Current with payments to trustee but behind on mortgage

[Stressedintx]

I am currently 27 months into a 60 month plan. My trustee payments are garnished through my employer and are current; however, I am behind on my mortgage payments. My sole purpose for filing was to save my house, and was behind approximately 6,000, which was rolled into my plan. My dilemma is I have been unable to afford to continue making my monthly mortgage payment to Wells Fargo. My plan is to catch up these payments before discharge, but in the meantime, could Wells Fargo attempt to foreclose, since I am behind?

[justbroke]

Stressedintx I am always sorry to read that a Chapter 13 debtor is having trouble. If you're having this much trouble making payments, you may need to re-evaluate everything. A Chapter 13 debtor that falls behind on secured debt payments can typically petition the court to add "post-filing" (and even post-confirmation) payments from post-petition "arrearages". However, the Court and Trustee typically want these post-petition arrearages to be paid in 6 months. You can't stretch it across the Chapter 13 because this is really what they call an "adequate protection" issue. (Merely means that the collateral may be decreasing yet they are not receiving "adequate" money to protect or hedge their losses. Even if your property is appreciating, it doesn't matter.)

I would IMMEDIATELY contact my attorney and tell him/her exactly what is going on. This is not something you want to put off for days, weeks, and/or months trying to figure it out on your own. There are options, but it could make submitting a plan modification "infeasible". By "infeasible" I mean a plan which could not be possible given the income alongside required plan payments (both priority, administrative, arrearages and secured debt).

I'm not trying to scare you. I'm trying to motivate you. If you don't mind sharing, just why did you fall behind and how many months -- and $$$ -- are we talking?

As for your actual question -- "could Wells Fargo attempt to foreclose, since I am behind?" the answer is: They could seek relief form the automatic stay from the bankruptcy estate. If you are paying outside the plan, at least in Florida, the stay doesn't exist for such a creditor and they could proceed directly to foreclosure. Since you are paying arrearages inside the plan, I would guess that Wells would certainly be bound by the automatic stay and would have to motion for relief from the automatic stay (RFS) in order to proceed with foreclosure.

[Stressedintx]

Unfortunately, a messy divorce and lack of child support caused me to seek out bankruptcy, thinking it would be my best choice to save my house; however, part of me wishes I would have just let it go. I am required to continue making my current monthly mortgage payments to Wells Fargo, but it has been hit or miss being able to afford this. I am over 10,000 in arrears at this point. I have even thought about setting aside money in a savings account to be able to afford an apartment, in case Wells Fargo intervenes. I feel lost and trapped.

[justbroke]

Stressedintx please speak with your attorney. It is highly likely that you can still let the house go without needing to deal with both the current payment, the pre-petition arrearages ($6,000) and these new post-petition arrearages ($10,000). I don't want you to feel lost and trapped. I want you to feel empowered by your bankruptcy. You have choices.

Many times, and especially in bankruptcy, people put a lot of emotion into "things" and property. The house is one thing that people constantly say they "must" keep and "have" to have. The problem is the physical house is not your home. If you seariously can't afford the mortgage today and can't pay the arrearges right now, then you likely have a situation where you will NEVER be able to afford the house compounded by the arrearages and other debt required to be paid in your Chapter 13.

The next person I want you to talk to is your lawyer. You need to revisit your numbers and determine where you are. You may need to Modify your Confirmed Plan and the attorney may be able to get the home surrendered. You may even be able to stay in the home until foreclosed, while saving the money to move. (You could also participate in a Cash for Keys offer... but speak with your attorney.)

It's very important, in a Chapter 13, to immediate talk with your attorney when you miss a payment, your income is reduced, or you have a major expense. The longer you wait, the more difficult it could be to recover. I think you need to sit down and have a serious talk about whether you can afford the "house" that you are trying to save.

[159515951]

If you're that far behind again, and it isn't financially feasible to amend your plan to include the (new) arrears, it may be time to amend your plan to surrender the home and move on. The Trustee may not be too agreeable with the idea of continually adding arrears into your plan, which was supposed to be financially feasible in the first place.

Good luck.