Sunday, November 21, 2010

Use bankruptcy rules to preserve automatic stay where bank not cooperating

Rule 4004(c)(2) remains a tool in a debtor's toolbox to preserve the automatic stay during mortgage modification negotiations and possibly other events necessitating the continuance of a stay beyond the regular statutory limits (generally 60 days).  In In re Roderick, Case No. 09-22866-C-7 (Bankr. E.D. Cal. 2010), the federal bankruptcy court held that Bankruptcy Rule 4004(c)(2) is "eligible to be employed during the pendency of loan modification negotiations."  The court noted the inconsistency in the alleged creditor's position in its urgent stay relief motion filed at the outset of the case and the same creditor's "lackadaisical approach to considering whether to agree to modify the mortgage" and noted that Rule 4004(c)(2) could be sued to address that inconsistency.

Those interested in the highly technical opinion of In re Roderick can check it out here:

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