Most Complicated 13 Ever...Need Help Please

[bshaw96]

Filed Chapter 13 in 2008. We inlcuded (we thought) 1st mortgage arrears, 2nd mortgage heloc in its entirety, 2 cars, and taxes. About a year ago, 2 years into the plan, due to change in income, fell behind on mortgage payments outside the plan. We were unable to maintain the consent order that kept the stay from being lifted on the house, and the automatic stay was lifted from the house only. We entered into a forebearance agreement with them to keep the home out of foreclosure. We have made 4 out of 16 forebearance payments but it is wiping us out financially. We simply cant maintain them and the 1000 trustee payment. We surrendered 1 of our cars to make the plan more affordable and are now a 1 car family. Now, to make things worse, we got a letter from our lender demanding the 27000 due for the heloc. We hoped they wouldn't mess with this for awhile when we were in better standing and could pay it or negotiate a settlement. We wouldnt save anything surrendering the house because it would cost more to rent. Our income has greatly increased and we are in a position to pay a 13 plan and our regular house payment, but have nothing to apply to the 27000 demand. Anyway....here is my question. We do not qualify for 7. What we want to do is allow our case to be dismissed (for non payment, not voluntarily) and refile. We know we'd have to request the stay be extended, and our only worry is the stay not going back into effect on the house. 2 questions.
1) Would a new filing put the stay back on the house?
2) Would we need to wait 6 months? If we have to we can, but obviously dont want to if we dont have to.
Thanks for your help. As said previously, our lawyer is useless. In fact, as I was researching these answers, he sent a request to the trustee to give him an additional 1000 in the plan for all his "extra work". He had to help us surrender our vehicle and respond to motion to lift stay. Grrrrr. But anyway, needless to say, we need answers, and no other lawyer will talk to us until our plan has been dismissed.

[newbie2]

Filed Chapter 13 in 2008. We inlcuded (we thought) 1st mortgage arrears, 2nd mortgage heloc in its entirety, 2 cars, and taxes. About a year ago, 2 years into the plan, due to change in income, fell behind on mortgage payments outside the plan. We were unable to maintain the consent order that kept the stay from being lifted on the house, and the automatic stay was lifted from the house only. We entered into a forebearance agreement with them to keep the home out of foreclosure. We have made 4 out of 16 forebearance payments but it is wiping us out financially. We simply cant maintain them and the 1000 trustee payment. We surrendered 1 of our cars to make the plan more affordable and are now a 1 car family. Now, to make things worse, we got a letter from our lender demanding the 27000 due for the heloc. We hoped they wouldn't mess with this for awhile when we were in better standing and could pay it or negotiate a settlement. We wouldnt save anything surrendering the house because it would cost more to rent. Our income has greatly increased and we are in a position to pay a 13 plan and our regular house payment, but have nothing to apply to the 27000 demand. Anyway....here is my question. We do not qualify for 7. What we want to do is allow our case to be dismissed (for non payment, not voluntarily) and refile. We know we'd have to request the stay be extended, and our only worry is the stay not going back into effect on the house. 2 questions.
1) Would a new filing put the stay back on the house?
2) Would we need to wait 6 months? If we have to we can, but obviously dont want to if we dont have to.
Thanks for your help. As said previously, our lawyer is useless. In fact, as I was researching these answers, he sent a request to the trustee to give him an additional 1000 in the plan for all his "extra work". He had to help us surrender our vehicle and respond to motion to lift stay. Grrrrr. But anyway, needless to say, we need answers, and no other lawyer will talk to us until our plan has been dismissed.

You've been at this for quite a while (the 13 plan and your inability to keep up with mortgage payments) and that is so stressful. You had a couple of good replies in your previous thread about this. You might have missed them: http://www.bkforum.com/showthread.ph...t-trust-lawyer

Your case isn't all that complicated. You had a plan worked out for you to keep your home, and you couldn't pay the mortgage payments. Now it is catch up time, or "give it up" time.

I don't know if the stay would go back again, but one thing jumped out at me: Your inability to pay on the 2nd mortgage. Even if you are able to have your current 13 dismissed and refile, those arrears have to be put into the new plan. You state that you can't rent for less money than your first and 2nd mortgage, but honestly if you cannot keep up with secured debts during a Chapter 13 then you have a bigger problem. Unless you can figure out a way to manage your money to include your mortgage payments then you need to find cheaper housing and let the house go. I know that is blunt..but right now you need blunt.

Edited to add: Your attorney adding fees for the extra work involved with your plan is completely normal. If you get out your agreement with him you will see exactly what services were included in your initial fee, and what would be added services. What you may want to do is this: Make an appointment to sit down with your attorney face to face. Phone calls at this point will do you no good. You need all your options laid out for you.

[bshaw96]

Its ok Blunt is fine. Our current house payment if we were current would be 750. The 2nd loan is charged off, so no arrears. They want it all. The way I see it if we refile and the stay goes back into effect, our plan pay would be around 900 including the 2nd mortgage put in the plan and our mortgage 750. So about 1650 together. Currently we have a 1000 trustee payment, 1300 mortgage because of forebearance, and they want 27000 for 2nd. Much worse scenario. The 1650 would be a piece of cake with the new jobs. The 2300 plus pay off the 2nd not so much. The cheapest decent rental in our area is1200, and we ARE NOT picky. That's just if u don't wanna get shot at

[newbie2]

If you an pull off having your current 13 dismissed, filing again to have a new stay put in to effect AND have that 2nd mortgage stripped..that would be ideal. I just don't know how that all is going to work when you are having trouble staying current on the first mortgage. Pick up the phone and make that appointment with your attorney. Hopefully face to face you both will be able to come up with a workable plan of action. Good luck to you.

Edited to add: You said 1650 per month would be workable with your new jobs. If that's the case, why not rent for that 1650 and just be done with all of this? No more forbearance plans, no more trying to keep your head above water in a Chapter 13..can you qualify for a Chapter 7?

[shark66]

I'm at a loss here...was your Heloc supposed to be stripped during the course of Ch. 13 or not? They really can't be demanding anything from you during an active BK case...

You can refile, but the lift of stay will remain...

Please clarify.

Good luck.

[bshaw96]

I'm at a loss here...was your Heloc supposed to be stripped during the course of Ch. 13 or not? They really can't be demanding anything from you during an active BK case...

You can refile, but the lift of stay will remain...

Please clarify.

Good luck.

When we originally filed, our lawyer told us the 2nd mortgage was added in the plan, not stripped, but in the plan to be paid over the 5 years. We assumed that is why our trustee payment was so high. Apparently the mortgage wasn't added, and our payment was high because we were having to pay 2 cars back with interest. Anyway, because we thought the 2nd mortgage was in the plan, we made no payments outside the plan. And no one ever contacted us so we had no idea there was an issue. In October of last year, we fell behind on our primary mortgage outside the plan. The stay was consequently lifted from the house. After that, we worked out a forebearance agreement to catch up the primary mortgage over the next year. (Arrears had been put in the plan when we initially filed and when the stay was lifted, they wanted the money to avoid beginning foreclosure on the primary loan). Well, we have been paying the forebearance payments, and the trustee payments, tough, but not impossible as I have a much better paying job. 2 weeks or so ago we get a letter from the lender of the 2nd mortgage. It had never been included in the plan at all, period, ever. We didn't hear from them because they charged us off. We havent made a payment since 2008 because we thought it was in the plan, what our lawyer told us. So....now they want 27000, the full amount, to avoid beginning foreclosure on the 2nd loan. We simply dont have that cash sitting around. We were hoping to get dismissed by the trustee, and refile, thus imposing the stay on the house again. Does this help? And why do you say the stay would still be lifted? It would be a new case. If need be, we can wait 6 months to refile. I feel certain we could hold them off that long. We just need the stay back on the house.


We do not qualify for 7, looked into that, make to much money.

[shark66]

Your attorney seems like a real piece of work, but you know that yourself at this point in the game...OMG I really feel bad for you...

The key question here is whether there's any equity in the house that the second mortgage holder could count on if they were to start FC proceedings. If there isn't, you may as well ignore them - at least in my opinion. If there is...you have a problem. That being said, they still have to pay out the first mortgage in full in order to get anything for themselves...which a FC sale may or may not bring.

Once the stay is lifted, it stays lifted regardless whether one refiles. This provision was put in place to keep people from re-filing over and over again with the idea of putting the FC off...

Now, if you were to get an arrangement with your primary mortgage lender, keep up with the payments and have the case dismissed, then refile to get the second stripped, you might get somewhere. This only holds water if:

a) Your primary mortgage holder is willing to work with you.

b) There's no equity in the house above what's owed on first, so the second can be stripped - which would also likely prevent the second lienholder from foreclosing on you while you're refiling....

Sounds more complicated than it really is, but you have to do your research and find out where you stand, and play from there...

Good luck.

[momofthree]

Couple thoughts, sorry if they're not too organized, just making some observations.

You originally filed in 2008. Home values have come down quite a bit since then. You may be able to strip the 2nd mortgage completely by re-filing.

You'd also get a break from trustee payments for a few months, which may help you get your 1st mortgage caught up. Any remaining arrears could then be included into the new plan payment.

Could you now cram down those cars if you dismissed and re-filed?

You say you make quite a bit more money than when you filed the first time. Are you certain that your trustee payment wouldn't increase? Have you filled out a new I & J to see what type of DMI you have?

Just random thoughts to think about...

[ValleYum]

Not a Chapter 13 person - but I would hope you would get a new attorney along with your new Chapter 13 filing...

I wish you the best of luck!!!