7062 and that a dismissal order is effective immediately if there is no stay pending appeal. 1987), the Court determined that an order dismissing a case is not stayed pursuant to F.R.Bankr.P. Her case was subsequently reinstated, but during the time period between the dismissal and the reinstatement, the secured creditor repossessed her automobile. In Rivera the debtor filed a motion to reinstate her case eight days after the dismissal was granted. The circumstances of the Debtor's case are very similar to the circumstances in In re Rivera, 280 B.R.Therefore, the foreclosure sale is not affected by action. order cannot give retroactive effect to the automatic stay and thereby cause the foreclosure sale to be a violation of the automatic stay. There was no violation of the automatic stay because the foreclosure sale took place after dismissal order and before reinstatement order. The foreclosure sale proceeded in accordance with California law. 1987), the bankruptcy court had before it the question of whether a district court's reinstatement order that ostensibly gave retroactive effect to an automatic stay had any effect on a foreclosure sale completed prior to that order and after the bankruptcy court's dismissal order. 1984), this court is unaware of any authority that grants the bankruptcy court power to retroactively While the Bankruptcy Code grants the bankruptcy Whether the bankruptcy court intended its order to apply retroactively is irrelevant if it has no authority to do so. Neither party addressed the threshold question which we find dispositive. Section 362(c)(2) provides that the automatic stay terminates upon the earlier of the time the case is closed, the time the case is dismissed, or the time a discharge is granted or denied. Although a case may remain open after dismissal, the automatic stay of § 362 of the Bankruptcy Code terminates when the case is dismissed.On September 4, 2002, an order was entered by the State Court providing that both the creditor's motion to reset the foreclosure sale, and the Debtor's motion to vacate the foreclosure sale, would be continued until "Bankruptcy Court considers a Motion for Relief from Stay by Plaintiff." Go to Following entry of the order vacating the order dismissing this case, the Debtor filed with the State Court a motion to vacate the foreclosure sale. This will also involve filing a separate motion with the court to ask for an extension of the automatic stay, assuming that you file within a year of the dismissal. You can file again as soon as you qualify for either Chapter 7 or Chapter 13. However, if you have suffered a substantial financial blow and cannot convert to Chapter 7, this may be your only option if you cannot get a hardship discharge. Until and unless you file again, you will lose the protections provided by bankruptcy, such as the automatic stay. ![]() This discharge is rarely granted but may be worth exploring if you have few other options.įailing to respond to a motion to dismiss likely will result in a dismissal without prejudice, which allows a debtor to refile at any point. A hardship discharge is only available if the circumstances causing the hardship were outside the debtor’s control. Justia offers a lawyer directory to simplify researching, comparing, and contacting attorneys who fit your legal needs.ĭebtors who are facing extreme challenges may apply for an early discharge if they cannot modify their plan, and they have paid creditors to the extent that they would have paid them in a liquidation bankruptcy under Chapter 7. It is usually a good idea to hire a bankruptcy lawyer in any Chapter 13 bankruptcy, but especially when defending against a motion to dismiss. ![]() ![]() They might also explain why the situation that disrupted their payments was unforeseen and temporary. If they are arguing that they can solve the problem, the debtor will want to propose a clear plan for addressing it. This might involve providing copies of pay stubs that show deductions from their wages to make payments, for example. If they are arguing that the trustee is wrong, they should carefully document the reasons why the trustee is unjustified in seeking a dismissal. They usually have just 21 days to respond, and it is critical to comply with this deadline.Ī debtor responding to a Chapter 13 motion to dismiss might argue that the trustee is wrong, or they might argue that they can solve the problem. Fortunately, a debtor has an opportunity to object to this motion. This means that their debts would not be discharged because the case would be considered unsuccessful. If a debtor fails to keep up with payments under their repayment plan in a Chapter 13 bankruptcy, the bankruptcy trustee may file a motion to dismiss their case.
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