I asked a similar question in the bankruptcy section, but don't think I really asked the right question. A Final Judgment was entered in my foreclosure case the same day that I filed for Ch. 13 bankruptcy. The bankruptcy petition was filed at 10:48 am. The FJ hearing was set for 10:30 (I didn't receive notice, but that is another issue). I do not know when the Judge signed the FJ or when it was filed with the Court Clerk. I'm going to call tomorrow to see if they have an exact time. It was filed in the official county records two days later. My question is when does the FJ become official? When the Judge signs it? When it put on the docket? When it is recorded in the official records? And if the clerk doesn't have an exact time how can I show that the bankruptcy stay was in effect
The Court Clerk told me that because the FJ was filed in court that there is no exact time available.
Did you file your Chap 13 with an attorney? If so, your attorney can give you advice as to this issue. However, given your intent in your Chap 13 case, the timing of the Chap 13 filing and the judgment may be irrelevant.
To directly answer your question - yes, if the Chap 13 was filed first, the automatic stay would cause the subsequent foreclosure judgment to be void. However, if the foreclosure judgment was entered first in time, then the Chap 13 stay only stops the foreclosure sale date. The Chap 13 should be time / date stamped by the Bankruptcy Clerk. The problem is that the Final Judgment might not be time stamped. The only evidence of "time" would be the notice of hearing, which is prior to the time of the Chap 13 filing.
Again, however, the Chap 13 may make the judgment irrelevant. If the Chap 13 is designed to save the home, either by repaying deficiency or modifying the mortgage, then the judgment would be vacated upon successful completion of the plan. If the Chap 13 is designed to surrender the home, the imposition of the stay itself will cause the bank to move for relief from stay and re-set the sale date, thus giving you more time in the house.
You should consult with your attorney. If you filed the bankruptcy on your own, then you should see ann experienced foreclosure and bankruptcy attorney to further discuss your question.
This answer is for general informational purposes only and does not establish an attorney-client relationship. Please contact a licensed attorney in your state of residence. For more information on our services, please visit our website at www.yesnerlaw.com.
My colleague has explained the situation pretty clearly. If you have an attorney, then you need to contact them immediately. If you don't have an attorney then you need to hire an experienced attorney immediately, a chapter 13 is a very complex case and you are required to do many things before your 341 hearing. If these steps are not handled appropriately, your case will be dismissed. Any subsequent filing may only have a temporary automatic stay provision (and will require a hearing before the judge to extend said automatic stay).
The asking of and answering general questions does not establish an attorney-client relationship. Please consult with an actual attorney in your local area before deciding on a course of action.
Criminal Defense Attorney
It does not matter when the FJ becomes official, because a suggestion of bankruptcy was filed in the state court case on the same day you filed for bkr, right? I assume you have filed the bkr yourself and do not know the ropes. In many circumstances, the plaintiff in the foreclosure action will actually move to set the judgment aside because bkr was filed.
R. Jason de Groot, Esq., 386-337-8239