Lift Stay Motion Practice: Very Light Burden of Proof on Fake Foreclosers

On a Scale of 1-12, 11-12 would be beyond a reasonable doubt (criminal cases),

8-9 Clear and convincing evidence (fraud),

6-8, preponderance — i.e., more likely than not (normal civil cases),

3-4 probable cause (criminal — reasonable basis to believe that a crime has been committed and there is a reasonable basis to conclude that the prosecution could prevail based upon the facts alleged at arraignment),

and then 1-2 colorable right to lift stay.

See what I mean? The logic behind it is that all the court is doing is saying that the trustee has abandoned the claim, this is a matter to be decided in the state court and not here, and there seems to be some genuine controversy, but the basics for supporting foreclosure appear to be potentially present.

In reality the lift stay order is treated as res judicata and collateral estoppel in the state court and the order often recites, incorrectly, a finding of fact that US Bank is the holder of the note despite the absence of an adversarial evidential hearing.

If such an order is entered, the appropriate move is a LATERAL appeal to the district court judge, not BAP and not 9th circuit.

The issue is whether the court in bankruptcy court had the right to add any language other than the granting of the motion and whether, given the circumstances of the way it is viewed in state court proceedings, the standard lift stay order should contain a caveat to prevent allegations of res judicata. The district court judges look down on the bankruptcy judges who were, until fairly recently, not judges, but rather referees. Like general masters in divorce proceedings. They are seen as clerical by the civil district court judge and there is a 50% rate of reversals on those appeals whereas you only have 15% in BAP or 9th Circuit.

19 Responses

  1. R robbed by bankrupt banks & you’re hung to drip-dry (or hanged to die) … Because of that, bankruptcy is probably the most corrupt legal vehicle against the 99.9% in the U.S.
    Worse yet bankruptcy court system & procedures are so corrupt & designed for benefit of the “1% of the 1%” through banks that hardly no lawyer dares file objections to these motions so they let banks’ motions get automatically granted, else the lawyer may get disbarred for bringing in truths & exposing banks’ fraud. If pro se makes objections court treats them as if nothing filed and grants banks’ motions anyway. Vote Rodney Dale Class for president, 2012 to try fix the corrupt system. If he gets elected he’ll probably be assassinated by the “1% of the 1%” and you’ll have even more proof!

  2. Yup—nothing’s changed—gotten worse—HAMP was only to “foam the runway” for millions of foreclosures…putting aside the layer upon layer of fraud—if they had just followed through with the mods (of the false default debt) the way they promised, where would we be?
    The insane horror of being promised something—doing whatever they asked (miss payments, paperwork a million times, etc.)—and then having “the rug pulled out from under them”—ON PURPOSE—(Barofsky’s words) is one of the saddest things about this whole debacle…to literally TRAP people—and then kick them over the cliff. These people need their toenails pulled out—slowly.

  3. Unfortunately, that was last February and… nothing’s changed. Plus… Geithner is still there, right? And we never had any moratorium anyway.

    That’s ok. Jamie boy got his $23 millions for what Fannie called “a performance that is not necessarily good”!

  4. “Who have you WHACKED for failing?”

    NOBODY, SENATOR. NOBODY! Just the homeowners.

    Thanks for that, Carie.

  5. Now that I think about it some more, a successful objection to a proof of claim may well preclude fighting about a mtn for relief from stay.

  6. What Neil said is true. Orders granting motions for relief from stay 1) include findings of fact that aren’t findings of fact (and need to be challenged – FRBP 7052? – then and there but only if strategy warrants, and 2) although relief from stay is treated as res judicata by other courts (and certainly that is the bankster’s argument), it isn’t.
    Here’s one case which says so:

    Even though bk courts must look to state law in determining property rights, bk courts may do so. As a strategic matter, one might want to stay in bk court and to do that, you have to file an objection to the proof of claim as well as an objection to the mtn for relief from stay.
    A proof of claim not filed in accordance with the rules for poc’s is not entitled to prima facie status / validity. Try 3001 and others. If a poc doesn’t support the claim, then it’s not filed in accordance with the rules, for instance. I think one also has to cite bk rules which say the
    matter is a core issue for adjudication in the bk case.
    Once an objection has been filed to a poc, the bankster cannot amend it at will pursuant to Rule 7015, think it is. What is amendment? Is what they’re calling amendment 1) actually a different claim and 2) is it past the bar date? If a bankster tries to introduce
    new ‘evidence’ (new endorsement, new docs, aff, declaration), is this a bad attempt to amend the poc without doing so on the record (in / at their poc)? That’s my impression. It’s the poc itself which must be
    amended, and after an objection, this takes leave of court (by motion)or the homeowner’s agreement (by stipulation). What I’m saying is that I think banksters try to amend their pocs without amending their pocs and they need to be stopped.
    The homeowner in bk court finds himself in a mess because many bk
    attorneys are cookie-cutters and don’t get involved, nor are qualified to get involved, in these contests. So if you’ve only got funds for
    one attorney, and not two (other court), you’re sort of “it”. Some bk attorneys have started working with other attorneys in a bk case, but it’s rare and might be expensive. UNless the bk attorney is only paid for the bk itself. Another problem is that if the bk attorney doesn’t do “battle”, the homeowner can’t file anything because he has an attorney of record. I don’t know, but it might be possible for the bk
    attorney to mark / make his entry in a bk case as limited representation, which might free the homeowner to act outside
    the bare bk petition and matters uncontested.
    Bk trustees have an obligation to the bk estate and that is to see
    that only proper parties benefit from the estate. If there is no legitimate claimant on your home, then the home is the property of the bk estate, subject to any claimed exemptions. This might depend on the chapter of bk one filed. Seems like it would certainly be true in a
    7. Don’t remember.
    One might ask the bk trustee to join the objection or AP and make a deal with him, but most trustees don’t want to do it, thinking there is no value to the estate because someone somewhere has a claim, and the bk trustee, like many if not most bk attorneys, are not about battles. But if one is going to fight the fight and the bk trustee doesn’t want to join, one should get him to abandon the claim about your house, lest he try to snag it later if you’re successful.
    Lay opinions – ask a lawyer

  7. K.S.: looks like bankruptcy judge perjured herself outright!!! Wow!

  8. @usedkarguy

    Not only “sold out”—Congress has ORDERED the foreclosures to go through no matter what—from the mouth of idiot Geithner himself:

  9. are “the 99.9% suspicious insurgents” droned by the “Government Butler” (through such courts) to serve the “1% of the 1%” Banksters & their associates:

  10. I have a good Bk judge in the 9th who made an order that would have led to a color of claim finding and relief from stay. His on the record commentary for his decision made it clear that his ruling was not to be taken that Movant has enforcement rights in state court.

    Bk judges are appointed? I thought ALL judges are appointed all the way up to Supreme Court.

    While I’m here, and off the topic, look who Jamie Boy hired:

  11. never had a say in the government to begin with. The fact that you thought you did was a successful ongoing scam:

  12. What a day!
    Brian, nothing like getting bitch-slapped by the judge for computer issues while bankster attorneys file garbage without fear of retribution for their crimes of fraud and racketeering. That’s what it has come down to everybody: fraud, forgery, and racketeering. It’s not the rule of law, it’s the rule of “lies”. Take that from an ex-car-salesman.
    @enraged: these are little victories that essentially are too few and far between to be meaningful anymore. Certainly not the norm or any indication of the “tide turning”. Not with what I heard today in my case. What we mistook as “fairness” turned out to be “camouflage” . Judges will avoid ruling for a homeowner at all cost.
    There was a victory the other day (in WI) with the recusal of a county judge whose daughter is a lawyer for the mill. He is not going quietly, but he is gone for now. Anecdotal at best.
    @guest: you an attorney?
    Can we have a show of hands here for how many think the Government has sold out?

  13. Dear Neil and readers:
    I would like to know how you would gauge Bankruptcy Judge Erithe E. Smith, of Santa Ana, Ca. who on a similar motion stated that she believed a foreclosure was invalid but would grant Wachovia (drug dealers) relief from stay anyway. Worse yet, she has since 2009 denied having said that, despite of my posting her voice-recording and its transcript on my blog’s litigation page. How would you all want to be in her court? (See page 10)

  14. @Guest,

    I stand corrected… Where did i get that he was a BK judge…? Anyway, that was a good ruling.

  15. engage: Judge Christopher Boyko was an Ohio District Court judge not a Bankruptcy referee. But, there have been honest BK judges/referees who were dumped just because of their honesty in rulings, such as bankruptcy Judges Sargis & Bufford of California.

  16. its a case of getting worked over first just keep on keeping on

  17. davies910 is in California—the worst of the worst…

  18. @Davies910,

    This is the kind of sweeping statements that can hurt homeowners if repeated too often and to too many judges.

    Not ALL BK judges are weak. In fact, as early as 2007 and 2008, Judges Boyko and O’Malley declared the liens unperfected and allowed discharge of mortgages in 46 cases. The people stayed in the house. It didn’t take very long for NY to follow suit and those cases exist everywhere now.

  19. I agree. The BK court is really biased. BAP is worse. Only the real judges in the District Court. BK judges are legislative courts, and not constitutional courts. They are weak and ill prepared judges for the real world. Only POC and BK filings. The BK judges are attorneys who are appointed. The were BK attorneys.

    They are a joke. Not even close to a constitutional court judge.

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