Is an Attorney Not Licensed in the State Allowed to Argue in Bankruptcy Court?
Admission to a state bar does not entitle the admitted attorney to appear and plead before the United States District Courts or any United States Court of Appeals. As with state appellate courts, admission to the bar of a federal district or appellate court is granted upon payment of a fee and taking an oath of admission. These requirements are often different (such as not requiring a fee) for attorneys who appear before federal courts on behalf of the United States federal government, such as Assistant United States Attorneys. An attorney must apply to each district separately. As the United States Bankruptcy Courts are divisions of the District Courts, admission to a particular US District Court usually includes automatic admission to the corresponding Bankruptcy Court. However, it is possible for an attorney not admitted to the district to be admitted pro hac vice. This means under permission by the court for representing a client in a particular matter.
We are unable to give legal advice, as this service provides information of a general legal nature. What to say will depend on all the facts and circumstances in your situation. In foreclosure lawsuits, the debtor typically asks the court for three things, in the following order:
-a temporary restraining order (which lasts for a certain number of days, typically under 2 weeks)
-a preliminary injunction (will last until the court decides the case), and
-a permanent injunction (which will be granted if you win your case).
An answer is a legally sufficient response to the allegations that have been alleged against you in the complaint. The answer will generally either admit or deny each claim made by paragraph, or state an inability to admit or deny for lack of knowledge. Defenses may also be raised. Lack of funds and inability to pay is not considered a valid defense. A valid defense may include such excuses as identifying the incorrect borrowing party to the loan contract, or having made all payments on time, among others. The answer is an opportunity to show why the property shouldn't be foreclosed upon. Lack of funds and inability to pay is not considered a valid defense. A valid defense may include such excuses as identifying the incorrect borrowing party to the loan contract, or having made all payments on time, among others. The answer is an opportunity to show why the property shouldn't be foreclosed upon.
Types of Foreclosure.
The mortgage holder can usually initiate foreclosure anytime after a default on the mortgage. Within the United States, there exist several types of foreclosure. Two are widely used, with the rest being possibilities only in a few states.
The most important type of foreclosure is foreclosure by judicial sale. This is available in every state and is the required method in many. It involves the sale of the mortgaged property done under the supervision of a court, with the proceeds going first to satisfy the mortgage, and then to satisfy other lien holders, and finally to the mortgagor. Because it is a legal action, all the proper parties must be notified of the foreclosure, and there will be both pleadings and some sort of judicial decision, usually after a short trial.
The second type of foreclosure, foreclosure by power of sale, involves the sale of the property by the mortgage holder not through the supervision of a court. Where it is available, foreclosure by power of sale is generally a more expedient way of foreclosing on a property than foreclosure by judicial sale. The majority of states allow this method of foreclosure, including New Hampshire. Again, proceeds from the sale go first to the mortgage holder, then to other lien holders, and finally to the mortgagor.
Other types of foreclosure are only available in limited places and are therefore considered minor methods of foreclosure. Strict foreclosure is one example. Under strict foreclosure, when a mortgagor defaults, a court orders the mortgagor to pay the mortgage within a certain period of time. If the mortgagor fails, the mortgage holder automatically gains title, with no obligation to sell the property. Strict foreclosure was the original method of foreclosure, but today it is only available in New Hampshire and Vermont.
Statutory redemption allows the mortgagor to redeem the mortgage even after foreclosure sale. About one-half the states have statutory redemption laws. Generally, these laws give anywhere from six months to a year for the mortgagor to redeem the mortgage by payment of the foreclosure sale price plus a statutory rate of interest to the sale purchaser. Junior lien holders also have a right to redeem under these statutes, in order of their priority, though not until the period for the mortgagor to redeem runs out. As a rule, the mortgagor can retain possession of their property during this statutory redemption period.
Federal Laws Affecting Foreclosure:
At least two federal laws clearly apply to foreclosure actions.
The filing of any bankruptcy action automatically stays a foreclosure proceeding, regardless of type. At that point, whether the stay will be lifted depends on whether the mortgagor has equity in the mortgaged property. If the bankruptcy has been filed under a Chapter 11 petition, the bankruptcy court may "terminate, annul, modify or condition such stay" for cause, including the lack of adequate protection of an interest in property of the mortgage holder, or if the mortgagor does not have equity in the property and the property is not necessary for an effective reorganization.
If it has been filed as a straight bankruptcy petition, asking for discharge of all debts, the mortgage holder will be allowed to foreclose if the bankrupt debtor has no equity in the property. If there is equity in the property, the property can be sold by the bankruptcy court.
Servicemembers Civil Relief Act of 2003.
The Servicemembers Civil Relief Act of 2003, replacing the Soldiers and Sailors Relief Act of 1940, gives special protection to mortgagors on active duty in the armed forces for mortgage loans executed prior to when they went into service. The Act provides that a service person can apply to a court to set aside a default judgment leading to a foreclosure action. Because of this provision, a mortgage holder initiating a foreclosure action against a mortgagor who fails to answer the foreclosure complaint must file an affidavit with the court stating the mortgagor is not on active duty in the armed services.
If the mortgagor is in the armed services, the individual must be present or represented at the foreclosure hearing, meaning foreclosure by power of sale is not available. If a court finds that the mortgagor's ability to meet the terms of the mortgage has been affected by their service in the armed forces, they can stay the foreclosure action as long as the person is in the service.
For further discussion, please see:
Although the charge for this service only covers one question, the following information is provided as a courtesy. If evidence is introduced to prove what someone else who's not in court said, it may be hearsay and not allowed.
The hearsay rule is a rule of evidence which prohibits admitting testimony or documents into evidence when the statements contained therein are offered to prove their truth and the maker of the statements is not able to testify about it in court. Hearsay is "second-hand" information. Because the person who supposedly knew the facts is not in court to give testimony, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine him or her. Therefore, there is a constitutional due process danger that it deprives the other side of an opportunity to confront and cross-examine the "real" witness who originally saw or heard something.
However, there are numerous exceptions to the hearsay rule. Exceptions include:
a. a statement by the opposing party in the lawsuit which is inconsistent with what he/she has said in court
b. business entries made in the regular course of business, when a qualified witness can identify the records and tell how they were kept
c. official government records which can be shown to be properly kept
d. a writing about an event made close to the time it occurred, which may be used during trial to refresh a witness's memory about the event
e. a "learned treatise" (historical works, scientific books, published art works, maps and charts)
f. judgments in other cases
g. a spontaneous excited or startled utterance
h. contemporaneous statement which explains the meaning of conduct if the conduct was ambiguous
i. a statement which explains a person's state of mind at the time of an event
j. a statement which explains a person's future intentions
k. prior testimony under oath
l. a declaration by the opposing party in the lawsuit which was contrary to his/her best interest if the party is not available at trial
m. a dying declaration by a person believing he/she is dying
n. a statement made about one's mental set, feeling, pain or health, if the person is not available-most often applied if the declarant is dead
o. a statement about one's own will
p. other exceptions based on a judge's discretion that the hearsay testimony has surrounding circumstances indicating that it must be reliable.
It will be a matter of subjective determination for the court, based on all the facts and circumstances involved.