We purchased our home in 2005, we still owed the seller $7,000..when we filed in 2007, we included this in our Ch 13...since the seller did not file the deed ( 2nd mortage) with the courthouse, there was not a record that it was a second mortage..Therefore, trustee treated it like a personal loan...and did not pay seller anything. Seller was sent paperwork from the court stating that they needed proof it was a second mortage, seller did not provide paperwork. Well, lo and behold..seller ( after 8 years and out BK is discharged) has decided now they have the second mortage...and they want their money!! They actually took the deed to the courthouse last week...Contacted the BK attorney and they said that this is a big mess and they will see what they can do..attorney did state that seller ( 2nd mortage holder) can now foreclose on this property for the $7,000 owed!!! But seller would have to pay off first mortage ( $ 65,000).... Really??? Or we could always file another 13...which we do not want to do...we just came out of a 13 in August....that was the longest 5 years.... and we are not wanting to go through that again!! Is there not a statue of limitations on filing a deed?? Why did these people wait 8 years?? We are worried sick over this..and not sure what to do..any ideas?? Thanks!!
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Thats cRaZy! Seems like they had there chance, didnt make a claim and now it should be too bad for them! Why didnt your atty warn you when they didnt file? I need to see who claimed what for my case now!Discharge date: October 2017 (will it ever get here?)
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We did question attorney..he said he sent letters when we first started the BK and toward the end...if they had any objections they were to notify the trustee...they didn't....im my opinion..they are S.O.L...but cant find any where on line where there is a statue of limitations on filing a second mortage with the courthouse...I am a nervous wreck!! Every car that drives slowly by the house..I panic and wonder " Is that them?? Are they gonna show up and cause a scene?".."Am I gonna leave the house and come home and they have put a lock on the door?"....We are finally getting straightened up financially....now this happens....Attorney says give them a few days to see what they can do..attorney is sending the seller a letter today..I hope he can get this mess straightened out...Comment
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Call another atty and just see if they can answer the question over the phone, some might be nice enough to do that! I am sorry that you are scared! To complete it sucessfully and then to desl with this! I just dont see how they can do it! Before u panick wait for LITR and the other mids to respond!! Breathe!!Discharge date: October 2017 (will it ever get here?)Comment
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If you acknowledge that you owe them the debt, then why not try to make good on it. It is a secured debt that they provided you in good faith. They aren't some blood sucking debt collector from a payday loan, are they?Comment
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As the law office secretary told me this morning " Legally it is a secured debt now...but 5 years ago when they checked into it, it was, but yet it wasn't"... I know, doesn't make a whole lot of sense....We do plan on making good on it...just waiting to see what and how the lawyer advises ...They would have had their money by now, if they had filed the paperwork ( like they were advised to do 3 times within the past 5 years)....why did they wait?? My guess is they waited because they thought that since we are out of BK....they could get all $7,000 at one time...which is not gonna happen...guess they will take payments.. Just hoping these people don't show up at my door...Originally posted by toojerm View PostComment
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I dont think they will show up at the door! I still dont get how if you list them as a creditor, include them in the bk, give them time to respond, all that and they still can claim when its all over? Just weird! Like why bother with bk kaw if they can do that? I agree with you, something is not right!Discharge date: October 2017 (will it ever get here?)Comment
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Law not kaw. Iphone fingers!Discharge date: October 2017 (will it ever get here?)Comment
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If the loan is included in your bankruptcy and they didn't file a claim, they're out of luck. It sounds to me like they held on to the deed until they knew you were done with your bankruptcy, then recorded it. I'm pretty sure that's a no-no. I don't think it matters whether it was a secured or unsecured debt...they didn't make a claim, period.
You should talk to a different attorney that can actually advocate for you.Comment
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If I have an opportunity I will do some research on this. The issue is whether or not the recording of the mortgage/deed of trust post petition/post discharge is a violation of the discharge injunction and is, therefore void and subject to being set aside. My gut tells me it is (you snooze you lose) but I have never had to deal with this issue as it relates to a later recording of the lien. Your attny should be researching this if he/she does not know the answer.
If you cannot work it out with this creditor you may need to go back into the bk court and get a declaratory judgment as to the status of such a recording if research does not give a definitive answer. If there is a violation of the discharge you would seek some sort of Order voiding the recording of the lien and holding the creditor in contempt.
Des.Comment
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Sheece!!!!! Makes me want to do some research on my lien strip that BofA did not show up to make a claim on. HMMMM.11/23/'10-filed ch 13. 1/6/'11-341, confirmed. Below median. Plan completed 11/30/2015. DISSCHARGED 4/4/2016.JPComment
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Lien strips are done separately in Cali. My atty had to do a Lam motion at a hearing. There is no way that puppy can come back to bite, unless I don't succeed. I don't think she stripped. :-(Discharge date: October 2017 (will it ever get here?)Comment
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OP is not dealing with a lien strip issue. The lien was not properly recorded pre petition. As a result, the creditor was treated as an unsecured creditor in the bk. The creditor recorded the lien after the entry of the discharge. The act of recording a lien that covers a discharged debt is probably a violation of the discharge injunction.Originally posted by spidge View Post
Des.Comment
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Heard from attorney on this matter... attorney states that seller has violated BK rules...since seller was included in the ch 13, and refused to file the correct paperwork..then the seller has no legal right to collect on this debt .....debt was discharged!! Thank Goodness!! Not sure if seller will try to fight it or not.... and we have actually seen the seller ( before the letter from attorney was received) drive by here ....really surprised he didn't pull in and try to start a fight....and he still may...even tho the letter states for him to cease all harassment. Breathing a small sigh of relief....just waiting on him to release the lien....
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Just a general question that hopefully Des or another attorney can answer but, wouldn't this violate the UCC. I know some states have there own version but in general isn't there a short time limit {15 days?} for a lender to file the necessary documents to perfect their lein?
Glad things are working out for you.Comment
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