Can someone please explain this?

[jessegirl]

I have received a discharge from a chapter 7. My BK has also closed.

I have now filed a chpater 13, for repayment on arrears 1st mortgage payments. I am in a 36 month payback at 100%. I have no other debt, but just the 1st mortgage arrears. I am also looking to strip a 2nd mortgage lein. I know that I will NOT receive a discharge on my chapter 13 because I am only paying back mortgage arrears. My question is: When will the 2nd lein strip?

Also, Am I able to repay back the chapter 13 in les then 36 months? Like, when I receive my tax refund? I may be able to pay back the arreas in like 12 months. Can I do that, or do you think I should just ride out the plan and not make any waves? I have no other debt because, it was discharged in my chapter 7.

Thanks.Jessegirl

[klandsb]

Since you are in a 100% payback plan u can pay it off early. I guess its 50/50.. Pay it off early and be done with it or keep making your pmts and try and save some money for emergencies or just daily living .... Flip a coin

[optimistic1]

Here is a prime example of a Chapter 20, did you just do the Chapter 7 recently?

[jessegirl]

filed chapter 7 in Sept 2008 and was discharged April 2009. Case closed Dec. 2009.

[biotechsolution]

Are you sure you can strip the 2nd. If your goal is to 'strip' the 2nd lien, meaning making unsecured you are asking for a 'discharge'.

You aren't elgible for a discharge of debt in a Chapter 13 within 4 years of your Chapter 7 discharge. (This was a change in the 2005 bankruptcy reform laws that passed).within 4 years of the filing of the new case. Nor can the debtor receive a discharge in a chapter 13 case, if it is filed within 2 years of the filing of a previous chapter 13 case.15

If you are trying to 'strip' the 2nd, you are not in a 100% payback.
The only way you would be in a 100% payback is if you were paying the 2nd mortgage in your plan at 100%.


Have you filed your motion with the judge to strip the 2nd mortgage?

[jessegirl]

Are you sure you can strip the 2nd. If your goal is to 'strip' the 2nd lien, meaning making unsecured you are asking for a 'discharge'.

You aren't elgible for a discharge of debt in a Chapter 13 within 4 years of your Chapter 7 discharge. (This was a change in the 2005 bankruptcy reform laws that passed).within 4 years of the filing of the new case. Nor can the debtor receive a discharge in a chapter 13 case, if it is filed within 2 years of the filing of a previous chapter 13 case.15

If you are trying to 'strip' the 2nd, you are not in a 100% payback.
The only way you would be in a 100% payback is if you were paying the 2nd mortgage in your plan at 100%.


Have you filed your motion with the judge to strip the 2nd mortgage?

I am in a 100% payback. I am able to strip the lien the trustee told me I could and knew thats what we are trying to do.Also, the 2nd mortgage became unsecured when I did my chapter 7. We are jsut stripping the lien.
I don't know if he (attorney) filed the motion...I know that sounds dumb. But, when do they file the motion. I just had my 341 and the trustee said in the meeting that the only thing here you are doing is stripping the lien? I said yes and he says ok. Just make sure you continue to pay your first mortgage on time and keep up with the plan and said goodluck. My attorney says he does this quite often.

I am not going to get a discharge in the 13. I have no other creditors in my 13 except for my 1st mortgage. When does the lien get stripped? Once the plan is confirmed? or when I am done making the payments on my 1st mortgage arrears?

Thanks

[biotechsolution]

[jessegirl]

I am sooo damn confused over this whole thing. When we filed our chapter 7 the 2nd mortgage was in the BK. When it discharged and closed the attorney told us that the obligation to pay it was discharged but that the lien stays on the house. He said to strip it we had to do a chapter 13, but that we would not be getting a discharge because we have nothing to discharg. Everything we had was discharged in the 7. He told us that we would pay back the arrears from the 1st mortgage and while doing that he would strip the lien.I told him that everyone says on the forum that you cannot do that and he says he does it all the time....What the hell do I do? Is there any way to check pacer to see if its being done? Does it matter what state you live it?

ANY THERE ANYONE OUT THERE DOING THE SAME THING I AM??? Am i jsut throwing my 4000.00 dollars away by doing this? I am ready to dig a hole and climb in it.

Wouldn't the trustee tell us weather or not we can do this? When we were in the meeting (341) we spoke about this to him and he seemed to think it was fine. He said I know thats what you are doing in the 13... What should I do? I can i find out for sure that this can defiantely be done...R U positive that this cannot be done or does it vary from state to state?

Can you please tell me when EXACTLY the attorney files for removal of the lien? Is it right after 341, once its confirmed or what?

Thanks

[becky20]

I thought the lein wasn't stripped until discharge - so if someone files a ch 13 and does a lien strip in a 5 year plan and it dismisses after 4 years, the lein isn't stripped. I would guess the intent to strip the lein would be filed immediately after filing but the strip wouldn't happen til discharge - which is why it sounds strange that you could do this, since filing right after the 7 means you can't get a discharge.

[jessegirl]

I don't understand this whole thing. My husband said that they are going to make the 2nd mortgage unsecured in the 13. We filed for a chapter 7 and put the 2nd mortgage in that. Does this make sense? So in the end we will not have to pay back the second and will have no lien. I am so confused...

[HHM]

Hate to burst the bubble, the courts are nearly unified on the fact that you CANNOT strip a second mortgage in a non-dischargeable chapter 13.

Nothing wrong with curing the arrears, but the lien strip is a non-starter.

[jessegirl]

Hate to burst the bubble, the courts are nearly unified on the fact that you CANNOT strip a second mortgage in a non-dischargeable chapter 13.

Nothing wrong with curing the arrears, but the lien strip is a non-starter.

I am going to be pissed off if he cannot do this. I paid almost 4000.00. Because he told me that he does this all the time and that he can defianetly strip it...The 4000.00 could of caught me up with the arrears. I didn't need to go in arrears for him to strip the lien. What do I do, if he charged me and ask he can defiantwly strip the lien? Any recourse? I told him that if he cannot strip the lien that I would NOT go into a 13...He said he does it all the time...
Now what HHM???

[jessegirl]

Ok I did some research and this is what my attorney is trying to do:

This is saying that it CAN be done. Atleast this is the way I am understanding it. Just got off the phone and she says that: She included my 2nd mortgage in my chapter 7, which it was secured at the time. She is now trying to get that 2nd mortgage unsecured so that i could be inlcuded in the chapter 7 discharge. I am now in a chapter 13 to do this:

You Can Modify Or Lien Strip Your Wholly Unsecured Second Mortgage In Chapter 13 Under The Current Law
Posted by Scott Lanin on March 14, 2009
Filed Under Chapter 13 Bankruptcy, Solutions, Strategies & Alternatives

There is a powerful tool in Chapter 13 that is not widely reported. A second mortgage that is completely unsecured can be stripped in Chapter 13 and, in some cases, paid pennies on the dollar, while the homeowner keeps the home!
For example, if your home is worth $500,000 and your fiirst mortgage payoff balance is $525,000, you have no equity. If you have a second mortgage loan balance of $50,000, this second loan is a wholly unsecured mortgage. You can commence proceedings within a Chapter 13 case to strip or remove the lien. If, however, the home is worth $530,000 in this scenario, you cannot strip off the second lien because it is merely undersecured, not wholly unsecured. In other words, if the second lien is partially secured you cannot remove it. The current law (Bankruptcy Code 1322) also prohibits modification or stipping of first mortgages on residential property.

This may help homeowners with 80/20 loans or HELOCs where the 2d lien is completely underwater. If such a lien is stripped, it can be treated as an unsecured debt in the plan and paid a fraction over 5 years, just like credit cards. The actual percentage paid will depend on several factors, including the value of unencumbered assets and disposable income. It is best to have an experienced bankruptcy attorney handle this.


***Please if this does not sound right or my attorney is blowing smoke up my BUT(SORRY) please let me know, in a nice way....Reason i have an attorney obviously because I do not know anything about this and I am trusting her to do what she says can be done. If you say it cannot please voice your opinion to me. I am driving my hubby crazy and he is freaking out on me..I am so confused, upset and literally having this consume me..

Thanks

[forgotten]

Ok I did some research and this is what my attorney is trying to do:

This is saying that it CAN be done. Atleast this is the way I am understanding it. Just got off the phone and she says that: She included my 2nd mortgage in my chapter 7, which it was secured at the time. She is now trying to get that 2nd mortgage unsecured so that i could be inlcuded in the chapter 7 discharge. I am now in a chapter 13 to do this:

Your chapter 7 discharge has already happened and it only applied to unsecured debts. In your 13 case the 2nd does not become unsecured until you receive a discharge in your chapter 13 case, which you are not eligible for.

Well... the standard order I have seen for the lien strip does not release the lien until the discharge of the chapter 13 plan. I suppose if your judge would sign an order that does not have the discharge requirement it would strip... provided the lendor does not try and object.

Edit: But then again, since your 7 discharge did not discharge the loan because it was secured at the time and you can't get a 13 discharge even if the lien were to be stripped you would still owe the balance as an unsecured debt. Either way, it just doesn't seem like it is going to work out.

[walkthaplank]

Actually personal responsibility for the debt was discharged in the CH7. Reading my lien strip order, it mentions nothing about discharge, but merely states that "the junior lien-holder will remain of record until the plan is completed. "

As to the trustee not caring one way or the other, the trustee will object to any plan that is not feasible. If it is not feasible on its face (requiring a discharge that you cannot obtain), they would have to object to the plan.

I guess you'll find out when it goes before a judge for confirmation. If the the creditor does not object (really likely, there is no percentage in it for them to waste the money), the trustee does not object and the judge confirms the plan with the strip then why wouldn't it work?

The question I would ask Jessegirl, did you try to buy out the lien prior to filing CH13? You probably could have done that for about what you are going to spend during the life of CH13 with legal fees. When faced with the fact that your responsibility for the debt was discharged and they have a lien they can't foreclose on, I could see you being able to buy it out pretty inexpensively.