Monday, February 9, 2009

Van Ness 2009 WL 210712 (Bankr.E.D.Cal.)

Creditor seeking injunctive and extraordinary "in rem" relief had to file adversary complaint, not motion for stay relief.

Where a creditor, whose efforts to obtain possession of the Chapter 7 debtor's residence through unlawful detainer proceedings attendant to foreclosure were stayed upon the debtor's bankruptcy filing, sought injunctive and extraordinary "in rem" relief, including a ban on filing future bankruptcy petitions by other persons to whom the subject property may be transferred, a ban on automatic stays in future cases, and an order providing for the sheriff to evict the debtor and any other occupants from the subject property notwithstanding a future bankruptcy case, the relief requested by the creditor was only available, if at all, through an adversary proceeding, a California bankruptcy court has ruled. The requested relief could not be obtained by way of a motion for relief from stay. The relief sought by the creditor was not grounded on any specific provisions of the Bankruptcy Code, but was based upon the court's general equity jurisdiction. Furthermore, to the extent the relief affected third parties, due process concerns virtually compelled the more formal process of an adversary proceeding.

Posted by Kansas City Missouri Bankruptcy Attorney, Rachel Lynn Foley.

1 comments:

Unknown said...

Great post. Thanks for introducing this to all of us. I think filing bankruptcy by do it yourself is best idea.