Tag Archive: automatic stay


In a staggering amount of cases that come across my desk, the bank issues a Notice of Trustee’s Sale that tells the homeowner the exact date and time their house is to be sold at auction – only to then postpone the sale.  Whether the reason for the postponement is a bankruptcy that was filed, a loan modification that is furiously trying to be worked out, or a short sale offer that peaked the bank’s interest, the result is inevitably the same:  Confusion, stress and worry on the part of the homeowner plagued with the most pressing questions of them all “When do I have to be out of my house?”

Of course, the best – least stressing solution – for the homeowner and his or her family is usually to find a new home well before the sale date that was originally scheduled.  Then you don’t have to worry about what happens if the sale doesn’t take place, and how long do I have to get out.  In reality, this doesn’t always work out that way, and in some cases, where the bank just simply is dragging its feet, it is almost better for the homeowner to stay in their home – rent free – while they can, and save up the often much needed funds for the move.

The unfortunate fact is, once the Notice of Trustee’s Sale has been posted, and assuming it wasn’t cancelled (and typically the banks do NOT cancel their notice of sale in a scenario as this one), the bank does NOT have to give you any additional notice of the sale.  This is true even if the original sale date has passed and the homeowner is in a kind of limbo.  The bank has the right to foreclose on your house – read: sell it at auction – pretty much whenever they please, after the original notice period has passed.

The implications of this are plentiful.  The first, and most important one is to remember that the ‘foreclosure department’ of your bank probably doesn’t even know the ‘short sale/loan modification department’ exists, nevermind ever communicates with them.  The result of this red tape nightmare is, of course:  You may me plugging along and looking hopeful for your loan modification to go through, and next thing you know you get served with an eviction notice because your house was sold to an investor last week. 

In a bankruptcy scenario, once the automatic stay has been lifted, and assuming the bank has issued their Notice of Trustee’s Sale prior to filing, the bank can move forward with their sale at their leisure.  The most frustrating part for me, as a bankruptcy attorney, is that there is no way for me to give my clients peace of mind by giving them any kind of definite answer with respect to the sale date.  All I can do is to advise them to keep calling the bank’s attorneys to find out what date the sale has been set for. 

It is hard, when there are no guarantees and no definite answers, but the best thing you as a homeowner can do is to keep on top of all of the information.  Don’t rely on what your realtor tells you (and I say this with the greatest deference to the realtors out there – the ones I work with are wonderful professionals who know what they are doing, but the bottom line remains – they do not control the bank’s foreclosure department), don’t even rely on what the bank is telling you, unless it is the bank’s foreclosure department, and certainly don’t believe what your neighbor/coworker/acquaintance/hairdresser tells you.  Every case is unique and what happened in your neighbors case will most likely not happen the same way in yours.  Probably not even remotely close to it.

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The short answer to this question is, absolutely not!  When your bankruptcy petition is filed, the automatic stay goes into effect immediately.  The automatic stay is the law that states that once someone has filed for bankruptcy protection, a creditor cannot do anything to continue trying to collect from this person.  This includes filing a lawsuit, or, if the debtor was sued prior to the lawsuit, continue the law suit. 

Credit card companies and other lenders don’t really have the resources to sue everyone that is falling behind on their payments.  But, after enough time goes by, they will bring an action against you for breach of contract.  Usually, there is no good defense to a law suit such as this:  You got a loan, you stopped repaying it, the law unfortunately does not consider the hardship that caused you to default, or the good intentions you may have for future repayment…. 

Filing for bankruptcy protection can help you stop the law suit, and prevent wage garnishment.  Even if the law suit was completed prior to filing your bankruptcy, and your wages are already being garnished, the bankruptcy laws put an end to the garnishment.  They most important aspect here is to list the plaintiff as well as their attorneys on your petition, to ensure they are notified about your bankruptcy filing.

Timing is often key to prevent garnishment altogether.  If you have gotten sued (you will have been served with a Summons and Complaint) you should speak to an attorney as soon as possible to determine the best course of action.  In this conversation with the attorney, be sure to also discuss any previous (old) law suits that may have already gone to judgment.  If such a previous lawsuit resulted in a lien on your property, your attorney, through the bankruptcy process, can likely do something about this lien – but only if she knows about it.

Remember, knowledge is power, and sticking your head in the sand after you have been served is never the best course of action.  A free consultation with a bankruptcy attorney such as myself will enable you to better understand your options.  Visit our website at www.marcowimmerlaw.com to find out more about us and our philosophy.