Annulment of Stay Retroactively - Affirmed -9th Cir. BAP

The Debtor filed BK at 9:21 a.m. to prevent the foreclosure sale which took place at 10:28 a.m..  At the time of the foreclosure sale, the Borrowers were 42 months (more than 3 years!!) in default and owed over $2 million on the loan.  The Creditor filed a motion to annul the stay retroactively.  The Court affirmed the Bankruptcy Court decision. 

The Court found that the Debtors engaged in unreasonable or inequitable conduct that showed that they were utilizing the bankruptcy process to delay or hinder the creditor. 

The moral of the story is don't wait 42 months to file, don't file about an hour prior to the sale and don't be perceived to be greedy.

In re Mendaros

The 9th Circuit vs. the 10th Circuit - Judicial Estoppel

The 10th Circuit recently came down with a judicial estoppel decision of their own.  When I compared the facts of the 9th Circuit case vs. the 10th Circuit case, I was shocked to see how the 10th Circuit found that judicial estoppel applied.  Considering that I am a Trustee, I found the following quote more shocking:

"[t]he [bankruptcy] Court accepted this finding and [the Queens] received a no asset discharge."  p. 15 of opinion.

For those who don't know, it is the Trustee who files a no asset report not the Court.  In any case, take a read and compare it to my prior blog on the 9th Cir decision.
 





10th Cir. Judicial Estoppel Case (Queen v. TA Operating)


9th Cir. Blog re Judicial Estoppel