Lift Stay Motion Practice: Very Light Burden of Proof on Fake Foreclosers

On a Scale of 1-12, 11-12 would be beyond a reasonable doubt (criminal cases),

8-9 Clear and convincing evidence (fraud),

6-8, preponderance — i.e., more likely than not (normal civil cases),

3-4 probable cause (criminal — reasonable basis to believe that a crime has been committed and there is a reasonable basis to conclude that the prosecution could prevail based upon the facts alleged at arraignment),

and then 1-2 colorable right to lift stay.

See what I mean? The logic behind it is that all the court is doing is saying that the trustee has abandoned the claim, this is a matter to be decided in the state court and not here, and there seems to be some genuine controversy, but the basics for supporting foreclosure appear to be potentially present.

In reality the lift stay order is treated as res judicata and collateral estoppel in the state court and the order often recites, incorrectly, a finding of fact that US Bank is the holder of the note despite the absence of an adversarial evidential hearing.

If such an order is entered, the appropriate move is a LATERAL appeal to the district court judge, not BAP and not 9th circuit.

The issue is whether the court in bankruptcy court had the right to add any language other than the granting of the motion and whether, given the circumstances of the way it is viewed in state court proceedings, the standard lift stay order should contain a caveat to prevent allegations of res judicata. The district court judges look down on the bankruptcy judges who were, until fairly recently, not judges, but rather referees. Like general masters in divorce proceedings. They are seen as clerical by the civil district court judge and there is a 50% rate of reversals on those appeals whereas you only have 15% in BAP or 9th Circuit.

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