Arizona, California, and Colorado only. The opinions and comments offered are in the... more
  2. Gary D. Bollinger

    Pro

    Contributor Level 19

    1

    Lawyer agrees

    Best Answer
    chosen by asker

    Answered . You wrote, "Motion by lender to lift automatic stay (chapter 7) on foreclosure with already "scheduled" auction date. ... Does this mean they can change the april 16th auction sale date to an earlier date?"

    A: The Motion for Relief seeks permission from the federal bankruptcy court to proceed with a remedy that lies under State law; hence, if State law allows the acceleration of the date of an auction, the remedy would require recouse to state law procedure after the grant of the order for relief from stay.

    In Eastern District of MO, where I practice, there would be no time to seek an acceleration of the auction date following an order granting relief from the bankruptcy stay. I suspect your state is similar.

  3. Paula Brown Sinclair

    Contributor Level 20

    3

    Lawyers agree

    Answered . Most likely the objective of the stay-relief motion is to preserve the April 16 date. Notice of foreclosure sales must be public and typically for fairly long periods of time. You are correct that the most accurate information will come from your own attorney. Rather than obsess on Avvo, your efforts will be better spent on arranging to move.

    Best wishes for an outcome you can accept, and please remember to designate a best answer.

    This answer is offered as a public service for general information only and may not be relied upon as legal advice.
  4. Michael T Millar

    Pro

    Contributor Level 19

    2

    Lawyers agree

    Answered . A bankruptcy does not affect a secured debt such as a mortgage. Thus, it is common for a mortgage lender to file to lift the automatic stay. All this means is that the mortgage lender can proceed with the foreclosure in state court. Whether or not the mortgage lender can change dates in the state proceeding is governed by your state's foreclosure laws.

    If this answer was helpful, please mark it as helpful or as a best answer. This answer is for general education... more

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

27,409 answers this week

3,046 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

27,409 answers this week

3,046 attorneys answering