lien strip, how is it done?

[momofthree]

Okay, a comment in a different post made me stop and wonder.

I stated that we're doing a lien strip, but I didn't think my attorney had filed a motion yet because I haven't seen it on pacer.

I was then told that normally that motion/AP has to be filed prior to confirmation, but I'm already confirmed.

Where on Pacer would the motion show up? It doesn't appear to be anywhere on my case--which I've been watching closely. Even my motion from last month to sell my truck and the consequent approval shows, so it's definitely updating.

When we filed, the attorney stated that lately none of the 2nd mortgages have been contesting the strips and they've just been sliding on through without any issues.

On my plan, it simply states:
Attachment A
"7.02 The debtor will file a motion to value the second trust deed of (bank name) on the debtor's residence at a value of $0."

And in the plan it is listed as a "class 7: general unsecured claim"

At the 341, the trustee asked if we were stripping a 2nd, and my attorney replied "yes."

I'm sending in an email to my attorney right now, but, of course, it's the weekend so I won't hear back for several days and I'm beginning to freak out a little bit. I asked this question here on the forum at the very beginning of my case and was told it's normal for it to take a year or more to show up.

The lien strip is the ONLY reason we filed ch.13....

[justbroke]

A lien strip is done by motion (contested matter) or by complaint (adversary proceeding/AP). I would just gently nudge your attorney and ask when he's going to file the motion to strip the lien.

Since you're already confirmed and filed over 5 months ago, I would think the lien strip would be done already.

[momofthree]

Is there a time limit that it HAS to be done by? In other words, we're not at risk of having to dismiss and re-file in order to get the lien stripped, right?

[Pandora]

our trustee asked when we went to our 341 if we were planning on stripping the 2nd - to which attorney replied Yes (like you its the only reason we filed) - but the AP hadnt been filed prior to our 341 so the trustee stated that had to be done before he could approve the plan. So - the AP was filed separately and treated as an addition to the BK filing, but they're in tangent to each other.

We were told by our trustee (we're in VA) that the AP had to be filed within 14 - 21 days of our 341 from what I can recall. I dont know what would have happened if the deadline was missed. It does show up on PACER as a separate filing (court doc) since its an AP, but its filed with our case number for BK. On 13 Data Center as "Lien Avoided" and on PACER as an AP suit/complaint/contest.

[momofthree]

Hmmmm....trustee didn't say anything about it at our 341 except asking if we were stripping. 13datacenter still shows it as secured, but again, I was told that it's pretty normal for the website to be inaccurate.

I always search by social on Pacer, and I clicked on related cases and it said there were none. I'll do a search by the case # and see if anything comes up.

[Pandora]

Momof3

Ours is still showing as a secured creditor on both PACER and 13DataCenter as well, even though the AP is showing and on 13Data is states "lien avoided". I asked our attorney why is it showing as secured and he said until the AP is resolved and approved, it will continue to show as secured - then it will convert to unsecured once we are confirmed.

Keeping my fingers crossed that yours is indeed stripped and the motions were filed. I'm so sorry that I freaked you out - I feel awful now lets hope it was all done since you were confirmed.

[momofthree]

Well, I searched under our case # and nothing else came up. I really don't think it's been filed yet. I sent an email to the attorney, and his office is really good at getting back to me the same day I email, so I should hear back on Monday.

I decided I'm not going to freak out. We're WAY under median (by $20k+), and all we're paying into our plan is our car, so even if we did have to dismiss and re-file, we should be able to keep everything the same--possibly even the same term (55 mos left)--since we are really only required to do 36 months. It's not like our money was wasted--it went towards our car payment. Nothing has changed, except a DECREASE in income, lol. I'd hate to have to go thru all the paperwork all over again, but it wouldn't be the end of the world, so I'll just chill until Monday.

I'm GLAD you pointed it out, Pandora! Thank you!

[HHM]

Regardless of "how" it is done, it doesn't become effective until you receive your discharge at the END of your chapter 13 plan.

[momofthree]

Regardless of "how" it is done, it doesn't become effective until you receive your discharge at the END of your chapter 13 plan.

Right, that part I got. But I would be seriously pissed if I completed all of my payments only to find out that the lien strip was never done, because the ONLY reason we filed ch.13 was for the strip....

[Pandora]

Momof3

Have you found anything online as to if your plan can be amended to include the strip if the paperwork wasnt done? I've been looking for you but I cant seem to get anywhere, must not be wording it correctly or something. Like you, we know that it doesnt get stripped officially until discharge but....I wonder if the entire thing can be amended. ?

HHM - do you know if it can be amended after you've been confirmed in the same way that you can amend your plan if your income drops or increases?

[momofthree]

I'm not going to worry about it until I speak to my attorney. He specializes in ch.13 cases and he's been a bk attorney for nearly 30 years. If it didn't get done when it was supposed to, he'll know how to fix it...

[justbroke]

HHM - do you know if it can be amended after you've been confirmed in the same way that you can amend your plan if your income drops or increases?

From my personal experience on doing one, the Court usually likes all things to be resolved before confirmation. In this case, they may continue your confirmation hearing until the complaint to determine secured status and avoid lien is fully adjudicated.

The main thing in a "lien strip" complaint or contested matter, is that your valuation of the property was done closely to the time of your petition being filed. It appears that you filed your AP at the same time as your case was filed.

[Pandora]

thanks justbroke - appreciate the answer


Momof3 - any word from your attorney?

[momofthree]

Paralegal emailed me this morning and said that the motion was never filed and she would bring it to my attorneys attention today. Haven't heard back yet...will keep you guys posted!

[Pandora]

fingers, legs, eyes and toes crossed that everything works out like it should!