Ch 13 and Missed Mortgage Payment

[bluethunderx]

My wife and I recently filed for Ch. 13 about 4 months or so ago...have made every BK payment on time (only 56 more to go!) anyways, this month, it looks as though we will not be able to make our full mortgage payment (we have a first and second...were able to make the second payment, but not the first). I contacted our mortgage company and was told to contact our attorney. We have an appointment set up for the end of the week with our attorney, but everything I've read online regarding this doesn't give me much hope that anything can be worked out. We want to keep our house for sure, can anyone here gives us a ray of hope at least? Or am I right to assume that we may be out of options?

[lrprn]

If you can't make up the missed payment on your first mortgage quickly (like within the next two weeks), then your first mortgage lender can petition the court to lift your stay and start foreclosure proceedings.

Can family or friends help with a 'gift'?

What's the likelihood that whatever happened this month to make you unable to make both mortgage payments this month can happen again? Was it a budgeting issue or an unexpected expense that popped up?

[Pattie Smith]

I do not think the mortgage company would be foreclosing with only one payment. I could see if you were two to three months late.

[lrprn]

I do not think the mortgage company would be foreclosing with only one payment. I could see if you were two to three months late.

If you haven't filed bankruptcy, then you're right - the mortgage lender will often wait for 2-3 months (sometimes more) of missed payments to start foreclosure actions.

However, in an active bankruptcy without a signed reaffirmation agreement, the rules change. Most lenders will ask to lift the stay after one missed payment unless your lawyer works with them to reach an agreement to delay asking the court to lift the stay. Some lenders might choose to stall for a little longer, but the chances of that happening are lower in an active bankruptcy.

There are many posts here from filers who found themselves served with a court filing from their lender asking to lift their automatic stay after one missed payment on a secured asset. To keep secured assets after filing, always make those payments on time without fail.

[Pattie Smith]

I am sorry I didnt know that, we are two weeks behind in our 1st mtg, so I guess we have to worry real soon. Have had a lot of medical bills recently.

[lrprn]

...we are two weeks behind in our 1st mtg, so I guess we have to worry real soon. Have had a lot of medical bills recently.

I'm so sorry to hear this, Pattie After filing, your lives will all take a giant step forward to many more positive times and much less stress for your family. Hang in there!

[justbroke]

If you are ever having problems making payment son a Chapter 13, you need to immediately work with your attorney. There are things they can do, through working with the Trustee. This includes having your payments suspended and/or amending your confirmed plan.

[Pattie Smith]

We are going to be able to make August mtg payment on Thursday. Thank you everyone for you responses. Have a wonderful day.

[deerme]

I have a 15 grace period on my mortgage and if I was one day late they were filing a motion to have the automatic stay lifted. They tried it twice but luckily I keep very good records and had proof that they received it well before the 15 days was up. I had delivery confirmations from the USPS confirming when they were signed for and that showed the delay in posting them to my account.

I think the mortgage companies set you up to fail when you file for CH 13. After the second time they tried to have the automatic stay lifted and lost, then they posted my payment to my account the day it arrived. Absolutely every month now my payment is immediately posted. I feel like I beat them on this at least.

Good luck and yes, call on family if you must, but find a way to get your mortgage current and then make it your No 1 priority, even before your second mortgage payment.

[lrprn]

I have a 15 grace period on my mortgage and if I was one day late they were filing a motion to have the automatic stay lifted. They tried it twice but luckily I keep very good records and had proof that they received it well before the 15 days was up. I had delivery confirmations from the USPS confirming when they were signed for and that showed the delay in posting them to my account.

Good for you, deerme!! Unfortunately this is a known practice by some mortgage companies (get the payment on time but don't post it to the account until *after* the grace period). They don't just do it to Ch 13 filers - they do it to others to artificially create late fees too. Some will do anything to make money no matter how scummy it may be.

I think the mortgage companies set you up to fail when you file for CH 13. After the second time they tried to have the automatic stay lifted and lost, then they posted my payment to my account the day it arrived. Absolutely every month now my payment is immediately posted. I feel like I beat them on this at least.

I know about one court case where a mortgage lender quietly held mortgage payments received on time by a Ch 13 couple and then deliberately posted them late for the entire length of a filer's Ch 13 plan.

When the filers finished their 13 plan successfully, their mortgage lender presented the filers with a large bill consisting of monthly late payment fees that grew exponentially (and were charged interest!) for five years. Luckily these filers did what you did - they fought back and took their mortgage lender to court and won. The mortgage lender was forced to wipe the late fees out.

The sad part is that it cost the filers several thousand dollars to take their mortgage company to court and win their case. The mortgage companies have incredible financial advantage in these situations and they know it.

I wonder how many Ch 13 filers get an artificially faked bill from lenders in the mail after their plans are over and the filers just pay it because they want everything to be over and move on....probably thousands It frustrates me to no end because we 'little people' have so few realistic ways to fight back against this kind of cheating by big lenders because it costs so much to take them to court.

[deerme]

Yikes, that is so scary that they can get away with that. The other thing that worries me is that my mortgage statement shows a 'partial payment' balance that is currently higher than a mortgage payment. This amount has been sitting there for nearly two years. They put payments from the Trustee for my arrears and then for the payments they refused in this spot until there was enough for a payment. Then it was applied to my account. But this has been there forever and has recently grown. I called them and asked them about it but I had some bimbo on the phone and she said to wait until I am discharged to see what happens.

The other thing is that I was with Countrywide who is now Bank of America...I think there will be a 'we don't know what you are talking about' thing happening. I am keeping a close watch on it all but was wondering if anyone else had this happen with a partial payment balance.

Thanks.

[lrprn]

...wondering if anyone else had this happen with a partial payment balance.

(Warning.....long personal story commencing.... )

When we filed, our mortgage company almost immediately filed an objection stating we were in arrears on filing day when we filed. We weren't and could prove it with their own paperwork. We have an excellent lawyer who hates the "big boys" bullying filers this way, so he pushed back hard. After negotiations with our mortgage company's local lawyer proved fruitless, about six months after we filed he forced them into court to prove we were in arrears. (He knew they couldn't - we gave him the monthly receipts on their own letterhead showing we were in good standing on filing day).

On court day, our lawyer was there, but sure enough, our mortgage company's lawyer was a no show. Our local bk judge threw their objection to the curb

Here's the best part - after we filed, our mortgage company filed a claim to be paid back the court filing fee and their lawyer fees and time for filing their objection against us.....oh yes, their conceit knows no bounds!

Our trustee was already disbursing funds and had already paid our mortgage company about $75 towards their claim. As soon as our judge threw out the objection, our lawyer got after our trustee who then had to get the money he paid our mortgage company back - and he did!

Every six months throughout the life of our plan, I've been requesting an accounting from our mortgage company. All of a sudden after their objection was dismissed by our judge, the same amount of money that they had asked to be paid showed up as an "administrative fee" on our mortgage! We got our lawyer after that too, and with another threat to go back to court to prove the legitimacy of the fee, the mortgage company took it off.

I still watch everything our mortgage company does like a hawk. I watch to make sure they are posting our payments on time every month. I continue to request an accounting every six months and will do so until our case is over. Our lawyer has already said that if our mortgage company presents us with anything odd to pay afterwards, he will personally take them on again.

So far, all is quiet. Our payments are posted quickly and no odd "fees" have appeared on our mortgage accounting. I'm hoping that our mortgage company has learned that we are willing to take them on (and win!) so won't try anything shady in our case.

[deerme]

Way to go Lrprn! I never hesitate to call my mortgage company when I see something odd. The automatic stay said they could not call me, nothing about me calling them!!

There oughta be a law!!