I will be filing on September 5th...

[aa06a47]

A milestone....your 1000th post, aa! Wow! You've helped so many people with many of those 1000 posts....thank you for your generous and helpful spirit!

Wow, 1000 post, and I didn't know anybody was counting !! LOL!!! Thanks for the kind words.

[lrprn]

Face it, the pre-bk counseling is a joke in most cases. While I feel I might have learned something from it in a way, it didn't change the need for me to file bk. Congress needs to eliminate that stupid certificate, IMO

A milestone....your 1000th post, aa! Wow! You've helped so many people with many of those 1000 posts....thank you for your generous and helpful spirit!

And I agree with you 100% - the whole pre-filing certificate is a joke. We have the stupid requirement as a payoff to big bank and credit card campaign contributions - the bill's writers included it as a thinly veiled way to slow down filing by increasing the cost and make last-minute filing to forstall foreclosures more challenging. Several congressional groups tried to get it out, but the majority leaders rammed it through.

Luckily the newest suggested revisions to the bk forms include an extensive new section on the required pre-filing education that appears to allow judges a 15-day leeway about the certificate being in hand - see http://www.cob.uscourts.gov/misc/revisedforms8-06.pdf . Nothing official yet....not until October anyway. Fingers are crossed that some small piece of sanity will return to the bk process and it won't be so punitive to those who often need bk protection the most...the very poor.

[HRx]

We cannot include your sig at this point. Therefore, it's understandable if you wish to not continue posting here. You can private message me if you wish to further discuss our policy.

Regards,

~HRx

I notice that you cut my sig. Unfortunately, I cannot (and will not) post without them, as they meet with the requirements of the new law and my malpractice carrier. Please let me know if they will be included in future posts.

Brett

[Interlaw]

I know in our Court here, Minny, the Court is abiding by the "No Emergency Petitions to prevent Foreclosure" under the New Law.

Our paralegal was telling me about having to rush to put a petition together and file for a couple to save their home from the Sheriff's sale. The paralegal said they had to file the petition no later than a week prior to the scheduled sale. If the Court has less time than that, you're SOL about your house here.

The paralegal also commented that before the Law changed, they could file a petition the day before or the morning of the Sale and stop a Foreclosure. Not now.

Such a restriction would be in violation of the law and unenforceable. You can file immediately before a scheduled foreclosure sale to stop it. I filed a case literally 3 minutes before a sale under the new law, without problem.

Maryland, DC and Federal bars
Member, National Association of Consumer Bankruptcy Attorneys

************************************************** ***************
The Small Print: This response is for discussion purposes only.
It isn't meant to be legal advice and you shouldn't treat it as
such. If you want legal advice, speak with a local lawyer
familiar with your state's laws who can review *all* of the
facts and the law applicable to your situation.
************************************************** ***************

[Interlaw]

You are misreading the section.

The 5-day period *only* applies where there is a waiver of the pre-filing credit counseling requirement. Where the credit counseling is obtained (and I had one client complete the counseling and file a "thin" petition within an 90 minutes of first contacting me) you can file immediately.

Maryland, DC and Federal bars
Member, National Association of Consumer Bankruptcy Attorneys

Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong. —Theodore Roosevelt

************************************************** ***************
The Small Print: This response is for discussion purposes only.
It isn't meant to be legal advice and you shouldn't treat it as
such. If you want legal advice, speak with a local lawyer
familiar with your state's laws who can review *all* of the
facts and the law applicable to your situation.
************************************************** ***************

[Interlaw]

OK,.......... I guess it is local custom. The Court "wants" foreclosure filings in advance but there's nothing illegal to prevent someone from filing at the last minute.

Title 11, Section 109, h. Here's where the 5 day thing comes in:

http://www.doney.net/bkcode/11usc0109.htmhttp://www.neb.uscourts.gov/pdf/0680...foreclosure%22

I guess our Court here is erring on the side of caution by asking Practitioners to file petitions to stop a Foreclosure in advance of the scheduled Sale day.

You are misreading the section.

The 5-day period *only* applies where there is a waiver of the pre-filing credit counseling requirement. Where the credit counseling is obtained (and I had one client complete the counseling and file a "thin" petition within an 90 minutes of first contacting me) you can file immediately.

[Interlaw]

I notice that you cut my sig. Unfortunately, I cannot (and will not) post without them, as they meet with the requirements of the new law and my malpractice carrier. Please let me know if they will be included in future posts.

Brett

[aa06a47]

Yes, that does clarify things a bit. What the court is saying is that if all your ducks are in a row, then you can file, if not, using a forclosure as the emergency to file without the pre-bk counseling is a no-no. We all know in most states, forclosures don't just happen, it is a long and drawn out process. I can see why the courts wouldn't use it as an excuse to not file.

Face it, the pre-bk counseling is a joke in most cases. While I feel I might have learned something from it in a way, it didn't change the need for me to file bk. Congress needs to eliminate that stupid certificate, IMO

[SinkingFast]

OK,.......... I guess it is local custom. The Court "wants" foreclosure filings in advance but there's nothing illegal to prevent someone from filing at the last minute.

Title 11, Section 109, h. Here's where the 5 day thing comes in:

http://www.doney.net/bkcode/11usc0109.htmhttp://www.neb.uscourts.gov/pdf/0680...foreclosure%22

I guess our Court here is erring on the side of caution by asking Practitioners to file petitions to stop a Foreclosure in advance of the scheduled Sale day.

[aa06a47]

I know in our Court here, Minny, the Court is abiding by the "No Emergency Petitions to prevent Foreclosure" under the New Law.

Our paralegal was telling me about having to rush to put a petition together and file for a couple to save their home from the Sheriff's sale. The paralegal said they had to file the petition no later than a week prior to the scheduled sale. If the Court has less time than that, you're SOL about your house here.

The paralegal also commented that before the Law changed, they could file a petition the day before or the morning of the Sale and stop a Foreclosure. Not now.

SF, where is this no emergency petitions to prevent foreclosure under the new law at? There are some obvious pre-bk steps (credit counseling) that will pretty much keep someone from deciding at 9:00am to file and be able to file at 10:00am.

I believe the courts are weakening the bk law and making the automatic stay impotent if they truley make rules like that. I mean, the general rule is that the second that the papers are filed, there is a blanket around you protecting you from all creditors...and I do mean the very second you file. I just think that is wrong of the courts in your district saying, well, all creditors must stop except those about to foreclose on a house.

[aa06a47]

I think as long as the bk is filed and sufficient notice can be given to those who are doing the auction, then it is perfectly legal. The bad part about waiting until the last minute is what if something happens (court document filing system is down, line is too long at the court house..etc.) I actually read where someone went to the court house to file to save the auction of his house, and unfortunatly, all the papers were stamped about 1 hour after the auction had already taken place. So, he lost his house.

It is definatly not wise to wait till the last minute, but I have not read in the code that it is illegal.

[SinkingFast]

Also check with an attorney in your state as to the procedure and policies governing this type of action taken.... it may be different in your state!!!

Minny

I know in our Court here, Minny, the Court is abiding by the "No Emergency Petitions to prevent Foreclosure" under the New Law.

Our paralegal was telling me about having to rush to put a petition together and file for a couple to save their home from the Sheriff's sale. The paralegal said they had to file the petition no later than a week prior to the scheduled sale. If the Court has less time than that, you're SOL about your house here.

The paralegal also commented that before the Law changed, they could file a petition the day before or the morning of the Sale and stop a Foreclosure. Not now.

[Minnymouth]

It is my understanding of the new laws (and these will vary from state to state due to objections being filed and pending) that:

1. In order to stop foreclosure, the petitioner must have filed bankruptcy, even the day before foreclosure, and MUST have a completed credit counseling certificate on file in order to STOP the foreclosure on that foreclosure day.... (this is to insure that the filer has been counseled in the area of foreclosures).

Since this is a wide open topic for discussion, remember the laws are different from state to state regarding this issue.

Also check with an attorney in your state as to the procedure and policies governing this type of action taken.... it may be different in your state!!!

Minny

[SinkingFast]

Please feel free to post any helpful information you may have, Mr. Weiss.

Advertising is not allowed unless you make prior arrangements with the Forum Adminstrator.

Reference the Forum Rules:

http://www.bankruptcyforum.com/showthread.php?t=5467

We definitely appreciate the perspective of a BK attny.

I have read on numerous occassions that one of the drawbacks to the New Law was not allowing for "Last Minute" filings to stop a Foreclosure in process.

Should you continue to post, I'm sure Forum Members and Lurkers will contact you via PM with more personalized types of questions.

And, of course, you may contact the Forum Admistrator by clicking on the Main Page Link for Forum Leaders, located toward the bottom of the Sections Index Page.

[Interlaw]

This is incorrect There is no requirement that you file 5 days before a foreclosure. I have filed many cases the same day as the scheduled foreclosure without difficulty. (Note that in the District of Columbia, due to a recent decision by Judge Teel, you must obtain your credit counseling certificate no later than the calendar day before you file. This [IMO wrong] decision is currently on appeal.)

Brett Weiss

Maryland, DC and Federal bars
Member, National Association of Consumer Bankruptcy Attorneys