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Ch13 and Foreclosure

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    #1

    Ch13 and Foreclosure

    A week ago I received a foreclosure notice on my home. (A loan modification application was sent in but the bank says they didn't get it. Right! It is being resent). It stated an auction date of three weeks from now!

    I've been doing some reading about Ch13 and I read that since I have already received the foreclosure notice, the bank can request a lift of the automatic stay so they can proceed with foreclosure. Is that true?
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    #2
    Originally posted by spearmint View Post
    ...since I have already received the foreclosure notice, the bank can request a lift of the automatic stay so they can proceed with foreclosure. Is that true?
    If you already filed Ch 13 and then received the foreclosure notice, then yes, your bank is trying to lift your automatic stay so they can take your house. The question is why they believe they can do that. Where you late making a mortgage payment (even by one day) after you filed? (And don't count the grace period.)
    I am not a lawyer and this is not legal advice nor a statement of the law - only a lawyer can provide those.

    06/01/06 - Filed Ch 13
    06/28/06 - 341 Meeting
    07/18/06 - Confirmation Hearing - not confirmed, 3 objections
    10/05/06 - Hearing to resolve 2 trustee objections
    01/24/07 - Judge dismisses mortgage company objection
    09/27/07 - Confirmed at last!
    06/10/11 - Trustee confirms all payments made
    08/10/11 - DISCHARGED !
    10/02/11 - CASE CLOSED
    Countdown: 60 months paid, 0 months to go

    Comment

      #3
      Originally posted by lrprn View Post
      If you already filed Ch 13 and then received the foreclosure notice, then yes, your bank is trying to lift your automatic stay so they can take your house. The question is why they believe they can do that. Where you late making a mortgage payment (even by one day) after you filed? (And don't count the grace period.)
      I haven't filed Chapter 13 yet. The Neighborhood Assoc of America sent a loan mod app to my mortgage company on the 6th but the bank is saying they didn't get it. (They have told hundreds of people the same thing - we didn't get it!). A week later (AFTER they agreed to the government moratorium on foreclosures) I got a notice taped to my door.

      So, I got the notice before filing Chapter 13 and I am wondering if that would let them foreclose anyway.

      Comment

        #4
        Originally posted by spearmint View Post
        So, I got the notice before filing Chapter 13 and I am wondering if that would let them foreclose anyway.
        If you file Ch 13 after receiving the foreclosure notice, then your automatic stay stops the foreclosure. If your plan is confirmed and pays back all mortgage arrears, and you continue to make your mortgage payments on time, then you get to keep your home.

        Now the question to ask yourself is given what your family earns, after your Ch 13 is over, can you afford to keep your home? If the answer is no, then it's better to surrender the home as a part of your Ch 13 now.
        I am not a lawyer and this is not legal advice nor a statement of the law - only a lawyer can provide those.

        06/01/06 - Filed Ch 13
        06/28/06 - 341 Meeting
        07/18/06 - Confirmation Hearing - not confirmed, 3 objections
        10/05/06 - Hearing to resolve 2 trustee objections
        01/24/07 - Judge dismisses mortgage company objection
        09/27/07 - Confirmed at last!
        06/10/11 - Trustee confirms all payments made
        08/10/11 - DISCHARGED !
        10/02/11 - CASE CLOSED
        Countdown: 60 months paid, 0 months to go

        Comment

          #5
          Originally posted by lrprn View Post
          If you file Ch 13 after receiving the foreclosure notice, then your automatic stay stops the foreclosure. If your plan is confirmed and pays back all mortgage arrears, and you continue to make your mortgage payments on time, then you get to keep your home.

          Now the question to ask yourself is given what your family earns, after your Ch 13 is over, can you afford to keep your home? If the answer is no, then it's better to surrender the home as a part of your Ch 13 now.
          Is it true that the bank could ask the judge to remove the automatic stay so they can go ahead and sell it anyway?

          Comment

            #6
            Originally posted by spearmint View Post
            Is it true that the bank could ask the judge to remove the automatic stay so they can go ahead and sell it anyway?
            Your mortgage lender has to have a legitimate legal reason to do that - such as you not paying your mortgage payment on time after filing. They can't just file a request to lift the stay because they want to.
            I am not a lawyer and this is not legal advice nor a statement of the law - only a lawyer can provide those.

            06/01/06 - Filed Ch 13
            06/28/06 - 341 Meeting
            07/18/06 - Confirmation Hearing - not confirmed, 3 objections
            10/05/06 - Hearing to resolve 2 trustee objections
            01/24/07 - Judge dismisses mortgage company objection
            09/27/07 - Confirmed at last!
            06/10/11 - Trustee confirms all payments made
            08/10/11 - DISCHARGED !
            10/02/11 - CASE CLOSED
            Countdown: 60 months paid, 0 months to go

            Comment

              #7
              Whew! Thank you very much. I had a sleepless night last night worrying about this.

              Comment

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