Tag: motion for relief from stay

Bankr. E.D.N.C.: In re Davis – Unclean Hands with Loan Modification and Motion for Relief from Stay

Summary:

The Debtors were delinquent on their Chapter 13 plan payments, which included disbursements to Green Tree for a mobile home and land. Accordingly, on February 5, 2014, Green Treee filed a Motion for Relief from Stay.

On February 1, 2014, however, Green Tree sent to the Debtors directly a letter offering to provide assistance with delinquent payments. (Green Tree also sent an identical 2nd letter on the same day.) A 3rd letter was sent by Green Tree on February 20, 2014, stating that the Debtors’ loan modification application was incomplete and the Debtors had 30 days to provide complete information.… Read More

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Bankr. M.D.N.C.: In re Styers- Motion to Dismiss as Alternative to Motion for Relief from Stay

Summary:

Chapter 13 Debtors had fallen behind on payment under their confirmed plan, wherein the mortgage held be Wells Fargo was paid directly by the Debtors. Instead of following the more customary path of seeking relief from the automatic stay, Wells Fargo instead sought dismissal of the Chapter 13 case. The Motion to Dismiss was resolved by bringing the payments “inside” the Chapter 13 plan, but the parties could not agree on the allowance of attorney’s fees in the amount of $350.00. Further, the Bankruptcy Administrator argued that Wells Fargo should instead have filed a Motion for Relief, with its required filing fee of $176.00.… Read More

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Bankr. E.D.N.C.: In re Carroll- Evidence of Default necessary for Motion for Relief From Stay

Summary: Vericrest sought relief from the automatic stay and the Chapter 7 Trustee objected.  In the present case, the note contains two allonges purporting to transfer the Note by indorsement.  The first purports to transfer the Note from Flagstar Bank, F.S.B.  To LSF7 Bermuda NPL V Trust.  The second allonge is blank indorsement from Bermuda Trust.

To prevail on a Motion for Relief from Stay where there is no issue as to the sufficiency of equity to adequately protect it interests, the moving party must  show “[t]he [d]ebtor owes a debt to it, that it possesses a valid security interest securing the debt, and that the collateral securing the debt is declining in value while the [d]ebtor has failed to provide [the creditor] with adequate protection of its interest” to establish a prima facie case it is entitled to relief for lack of adequate protection. Read More

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Bankr. E.D.N.C.: In re Sessoms- Lack of Evidence of Default and 9011 Sanctions

Summary:

Ocwen filed a Motion for Relief from Stay.  At the hearing, the Debtor testified she was under a loan modification with Ocwen and provided copies of the loan modification agreement and bank account statements showing that payments under the loan modification had been made.  Ocwen provided absolutely no evidence to support its position that the Debtor was in default.

In addition to denying the Motion for Relief from Stay, sua sponte, the Bankruptcy Court has ordered Ocwen to show cause why it should not be sanctioned pursuant to Rule 9011(c)(1)(B) for filing a baseless motion.

Commentary:

Because this order to show cause is from the Court, and not on the motion of the Debtor, this motion cannot just be settled by Ocwen. … Read More

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