Mortgage Arrearage - no claim filed!

[MotherTrucker]

[lrprn]

What should I do? I want to get this resolved. Can I call the mortgage co. and pay it myself? I'm just sick about this...

Do *not* go around your attorney to speak to the creditor yourself, especially in this situation. Most especially do not pay the creditor any money. Just stay on top of it.

Remember in Ch 13 not much ever happens quickly. We each see only our own Ch 13 case with its specific issues so our time drags by at a glacial pace when the phone doesn't ring or emails don't arrive right away. In the meantime our lawyers are typically dealing with many cases and their time is flying by at light speed.

Call your attorney's office every day he/she is not in court if necessary for "an update". Be polite but firm that you would like a resolution as soos as possible (although your lawyer isn't the driver here - it's your lender).

Make an appointment to talk to your lawyer in person in the office if necessary. Ask if there is anything you can do yourselves to speed up the process. Also ask for a best guess about how long this could drag on.

Hang in there. All will resolve in time - just perhaps not as fast as you would like.

[MotherTrucker]

Thanks so much! You're right - I just need to be patient. This whole process dragging on for five years makes further delays even more difficult to handle. My attorney did say that I'm looking at about $1000 in fees on top of the mortgage payment - in other's experience is this average for a lender?

I need to check my closing docs and find the section on this - I'm sure there is one...

Anyone else out there run into this - end up with fees at the end of your BK? Claim not filed by your mortgage co.?

Thanks again lprn! I really appreciate your response. This forum has a wealth of knowledge and although I wouldn't wish this experience on ANYONE, it is good to know I'm not alone in the BK boat!

[krielly]

sorry I can't offer any legal advice here, but I am failing to understand why you should be responsible for fees associated with this when it was the result of the lender not filing a proof of claim. Why does your attorney feel you are responsible for that amount? I understand that you need to pay the arrears, but the fact that you will be responsible for the other fees as a result of their errors baffles me!!!!!!!

K

[MotherTrucker]

That was my feeling exactly, kreilly. My husband says our attorney has no backbone and goes "belly up" at the first opportunity. I think he may be right here. I've been doing some research and I'm finding a good deal of substantiation for mortgage cos. assessing "junk fees" on Ch. 13 debtors for arrearages - in many cases AFTER the discharge when the debtor no longer has the protection of their BK attorney.

I have found a few links if people are interested:

http://www.abanet.org/genpractice/newsletter/lawtrends/0509/business/mortgagesecuritization.html#

and http://www.************************/...nkruptcy-laws/

The mortgage co. mentioned in the second link is actually my mortgage co.!!! The more I read about it the more frustrated I get. The first link lists the top 7 abuses by mortgage servicers and number 4 involves the lender using software that automatically assesses late fees on post-petition mortgage payments. This has already happened to me (I have paid timely every month since Sept. 06, yet they were assessing late fees every month from Oct. 06 to May 07) and I called the mortgage co. and argued with them till they removed all but one of the late fees. Now I find out they never even filed a proof of claim? How much do you want to bet their "fees" will include attorney's fees? For doing what, exactly? Sucking air?

I believe there is a rule in the code that requires them to disclose the fees and provide an opportunity to object. I'm going to gather all this together and make an appt. to see my attorney. This has gone on long enough.

[lrprn]

I've been doing some research and I'm finding a good deal of substantiation for mortgage cos. assessing "junk fees" on Ch. 13 debtors for arrearages - in many cases AFTER the discharge when the debtor no longer has the protection of their BK attorney.

Good for you for doing your own research, MT!!

We received a frivilous objection from our mortgage lender right after filing when they tried to say we were in arrears one month when we filed (we weren't). Then when they filed a claim, they added in their local lawyer's fees for filing the objection - perfectly within their rights to do so but talk about poking the bear - very annoying!

In the end though, thanks to our lawyer drawing a line in the sand giving them an opportunity to prove their claim at a scheduled hearing, we came out on top. Our lender's objection was thrown out by our bk judge when they were a no-show at the hearing . They knew they couldn't prove we were in arrears because we weren't. I believe it was just a dip of their toe in the water to see if we were willing to fight them. They got their answer They even had to return the $50 our trustee had already distributed to their lawyer - talk about sweetness!

Since then we have been watching our mortgage lender like a hawk. Every month when I get the "informational this-is-not-a bill" listing our payment received, I compare it to the month's previous bill to make certain the entire amount is being applied to principal, interest, etc. And I keep everything we receive and also make sure all inquiries about discrepancies are done in writing by registered mail return receipt. Let them TRY to tack on any extra fees - I'm ready for them!

Our lawyer has already said he will take our lender (and it's a major one) to court if any fees, etc show up after our case is over just for the joy of watching them lose their shirts!

[holding on]

I'm glad this was posted! I have claimed 6 months of arrearage into my Ch13. How do I handle the late fees? Do I call up the lender now and ask what the late fee charges are and start paying some additional with each monthly mortgage payment?

MotherTrucker, glad to hear you go those late fees taken off. How did you acheive that? Just spoke to the lender yourself, or did your attorney get involved?

[MotherTrucker]

I'm glad this was posted! I have claimed 6 months of arrearage into my Ch13. How do I handle the late fees? Do I call up the lender now and ask what the late fee charges are and start paying some additional with each monthly mortgage payment?

MotherTrucker, glad to hear you go those late fees taken off. How did you acheive that? Just spoke to the lender yourself, or did your attorney get involved?

HI holding on - I would talk to your attorney about the late fees on the months you have included in your Chapter 13. They would need to be included in your arrearage payments through your BK. And I would talk to him/her about any and all "fees" your lender tries to include in addition to your late fees. I think if we know the right questions to ask and our attorneys are on board, these mortgage co.s won't be able to get away with unreasonable and excessive fees at the debtors' expense.

Oh, and the late fees I was referring to were charged by my lender for payments I had made timely AFTER I filed my BK petition. Since I am paying my mortgage outside of my plan, when I became aware of the late fees, I basically just blew my top and started arguing and asking to be transferred to someone else until I got someone who understood what I was saying and removed the late fees. I don't know if that was the proper way to handle it or not, but that's how I did it.

And I still haven't gotten my attorney to return my calls on the arrearage issue. I've left 4 messages so far without a response. I've gone through my closing docs on my loan and have found 2 references to reimbursement for reasonable fees, but nothing that addresses BK specifically and of course no amounts. He's back in the office tomorrow. If I don't get a return call I'll make an appt.

I can't stress this enough people - choose wisely when you choose your attorney!!! Interview 3 or 4 if you have to - just make sure they've got your best interests at heart and are willing to fight for you if necessary.

Thanks again to everyone here. I can't tell you what a relief it is to share these issues with people who understand and care! You guys are awesome!

[ruggal]

Almost identical situation here

I have JUST gone through this same problem, however, my mortgage company did file a claim for our arrears plus late fees for the four months.

I have been paying the mortgage since filing a couple of days before the due date (1st of the month) electronically through my bank's online payment center. They have been applying the payment about 2-4 days later, and assessing late fees (over $900) for the last 11 months. I only knew about this when I thought to log onto the mortgage company's online system. Well, I blew a gasket as well, and they've added over $800 in additional attorney's fees since filing as well.

My first call was to the trustee's office who said "they can't do that". So she asked me to keep them updated on the progress, and to cc them on any correspondence. I faxed copies of the late fees to my attorney, and made a call to the mortgage company, who didn't want to talk with me, and said someone from the BK dept would get back to me in a couple of days. I also told the person on the phone, that the US Trustee was very interested in what they were doing, and I needed their name as well for my files. NO one called me back, and supposedly they were mailing me some information about what transpired. Never arrived.

Two weeks later there was a reversal of the $900 or so dollars on my account, so the only late fees on the account are the ones included in my BK filing. The attorney's fees have not to date been reversed.

I've read many articles about the crap the mortgage servicers do to people in BK. It's not right, but obviously up to us to stay on top of it. I know in our district, there is a "model plan" that is worded specifically to avoid what the mortgage companies are doing, it's included in my plan. Basically, the mortgage will be considered "up to date" at the time of discharge, and it's up to the mortgage company to file for additional fees if they want them BEFORE the discharge, otherwise they're out of luck. Doesn't mean they won't be there...

Good luck and keep us posted.

[holding on]

So for clarity sake, when my lender files a claim for arrearage, that figure should include past due payments, all late fees, all attorney fees, every single cent I owe them up to the filing. That gets put into the bk plan, and then I start 'fresh' with the mortgage payments outside the plan.

Thanks for the info that was very helpful. Good Luck MotherTrucker, I hope that's resolved in your favor.

[MotherTrucker]

Hi everyone,
Just wanted to update everyone - after 5 phone calls I finally got in touch with my attorney and he is filing a motion to allow a late claim for the arrearage and he will object to any fees the mortgage co. attempts to add on. It's in the works now and he said it shouldn't add anything to my payment since the arrearage was included from the beginning, just nothing has been paid to it yet since there was no claim filed.
I wanted to thank everyone for listening to me and lprn, you are absolutely correct about being patient!

Keep on Truckin'!