should I refile? or try to sell my home?

[vikings4mags]

Hello all, I was previously in a chapter 13 that was dismissed for missed payments. Actually I had payroll deduction the last year but had a few months prior to that that were past due and not made into the plan. I did contact my lawyer when I knew I couldn't make the payments to see if they would ask the trustee to suspend payment or modify my plan. He didn't do anything about this situation to help me out. They included my bf income into the plan because he is on the house with me, so it also protected him from mortgage foreclosure. When he lost his job last summer I thought seeing his income went from $450 a week to $0. That is seemed reasonable to ask the trustee to work with me on the missed payments. Every month I would get a letter from my trustee about the behind payments saying that if I couldn't catch up in 30 days to contact my lawyer. Which I did every month but he just ignored the situation. Now I have been dismissed and my house went back to foreclosure. It was dismissed without prejudice so I know I can refile my 13. When I got the dismissal. I callled my lawyer and he wouldn't return my calls. So I gave up on him do you think I would be wise to start calling other bankruptcy lawyers. I don't want to do this all again but I feel that after 23 months done already I have no choice but to do another 36 month plan. Or would I be smarter to call the mortgage company and ask them if I could sell the house with an agent and ask them to prolong the foreclosure for next month. I have about $5k equity left if after selling and paying them off. I can find a another place to live. I don't know if they will even consider this. I think that if it goes to auction they are chancing losing money. Has anyone ever approached a mortgage company about selling to payoff loan instead of them proceeding with foreclosure. Any feedback would be appreciated. I don't even know this mortgage company seeing it changed hands since my previous mortgage company before I filed 13 in 2006. Any suggestions greatly appreciated.

[fooked]

I would definitely contact another attorney.

[lrprn]

do you think I would be wise to start calling other bankruptcy lawyers.

YES! And this time interview 3-4 experienced bk lawyers in your area before deciding on one. Ask every one of them how they like to be contacted and have a clear understanding of what they will do for you during your Ch 13. You know what to expect now, so finding a lawyer who will represent you well should be easier this time.

I'm so sorry that your first lawyer did not help you when you had missed payments. Please report him/her to the appropriate legal bodies in your state for misrepresentation. Here's two links that provide contact information for lawyer disciplinary bodies in your state - http://www.abanet.org/cpr/regulation/directory.pdf and http://research.lawyers.com/Reportin...iolations.html

I feel that after 23 months done already I have no choice but to do another 36 month plan.

If you file Ch 13 again, then you are right - the clock starts over like the first Ch 13 never happened.

Or would I be smarter to call the mortgage company and ask them if I could sell the house with an agent and ask them to prolong the foreclosure for next month.

I think your chances of getting your mortgage company to go along with this are very small in the current housing market.

Are you filing Ch 13 to save the house? If you are, is your house still worth more on the current real estate market than what you owe on it?

[vikings4mags]

thank you for your response. I wanted to stay in my house for 2 more years when my son is done with college. I was gonna sell then. I do have a place to go if I sold my house. I just wanted it to be by my choice not theirs. I just wanted to complete the chapter 13 and move on fresh. So I know I have to decide quickly. I will need to refile before September 15th. I definately have equity. Minimal amount $5k after payoff, commission and everything. I talked to a realtor and they said I could probably walk away with closer to $15k but I am being conservative here. There is no real reason to believe my house wouldn't sell in the upstate NY market. Houses are selling here as long as people are not trying to make appraise value. So If I refile then I am stuck here in NY atleast 3 more years which is not what my goal is, I just don't want to look stupid calling the mortgage company and suggesting this win win situation for both of us. But realisticlly why would they care about me? i guess I'll call around and get some info. If I called a forclosure lawyer do you think they would get the mortgage company to let me sell instead of foreclose?

[lrprn]

If I called a forclosure lawyer do you think they would get the mortgage company to let me sell instead of foreclose?

Unfortunately hiring a foreclosure lawyer won't help in your situation because your mortgage company has done nothing legally wrong. No lawyer can force your mortgage company to accept a mortgage modification, a short sale, etc - initiating or accepting these is purely voluntary by the lender.

Is your son going to college while living at home or is he living on campus?

Although I know it's a hard thing to think about, have you considered allowing the house to foreclose and walking away for now? If you did that, it sounds like you could pay off the mortgages if the house auctions for a fair price. And if it doesn't, then you could refile your bankruptcy at that time.

Of course, this assumes that without the mortgages you could pay off your unsecured debt (which has now reactivated with a vengeance after your 13 was dismissed) within five years. Can you?

[vikings4mags]

My son is living on campus. Does that matter? As far as unsecured debt I have only 3100 so yes it could be paid of without filing bankruptcy. My chapter 13 bankruptcy filing was due to only my mortgage and unpaid taxes.

[lrprn]

My son is living on campus. Does that matter?

It would matter if you were considering surrendering the house and filing a Ch 7 instead. Some trustees and local courts will not allow a student that's living away from home most of the year to be counted as a family member for your state's median income. Since you said you are trying to refile a 13 to save your house and you have very little unsecured debt, there's no obvious reason to file a 7.

As far as unsecured debt I have only 3100 so yes it could be paid of without filing bankruptcy. My chapter 13 bankruptcy filing was due to only my mortgage and unpaid taxes.

A different path that might meet your needs better than re-filing Ch 13 is to see if your mortgage lender is willing to refinance your loan with a payment plan to make up the arrears. Mortgage lenders have been more receptive to refinancing and payment plans as foreclosures have skyrocketed over the last six months.

Also it's possible to work out a payment plan for your taxes owed with the IRS - here are options and how to start that ball rolling - http://www.irs.gov/taxtopics/tc202.html

If neither of these is possible for you, then you may have to accept that in order to use Ch 13 as a structured refinance plan for your home and taxes, you will have to make some personal life sacrifices to make that happen.

Keep us posted about what you decide to do. And please....do report your first lawyer to the appropriate legal bodies in your state so others can avoid the horrible experience you had.