notice of motion for relief from stay

[worried]

Hi all...

I got the notice for relief from the mortgage company for $9800.00. I would like to know what my options are? I am currently in a 55 month plan and am at 47 months right now. I owe only 1600.00 in the plan. Is it possible to amend the plan to include the arrears and have the plan payments increased from 622 a month to roughly 900 a month spread over 13 months if it were increased to 60 months. I plan to either get a second job and my daughter lives with me and she is willing to help out. I really don't want to surrender the house at this point in time. Would the trustee approve this? I also have another question about tax refunds. I was supposed to get 1728 this year but IRS kept all but 154 for delinquent taxes that were put in the plan. They told me they can collect all fees, penalties and interest while I'm in a chapter 13. I thought they couldn't collect while still in the plan? Thanks for all your help.

[justbroke]

I got the notice for relief from the mortgage company for $9800.00. I would like to know what my options are? I am currently in a 55 month plan and am at 47 months right now. I owe only 1600.00 in the plan. Is it possible to amend the plan to include the arrears and have the plan payments increased from 622 a month to roughly 900 a month spread over 13 months if it were increased to 60 months. I plan to either get a second job and my daughter lives with me and she is willing to help out. I really don't want to surrender the house at this point in time. Would the trustee approve this?

First, you went into arrears during an active Chapter 13? That may make it more difficult to deal with. The Trustee is not the one to approve this, it is the court. You'd file a Motion to Modify Confirmed Plan and you'd have, in that plan, a plan to cure the arrears. From what I have seen with Trustees, they don't like post-petition arrears to be cured outside about 6-12 months. You would need to extend your plan from 55 months to 60 months.

That means 12 months to clear the arrears or about $817 MORE a month for the next 12 months. What's worse, the Plan Modification would probably take 30-60 days anyhow. I don't know how you came up with your plan going form $622/month to $900/month. It would be going from $622/month to $1439/month for 12 months and then back to $622 for the last month (if $622 is your monthly payment to and through the Trustee). That's a significant gap.

You are also at risk of having your entire case dismissed. In any event, your plan needs to be modified to deal with this.

I also have another question about tax refunds. I was supposed to get 1728 this year but IRS kept all but 154 for delinquent taxes that were put in the plan. They told me they can collect all fees, penalties and interest while I'm in a chapter 13. I thought they couldn't collect while still in the plan? Thanks for all your help.

They can offset but they need to get a relief form stay motion. UNLESS you fell behind "post-petition" and they are offsetting post-petition arrears with post-petition refunds. The IRS is very good -- in the overwhelming majority of cases -- not to violate the stay. I'm thinking that you may have underpaid one of the post-petition years and the IRS is using the NORMAL and appropriate right of setoff for that post-petition underpayment.

[worried]

i owe 1600 in the plan and 9800 arrears added together is 11400. I would only expect to pay 950/mo for 12 months.

[worried]

can I file another chapter 13?

[andy158]

Just curious. How did you end up with a 55 month plan?

[worried]

mortgage arrears

[justbroke]

i owe 1600 in the plan and 9800 arrears added together is 11400. I would only expect to pay 950/mo for 12 months.

Are you telling me that the ONLY thing in your plan is the Mortgage Arrears and that your ONLY payment to the Trustee was to finish the $1,600? Did you not have any disposable monthly income (DMI) being contributed as well? Did you know that the Trustee percentage would increase too? For the Trustee you would need to add another ~$30 to that monthly amount? Now you're ~$980/month for 12 months (if there is nothing else being paid in the plan and there is no DMI requirement).

Anyhow, the math is just not working for me. If you "only" have $1,600 left in the plan (for everything) and you're paying $622/month now, you would be done in less than 3 months... not 8. So that's why the numbers just don't work for me.

In any event, I would seriously be considering whether you can really afford this home. If you filed 4 years ago to save the home due to arrears, and are now back right where you started, that's not a good thing. I hope that you have some equity in the property and that your Chapter 13 doesn't end up being for naught.

[worried]

well to make a long story short about 2 years ago i was 2000 in arrears and was able to put this in the plan plus half of my attorney fees. But shortly before that I noticed my account showed that I owed about 4000 more than what I was supposed to pay in. It didn't add up and I told my attorney about it and he said it was an entry error. But he said there was a cushion there also in case I needed it. Anyways they said they fixed it but it still shows there is 6000 to be paid yet but it doesn't add up to the 1600 left to pay the mortgage. It says on the trustee website that 1600 is the balance for the mortgage yet. So if I do the math according to their website it shows I only owe the 1600. I think the cushion he's talking about is the 5 months (50 to 55 months). I did try to sell my house back in 2007 but nobody was buying and then I took it off the market and filed bankruptcy day before the scheduled sale. This was the second time I filed bankruptcy on this mortgage company (USDA Rural Housing). I have tried to get a loan modification twice and was denied. I also tried to get money from foreclosure prevention place in my county but was denied that too because I was in a chapter 13 and also I was not immediately being foreclosed on and this was money from the federal government.

[worried]

I found out today that I do have a cushion of about 6000.00 reserved for attorney fees, etc. I am waiting to hear if my mortgage company will agree to an amended plan. I only have 13 months left. I'm waiting patiently to find out. My lawyer is contacting their lawyer today. Do you think that they will agree. Why would they want to lose money? I would like to keep the house and finish the plan. My lawyer asked if I wanted to keep the house or that I could file a Chapter 7.

[justbroke]

They will usually agree because your other choice is to dump it before the end of the Chapter 13 and discharge the debt!

[worried]

I looked up my court records because I have not heard from my attorney since he submitted an answer to the courts on March 14. Does anyone know what the following means? It goes in descending date order. I have not gotten any mailings yet. Does it mean the courts did not approve my mortgage's relief from stay request? Thanks much everyone.

03-20-2012

Affidavit of mailing


2

03-20-2012

Discharge of lis pendens


3

03-20-2012

Vacate judgment


4

03-20-2012

Motion


Additional Text:

and Order to Vacate Judgment of Foreclosure and Discharge Lis Pendens

[justbroke]

It means the foreclosure case was dropped and the lis pendens (notice of pending lawsuit) was "released" from the public record. It looks like you are taking this information from the Local (County) Court website (Public Records). This is not the PACER record concerning the stay relief request. They are two different things.

It may be that the lender dropped the "old" foreclosure lawsuit. I don't have time to look at this more thoroughly, but something is strange. You're in an active Chapter 13, then how did they get a foreclosure judgment so quickly and without having relief from the automatic stay? That reads like a MAJOR stay violation -- although they took corrective actino by vacating the judgment of foreclosure.

[worried]

I filed chapter 13 in 2008 before the sheriffs sale. In my attorney's answer he said I could make up the arrears and that the mortgage was inequitable. I'm thinking it was dropped for now. I only have a year to go. I can't access Pacer.

[worried]

Well i got my answer today. The motion for relief is only delayed until May 9. My lawyer says my mortgage company wants a lump sum because they will not accept that my arrears be put into the plan which is only a another year away from being finished. My question is how does the mortgage know what i plan to do. Why is it their decision to accept the plan. And how do they know if I plan for a second job. I didn't know they could decide this since I'm protected by the court. I don't know how I will come up with a lump sum. I owe around 11,000 now. My second mortgage is much lower but they offer loan modifications in a chapter 13 through freddie mac but I don't know if they would add in the arrears. I don't know if I should walk away from this mess, file a chapter 7 or what. I am going to lose all my equity. Any suggestions. Thanks so much.

[SMinGA2]

No legal info for you, but just my own logic.

The ch. 13 protects you regarding any arrears you owed before filing your case. It also assumes you will make post-petition mortgage payments on time.

The open 13 does not protect you from falling behind after your file date. From what you posted in this thread, you fell behind once before after filing your case and the plan was amended. Now you've fallen behind on your mortgage again, and the lender is out of patience.