A filing just days before the sale will stop the sale, so long as the Clerk and the plaintiff firm have received actual notice of the case filing prior to the sale. However, filing a bankruptcy you do not intend to proceed with is considered bad faith and bankruptcy abuse by the bankruptcy court.
A bankruptcy case, done right, can do enormous good for the filer. So, instead of planning a bad faith bankruptcy that will likely result in prejudice and sanctions to you, why not see a bankruptcy attorney to learn how a bankruptcy might actually HELP you, and then plan to file a proper case prior to the sale ?
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
Yes it will stay the sale. Technically, the automatic stay goes into place immediately upon filing the case. Time and notice constraints, however, create practical problems with having the sale canceled if you wait until the last minute. If a sale goes through after your bankruptcy case is filed, it is a violation of the stay and can be undone. Usually the creditor will voluntarily undo the sale in this scenario. If not, the Bankruptcy Court can compel them to do so. I recommend that you consult with an experienced bankruptcy lawyer as far in advance of the sale date as possible to explore your options.
The filing will stop the sale. The foreclosure clerk at the state court needs to be notified. Note if for some reason the sale is not stopped and a third party is the successful bidder at the auction, the stay does not apply to the third party.
The questions and answers posted on AVVO are for general information and should not be treated as legal advice or establishing an attorney-client relationship.
Orlando Bankruptcy Attorney. An emergency bankruptcy is still a valid bankruptcy. From the moment the case is filed, the automatic stay prevents any creditors who have notice from taking any collection actions including a foreclosure sale. I recently had a case where the homeowner came to me at the very last minute. We were able to stop the foreclosure with 15 minutes to spare! That was way too exciting. All of the other parts of the bankruptcy petition have to be filed within 15 days but there are parts that have to be filed within two days.
Eric L. Bolves, Esq.
2110 E. Robinson St., Orlando, FL 32803
If you are in my practice area, call me for a free phone consultation. 407-894-1002. Answering a question on this website does not create an attorney-client relationship. I'm not officially your lawyer until we have had a one on one conversation and you have signed a retainer agreement. I practice bankruptcy in Orlando only. I practice Social Security Disability law throughout the State of Florida. Offices 2110 E. Robinson St. Orlando, FL 32803.