Login with your favorite social network:

[Calfhierde]

Hi lee, I have filed chapter 7 bankruptcy(i live in michigan) and my discharge date will be June 01, 2010. I am trying to file an emergency declaratory injunction in bankruptcy court and my lawyer refuses to file it for me. The injunction is against my mortgage company for fraud. the mortgage company is listed as one of my creditors in my chapter 7 filing.

i feel i should file this in bankruptcy court. what do you think? how do i get my trustee and lawyer to stay the discharge date until my pleading is heard in the court?

ANSWER: The only thing that will keep the stay in place is a delay in entry of the discharge.  If the mortgage co has committed fraud(and that's not all that unusual these days) what you need to file is an adversary complaint in bankruptcy court against the mortgage co for fraud and as the debtor you won't have to pay a filing fee;  and with that you should file an emergency motion to delay entry of discharge -- there is no such thing as a "declaratory injunction".  Good luck!

Lee Horner

Goldstein, Horner & Horner, Attorneys

Tucson, AZ

www.freshstartAZ.info

---------- FOLLOW-UP ----------

Thank you Lee. Will it cost me extra money that I pay the lawyer to have him file adversary for me? If the answer is yes, If then the discharge date does go through will the lower courts still hear my case and be able to help me or is it that once discharge goes through there is nothing I can do?

[Auriville]

Without knowing the particulars of your fraud case I can't say, but since you're in the bankruptcy arena now, and since trials there are typically much faster to get than in state court, I'd opt for a bankruptcy adversary case filing before the discharge, and in that case make a motion to stay entry of the discharge until the adversary is concluded.  I would guess your attorneys would want more money to do that, but you can file the adversary & motion in the adversary case yourself, but I don't advise it.  If you will e-mail me your address(use all experts question in the subject line) I will email you back a horrible lender abuse case you might find interesting; automatic stay violation; extortion; you name it and the lender got hammered in bankruptcy court.  My email address is [email protected]  and this case is public record from the Eastern District of California bankruptcy court.  It is a fascinating read, 54 pages or so but might help you.

Lee