UNITED STATES BANKRUPTCY COURT NORTHISN DISTRICT OF CALIFORNIA

Transcription

1 Debtor Mark Wilson / Wilson Construction, Glenmere Way Redwood City CA 0 UNITED STATES BANKRUPTCY COURT NORTHISN DISTRICT OF CALIFORNIA In re Mark Wilson / Wilson Construction Debtor. Case No.:. -01-DM MOTION OF DEBTOR FOR ORDER PURSUANT TO BANKRUPTCY RULE 0 (C) EXTENDING TIME FOR DEBTOR TO FILE HIS SCHEDULES AND STATEMENT OF AFFAIRS The Debtor in the above-captioned case (the Debtor ) herby moves this court for entry of an order under Rule 0 (a) and (c) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), extending the deadline by which the Debtor must file his schedules of assets and liabilities (the Schedules ) and Statement of Financial Affairs (the SOFA ) by 0 days. JURISDICTION AND VENUE 1. This court has jurisdiction to consider this Motion under U.S.C. and. This is a core proceeding under U.S.C. (b). Venue of this case and this Motion in this district is proper under U.S.C. 0 and 0. The legal predicates for the relief requested herein are Bankruptcy Rule 0 (a) and (c). BACKGROUND On March, 0, (the Petition Date ), the Debtor filed his voluntary petition in this Court for relief under Chapter of Bankruptcy Code RELIEF REQUESTED 1. By this Motion, the Debtor requests that the Court enter an order extending the deadline to file his Schedules and SOFA from 0/0/ through and including 0/0/, APPLICABLE AUTHORITY Motion Page 1

2 1. Under Bankruptcy Rule 0 (c), the Debtor may obtain a further extension of the Schedules and SOFA deadline for cause shown.. Due to the complex nature of the debts and assets, and the foreclosure of debtor s main asset, debtor has had to spend most of his time scrambling to secure his possessions located in a remote property in lake tahoe.. Debtor submits that cause exists to extend the Schedules deadline by 0 days or more. The requested extension will enhance the accuracy of the Debtor s schedules and SOFA and avoid the necessity of subsequent amendments. NO PRIOR REQUEST No previous request for the relief sought herein has been made to this Court or other courts. CONCLUSION Wherefore, the Debtor respectfully requests that the Court enter an order granting the relief requested in the Motion and further relief as may be just and proper. 0 1 Dated: April 01, 0 Respectfully submitted Mark Wilson Mark Wilson, Debtor in Pro per Motion Page

3 1 0 1 Mark Wilson / Wilson Construction Pro se Glenmere Way Redwood City, CA 0 In re Mark Wilson / Wilson Construction Debtor. UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT To all parties and to their attorneys of record: Case No.:. -01-DM EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING TRUSTEE'S SALE AND IMPOSING SANCTIONS AND PUNITIVE DAMAGES FOR VIOLATION OF AUTOMATIC STAY, AND NOTICES THERETO You, and each of you, will please take notice that debtor Mark Wilson, DBA Wilson Construction, hereby moves the court for an Order Voiding the purported trustee sale and subsequent trustees deed of the property located at 0 Four Ring Rd., Tahoma, California, and imposing sanctions, including costs, attorney and consultant fees and punitive damages, on Bank of America, NA and Reconstruct, for violations of the automatic stay protection afforded under USC. This motion is made and based on the inherent protections granted by the automatic stay under USC, the attached Memorandum Of Points And Authorities in support thereof, and Declarations of Mark Wilson, filed and served here with., and on all the pleadings, files and records herein. EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING AUTOMATIC STAY, AND NOTICES THERETO - 1

4 PRAYER WHEREFORE, PREMISES CONSIDERED, Moving Party prays the Court to set this motion for hearing as soon as is available on the courts calendar. Moving Party respectfully requests the hearing to be this Friday //0 or soon thereafter, so that the movant shall have the requisite time necessary to adhere to both BLR00-1c and BP 00,respectively as well as allowing for this Court to have an opportunity for briefing and to receive the correlating proof of services upon respondents. The movant having have received some new information as to the necessity and urgency for this court to shorten time for the next hearing, at which the aforementioned motion of enforcement of the automatic stay and sanctions are respectfully requested, hereby further moves for such a shortened time, due to the exigent circumstance caused by the respondant s already wanton disregard for this court s authority and jurisdiction by violating the automatic stay granted under USC, evidenced by recording of a deed to a rd party beneficiary. This in combination with recent information of a th party purchaser, and a planned transfer of title further confirms motives by parties to ignore the bankruptcy stay. Thus this court would have the authority and in its capacity to curb, halt or otherwise by virtue of operation of law, mitigate, reduce or reverse damages sustained or otherwise likely to sustain irreparable harm befalling movant; to grant the motion to shorten time, enforce the automatic stay, pay Movant for reasonable expenses incurred in filing this motion, sanctions against the respondent such as the Court sees fit, punitive damages,and such other and further relief to which the Movant may be entitled to, at law, or in equity, or both whether pled or not pled to herein and EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING AUTOMATIC STAY, AND NOTICES THERETO -

5 hereafter. Respectfully Submitted, Signature Mark Wilson Mark Wilson Pro se EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING AUTOMATIC STAY, AND NOTICES THERETO -

6 1 0 1 Memorandum of Points and Authorities 1. Movant wishes to point out the following in support of their attached Motion:. An automatic stay is created upon the filing of the case. U.S.C. (a). A sale in violation of the automatic stay is void ab initio. Schwartz v. United States (In re Schwartz), F.d, 1 (th Cir.). This is true even if the case is later dismissed as a bad faith filing. 0 Washington St. Corp. v. Lusardi, F.d, 0 (th Cir.00), cert. denied, 0 U.S., S.Ct., L.Ed.d (00). A grant deed is not required to evidence a security interest in a property. Evidence of the recording of the lien is sufficient to tie the lien holder, the property, and the bankruptcy together. USC (a)() applies to this situation and creates an automatic stay when the subordinate lienor files for bankruptcy.. The term "legal and equitable interests of the debtor," as that term is used in the Code, includes security interests. The automatic stay provisions of the Code apply to "any act to... enforce against property of the debtor any lien...." The foreclosure of a mortgage falls directly into this situation, and such foreclosure would be prohibited by the automatic stay where the junior lien has declared bankruptcy.. The court may also impose sanctions for stay violations, even if it annuls the stay at a later date. Williams v. Levi (In re Williams), B.R. 1, 0 (th Cir.BAP00). Thus, since the sale at issue occurred while the stay was in effect and occurred without the benefit of relief from stay, the sale is void. EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING AUTOMATIC STAY, AND NOTICES THERETO -

7 Sincerely, Dated this th day of March, 0 Mark Wilson Mark Wilson in pro per EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING AUTOMATIC STAY, AND NOTICES THERETO -

8 Proof Of Service I am over the age of years, employed in the city of Northridge, county of Los Angeles, State of CA and not a party to the action described in the attached documents. I declare under penalty of perjury that on 0/0/0 a true and correct copy of this pleading was served to the opposing party in the manner and at the address described below: FAX 1 Defendant / Respondent RECONTRUST [Trustee for Bank of America] RECONTRUST COMPANY,N.A. 00 Tapo Canyon Rd., CA--01- Simi Valley, CA 0 FAX: 00 Bank of America Bank of America Corporation 0 N. Tryon St. Charlotte, NC FAX: 000 BANKRUPTCY DEPARTMENT 0 1 Your Signature Christopher Morales Christopher Morales EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING AUTOMATIC STAY, AND NOTICES THERETO -

9 Mark Wilson / Wilson Construction Pro se Glenmere Way Redwood City, CA 0 In re Mark Wilson / Wilson Construction UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT Case No.: -01-DM 1 Debtor. DECLARATION OF MARK WILSON IN SUPPORT OF DEBTOR, WILSON CONSTRUCTION, DBA MARK WILSON EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING TRUSTEE'S SALE AND IMPOSING SANCTIONS AND PUNITIVE DAMAGES FOR VIOLATION OF AUTOMATIC STAY I, Mark Wilson, started the filing of the BK case before 1pm, March, 0. It was logged into the system and receipt was generated by the Clerk at 1:0pm March th. I immediately messaged a photo of the receipt to my authorized rd party, Michael Mankarious, of Sovereign Financial who immediately alerted by phone and fax the proper depts. at Recontrust that a BK filing had been made. I called the Depts. as well from the BK Recorders office and provided them with the BK number. Both Mike and I were informed by both Recontrust and Bank of America at that moment, and later in the day that sale was in rescission because of the bankruptcy filing.. We both checked back on Friday, March 0, with both departments and received the same information again, and that they had the BK filing. Mary Acota of the DECLARATION OF MARK WILSON IN SUPPORT OF DEBTOR, WILSON CONSTRUCTION, DBA MARK WILSON EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING AUTOMATIC STAY - 1

10 1 0 1 Bank of America BK Dept. stated to Mr. Mankarious that B of A only received the BK information from Recontrust, Friday, March, 0.. On Monday, the th of March, I called Recontrust about the recission of sale and they said, No Bankruptcy and valid rd Party Sale.. Incensed, both Mr. Mankarious and I called Ms. Acota in the Bank of America BK Dept. to inform her what Recontrust was saying, and filed a complaint. Mr. Mankarious resent the BK information to B of A and Ms. Acota that day.. Both Mr. Mankarious and myself called back B of A s BK dept on the th and th of March, and were informed by the BK Dept. that the file was under review and they would get back to us shortly. 1. On the th of March Ms. Alcota called Mr. Mankarious back and informed him that the BK filing and rescission was still under review and they would get back to us. Mr. Mankarious also asked and requested to Ms. Alcota that Recontrust not transfer any deed of title to the new third party owner until this issue resolved.. We did not hear from Bank of America for several days, and on the 0th I called Bank of America s BK Dept. to inquire about the status of the rescission and was informed that Bank of America could not find any record of any bankruptcy filing pertaining to the loan number and TS: number. DECLARATION OF MARK WILSON IN SUPPORT OF DEBTOR, WILSON CONSTRUCTION, DBA MARK WILSON EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING AUTOMATIC STAY -

11 I declare under penalty of perjury that the foregoing is true and correct. Executed this day of March, 0, at San Francisco, California. 1 Mark Wilson Mark Wilson 0 1 DECLARATION OF MARK WILSON IN SUPPORT OF DEBTOR, WILSON CONSTRUCTION, DBA MARK WILSON EX-PARTE MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING AUTOMATIC STAY -

12 1 0 1 Mark Wilson / Wilson Construction Pro se Glenmere Way Redwood City, CA 0 In re Mark Wilson / Wilson Construction Debtor. UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT Case No.:. -01-DM [PROPOSED] ORDER ON EX-PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING TRUSTEE'S SALE AND IMPOSING SANCTIONS AND PUNITIVE DAMAGES FOR VIOLATION OF AUTOMATIC STAY DATE: TIME: DEPT: JUDGE: To all parties and to their attorneys of record: DATE ACTION FILED: The application for order shortening time was brought before this court for consideration. The court, having reviewed the application, and memorandum of Points and Authorities and opposing briefs, if any, having determined that good cause exists for granting application, now therefore orders as follows: IT IS ORDERED THAT: plaintiff's ex parte application is granted. IT IS FURTHER ORDERED THAT: 1. The Time For The Hearing On Plaintiff's Motion To Void The Trustee Sale And Imposing Sanctions And Punitive Damages For Violation Of Automatic Stay IS SCHEDULED FOR: AT IN [PROPOSED] ORDER ON EX-PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING TRUSTEE'S SALE AND IMPOSING SANCTIONS AND PUNITIVE DAMAGES FOR VIOLATION OF AUTOMATIC STAY - 1

13 DATED: THE HONORABLE [PROPOSED] ORDER ON EX-PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME FOR HEARING ON MOTION FOR ORDER VOIDING TRUSTEE'S SALE AND IMPOSING SANCTIONS AND PUNITIVE DAMAGES FOR VIOLATION OF AUTOMATIC STAY -

14 1 0 1 Mark Wilson / Wilson Construction Pro se Glenmere Way Redwood City, CA 0 In re Mark Wilson / Wilson Construction Debtor. UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT Case No.:. -01-DM [PROPOSED] ORDER VOIDING TRUSTEE'S SALE AND IMPOSING SANCTIONS AND PUNITIVE DAMAGES FOR VIOLATION OF AUTOMATIC STAY DATE: TIME: DEPT: JUDGE: To all parties and to their attorneys of record: DATE ACTION FILED: This case came on for hearing on April th, 0, in re DEBTOR, WILSON CONSTRUCTION / MARK WILSON s motion for VOIDING TRUSTEE SALE AND IMPOSING SANCTIONS AND PUNITIVE DAMAGES FOR VIOLATION OF AUTOMATIC STAY. For the reasons stated orally and recorded in open court Accordingly, the court grants the motion as follows: 1. The court hereby orders the trustee sale of 0 Four Ring Road, Tahoma Ca (TS:0-00) void.. In the event RECONTRUST and BANK of AMERICA do not comply with the courts order to void the sale within days,the court will hold RECONTRUST and BANK of AMERICA in contempt of court and assess further sanctions. [PROPOSED] ORDER VOIDING TRUSTEE'S SALE AND IMPOSING SANCTIONS AND PUNITIVE DAMAGES FOR VIOLATION OF AUTOMATIC STAY - 1

15 DONE and ORDERED at San Francisco, California, on _ April, 0. DATED: 1 THE HONORABLE 0 1 [PROPOSED] ORDER VOIDING TRUSTEE'S SALE AND IMPOSING SANCTIONS AND PUNITIVE DAMAGES FOR VIOLATION OF AUTOMATIC STAY -