Can someone please help me??

[jessegirl]

Can someone explain to me about chapter 13 questions:

My parents have filed a chapter 13. Now I looked on pacer and it was
saying that he has a meeting at the trustee office?? Is that normal not to
have it at the courthouse?

Then I see more things filed on pacer and it says that they also have a confirming hearing at the court house in Jan 2010? Is it normal to have 2 meetings?

I did a chapter 7 so I know nothing about a 13. BTW, i will also be filing a chapter 13 in the next few months to strip a lein. I know you can't just strip a lein. So I am going to pay back my first mortgage in the plan and then strip the lein with it on the second.

Anyways, can someone please explain the steps of a 13? My parents are very eldery and are sooo nervous. They are close to 80...It breaks my heart.
My father is asking my questions like. Will they be checking his checking every month to see if there is any money left over?

Thanks and so sorry for asking all the questions.

Jessegirl

[justbroke]

My parents have filed a chapter 13. Now I looked on pacer and it was saying that he has a meeting at the trustee office?? Is that normal not to have it at the courthouse?

The 341 Meeting of Creditors can not be held in a court room or where a Judge is present. It is held by the United States Trustee (UST), and is where the panel Trustee, and perhaps creditors, get a chance to examine the Debtor under oath (for the first time).

In other words, this is entirely normal! In many cases, the Trustee has offices inside the Courthouse... as this is for convenience only (it is still not in a court room and is not before a Judge). In some cases, the 341 Meeting is held in a different location.

Then I see more things filed on pacer and it says that they also have a confirming hearing at the court house in Jan 2010? Is it normal to have 2 meetings?

The confirmation hearing is actually at the courthouse. This is separate from the 341 Meeting. You can learn more about the Chapter 13 process from the U.S. Bankrutpcy Court's website.

I did a chapter 7 so I know nothing about a 13. BTW, i will also be filing a chapter 13 in the next few months to strip a lein. I know you can't just strip a lein. So I am going to pay back my first mortgage in the plan and then strip the lein with it on the second.

When did you do your Chapter 7? I hope it was more than 4 years ago. While you can file a Chapter 13 after receiving a discharge in a Chapter 7... you cannot receive a discharge from the Chapter 13 without 4 years having elapsed from your prior Chapter 7 discharge. This is a very important distinction. In order to strip a lien, you must receive a discharge. Since you can't receive a discharge if you received one in a Chapter 7 within 4 years of filing... you can't strip the lien!

Were you going to use an attorney for this? I'm asking because a Chapter 20 (a Chapter 7 followed by a Chapter 13), is really only good to cure arrears on a mortgage and/or to pay priority tax debt.

[AngelinaCatHub]

Greetings Jessiegirl. Been a long time. Here is a good explanation page. This excerpt is what you are attempting to do.

"Chapter 20"

A so-called "Chapter 20" bankruptcy is the process filing of a "Chapter 7" bankruptcy to discharge unsecured debts, followed by a "Chapter 13" bankruptcy to allow the debtor to catch up on mortgage payments. The 2005 Bankruptcy Reform Act attempts to limit "Chapter 20" bankruptcies by imposing limits on the filing of successive bankruptcies. Under current bankrupcy law a Chapter 13 bankruptcy may be filed only once every two years, and three years must pass after the filing of a Chapter 7 bankruptcy before a Chapter 13 filing. Some debtors attempt to circumvent this restriction by filing for Chapter 13 protection while the Chapter 7 petition is still pending. That option is not available in all courts. In a "Chapter 20" bankruptcy, debtors should be aware that missing even one mortgage payment after filing the initial "Chapter 7" petition may cost them their ability to save their home in a subsequent "Chapter 13" filing.

http://www.expertlaw.com/library/bankruptcy/bankruptcy.html

[jessegirl]

The 341 Meeting of Creditors can not be held in a court room or where a Judge is present. It is held by the United States Trustee (UST), and is where the panel Trustee, and perhaps creditors, get a chance to examine the Debtor under oath (for the first time).

In other words, this is entirely normal! In many cases, the Trustee has offices inside the Courthouse... as this is for convenience only (it is still not in a court room and is not before a Judge). In some cases, the 341 Meeting is held in a different location.

The confirmation hearing is actually at the courthouse. This is separate from the 341 Meeting. You can learn more about the Chapter 13 process from the U.S. Bankrutpcy Court's website.


When did you do yoru Chapter 7? I hope it was more than 4 years ago. While you can file a Chapter 13 after receiving a discharge in a Chapter 7... you cannot receive a discharge from the Chapter 13 without 4 years having elapsed from your prior Chapter 7 discharge. This is a very important distinction. In order to strip a lien, you must receive a discharge. Since you can't receive a discharge if you received one in a Chapter 7 within 4 years of filing... you can't strip the lien!

Were you going to use an attorney for this? I'm asking because a Chapter 20 (a Chapter 7 followed by a Chapter 13), is really only good to cure arrears on a mortgage and/or to pay priority tax debt.

Hi and thanks for your answers.
Yes, I have received my discharge from my chapter 7 about 7 months ago. I am going into a chapter 13 and will be in that for probably 5 years. I am paying back my catching up on my first mortgage and my attorney says that once I am done with the chapter 13 that he will strip the lein that is on my house from the second mortgage that was discharged in my chapter 7. I hope I am making sense with this.

[justbroke]

I am paying back my catching up on my first mortgage and my attorney says that once I am done with the chapter 13 that he will strip the lein that is on my house from the second mortgage that was discharged in my chapter 7. I hope I am making sense with this.

The only reason why it doesn't make sense to me, is because you can't strip the lien unless you receive a discharge! Since you can't receive a discharge in that Chapter 13... you can't successfully strip the lien.

[lrprn]

My parents have filed a chapter 13. Now I looked on pacer and it was saying that he has a meeting at the trustee office?? Is that normal not to have it at the courthouse?

As JustBroke explained, this is perfectly normal.

Is it normal to have 2 meetings?

Yes, again as JB explained, the first is the 341 meeting and the second is the plan confirmation hearing.

BTW, i will also be filing a chapter 13 in the next few months to strip a lein. I know you can't just strip a lein. So I am going to pay back my first mortgage in the plan and then strip the lein with it on the second.

I have the same concerns JB expressed. Since your 7 was so recent, if you file a 13 it keeps the foreclosure wolves at bay, but with no discharge, I don't see how it will allow you to strip your second mortgage. Please go back to your lawyer and ask him to explain in detail how he is certain that he can get your second mortgage stripped with no discharge. Also make appointments with 2-3 other Ch 13-experienced bk lawyers in your area and ask if whether a 13 filed now can be used to strip your second mortgage or not.

My father is asking my questions like. Will they be checking his checking every month to see if there is any money left over?

No. After their plan is confirmed, the trustee looks to see if they are making their payments on time. They also will probably have to provide copies of their tax returns every year. That's it.

No trustee has the time to watch over every one of their multiple numbers of Ch 13 filers' ongoing finances in depth. Just doesn't happen. Tell your father not to worry about that.

[rrockinggramma]

to the OP. The rules have changed about the chapter 20 situation. You want to strip a lein and thereby "discharge" it in your chapter13. To do that you need to wait 4 YEARS from the file date of your chapter 7. You are free to "file" a chapter 13 but CANNOT receive any discharge of those debts until 4 years from the file date of your chapter 7. There was another poster who was in the same boat and I believe that you will not be able to discharge your 2nd as you think. Get attorney opinion to know for sure.

[justbroke]

Okay, so I was looking up some things and doing some research, and found this on my Favorite Bankruptcy Site. So, I stand corrected... in some Districts, you may be able to lien strip in a Chapter 20! (That is, you may be able to file a Chapter 7, then strip a second lien in a serial Chapter 13.)

However, Bankruptcy Law Network concedes that the case has some very specific "differences" from most. This case was a married couple and only one filed, so the lien does really stick as far as the non-debtor spouse is concerned. So, don't really get your hopes up, but it is interesting!

(Also, the Debtor voluntarily dismissed his Chapter 13 case, so... don't know what this all really means.)

Bankrupty Law Network - Chapter 20: San Diego Bankruptcy Court allows Lien Stripping in Chapter 13 after Chapter 7

The Southern District of California Bankruptcy Court in San Diego recently issued a ruling that allowed a junior lien to be removed in a Chapter 13 case, even though the debtor was not eligible to obtain a discharge. Discharge was not available since the debtor previously filed a chapter 7 petition and the new bankruptcy laws prevented a subsequent discharge within 8 years of that filing in another chapter 7 or 4 years in a chapter 13. Nevertheless, repeat filings without discharge are possible and often referred to as “chapter 20″ cases. Despite NO DISCHARGE, liens can still be eliminated in these cases! ...

[rrockinggramma]

yes, I don't think the OP is understanding that if she/he files now, only 7 months after a discharge in a chapter 7, then any debt LISTED in that chapter 13 filing CANNOT be discharged. Even IF you are in it for 5 years, it doesn't work that way. This part of the law was changed in 2005 to prevent exactly this from happening. For the debt to be discharged, you have to wait 4 years to FILE for any debt to be eligible for a discharge.

[UpsideDownMI]

I believe that the 4 year time frame is from discharge to discharge, not file to file. I will have to check into this.

[justbroke]

I believe that the 4 year time frame is from discharge to discharge, not file to file. I will have to check into this.

It's discharge to file.

Please see 11 USC 727(f)...

in a case filed under chapter 7, 11, or 12 of this title during the 4-year period preceding the date of the order for relief under this chapter, or

2) in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order.

[UpsideDownMI]

You are correct!

[justbroke]

Actually, that's 11 USC 1328(f). Sorry about any confusion.

[jessegirl]

Ok, I just got off the phone with the attorney. He tells me yes, I can file a chpater 13 even though I was discharged in a chapter 7, 7 months ago. He says that being my second mortgage was discharged in the chapater 7, the lien survives on the house. The only way he says to strip the lein is to stop paying on my first mortgage so that I can have something to pay back in the chpater 13. I will stay in that for 5 years and then after its all paid back - meaning the 6 months of my 1st mortgage payment, the lien will also be stripped off the house once I finish my 5 years in chapter 13. Does that sound right? He tells me that he does it all the time.....Also, when I went to my 341 for the chapter 7, the stand in attorney told the trustee that my attorney is going to file a chapter 13 after the 7 is discharged to strip the lien. She said ok. Is it right or not? I don't want to pay all this money and then I can't do it.

I did owe 90K on the second mortgage. My first mortgage is about 70K more then what the house is worth.

I am really CONFUSED!!!

[justbroke]

Ok, I just got off the phone with the attorney. He tells me yes, I can file a chpater 13 even though I was discharged in a chapter 7, 7 months ago. He says that being my second mortgage was discharged in the chapater 7, the lien survives on the house.

yes, the lien survives the Chapter 7.

The only way he says to strip the lein is to stop paying on my first mortgage so that I can have something to pay back in the chapter 13.

Interesting "strategy". In other words, you need some reason to be in a Chapter 13, so you purposefully stop paying your first, only to cure it. (To me that sounds like "bad faith" right from the start.)

I will stay in that for 5 years and then after its all paid back - meaning the 6 months of my 1st mortgage payment, the lien will also be stripped off the house once I finish my 5 years in chapter 13. Does that sound right?

Which District are you in? Other than San Diego (Southern California), I've never read a sucessful post-BAPCPA Chapter 20 lien stripping case.

He tells me that he does it all the time...

Have him cite 2 cases.

Also, when I went to my 341 for the chapter 7, the stand in attorney told the trustee that my attorney is going to file a chapter 13 after the 7 is discharged to strip the lien. She said ok. Is it right or not? I don't want to pay all this money and then I can't do it.

Doesn't matter what the Chapter 7 panel Trustee says. Actually, it doesn't matter what any Trustee says. It would likely go to hearing before the Judge (unless there is some stipulation or something).

I did owe 90K on the second mortgage. My first mortgage is about 70K more then what the house is worth.

That's good for lien stripping.

My actual issue is that people keep "hearing" from attorneys that they do this, but not one attorney has demonstrated 2 cases where it worked. That's why, when you're in doubt, have the attorney cite two of his cases where the Debtor successfully stripped a junior lien in a Chapter 20... post the BAPCPA amendments of 2005.

I want to see one for myself because I'm thinking I could have just gone that route! But, I haven't heard of one. (One exception, the one I posted above, but even that one failed.)