AZ. how to respond motion lift the stay, 2nd mortgage pro se chapter 13

[powerless]

We filed pro se about 9 months ago in Arizona. Still unconfirmed. Current with first mortgage and trustee payments. 4 mos in arrears since filing with second mortgage. There is equity in the house. First mortgage had foreclosure auction scheduled -- which is why we filed chapter 13. Auction keeps getting postponed.

Got a motion to lift the stay from 2nd mortgage. We would like to object but not sure how to do it or what reasoning to use. 4 mos arrears is about $1,000. Arrears included in chapter 13 is about $2100.

What happens if we don't respond and the stay is lifted?

Anyone have a template we could use to object to the motion or a case number of name we could look up on pacer and use as a template.

Thanks

[LadyInTheRed]

I can't help with how to respond. But, if the stay is lifted, the foreclosure can move forward.

Providing some additional information/clarrification may help others advise you.

Does your plan provide that you will keep the house and pay pre-petition arrears in the plan?
By "4 mos in arrears since filing with second mortgage", do you mean you have not been making payments on the 2nd mortgage since you filed?
Does your plan provide that the post-petition 2nd mortgage payments will be paid through the plan?

[powerless]

I can't help with how to respond. But, if the stay is lifted, the foreclosure can move forward. The motion is from the second mortgage and specifies it only applies to them. Wouldn't the first mortgage company have to motion to lift the stay to move the foreclosure forward?

Does your plan provide that you will keep the house and pay pre-petition arrears in the plan? Yes it does, for both the first and second mortgage.

By "4 mos in arrears since filing with second mortgage", do you mean you have not been making payments on the 2nd mortgage since you filed? No. we made 4 payments on the second mortgage on time, but have missed the last four payments.

Does your plan provide that the post-petition 2nd mortgage payments will be paid through the plan? No. the post petition 1st and 2nd mortgage are paid outside the plan directly by us.

[justbroke]

If you have been missing payments, then you have a serious issue to overcome. You also have equity, so the second lender does not need the remove the stay for the first lender. When the second lender files the foreclosure lawsuit, that is when they would notify the first lender (serve the foreclosure on them).

When in a Chapter 13, you must stay on plan. You can not fall behind in payments to a single secured creditor. I am assuming that you are paying outside the plan? What you "could" do, is modify your plan (this isn't technically a modification but a change of your pre-confirmed plan), to include the arrears. Typically, the Trustee likes to see "post petition" arrears satisfied in 6-12 months. You could propose 12 months and see what happens. Also, you may need to have that 2nd lienholder paid through the Trustee to make sure that you are paying on time.

So, the only way you could object or be in opposition, is if you have some plan to bring the claim current. You would take your existing plan and add a "post-petition" arrears category and add how much you will pay to bring current. Again, I would move the second into the plan (which will cost you 10% over the amount)... or at least the arrears... into the plan.

I would tell you to start working on a new plan which includes the post-petition arrears. Try to get them cured in 6-12 months. You could look in PACER or just Google for "Arizona Bankruptcy Opposition to Motion for Relief from the Automatic Stay" (or similar words). Remember, in an opposition you must state a legal basis for why the Motion should not be granted. To do that, in your case, you would need to show that the post-petition arrears are now provided for in the plan. You would need to contemporaneously submit your new proposed plan and[ the Motion at the same time. You would need to pay the next "post-petition" arrears payments on-time. Short of that... the judge will grant the motion and a foreclosure is highly likely.

[despritfreya]

Simple solution, done all the time. File a response that admits the post petition default and states you wish to enter into a catch up arrangement with the creditor - assuming you can afford it. Most, if not all, mortgage lenders will allow you to stipulate as follows:

1. Resume regular monthly payments say as of July, 2013;
2. Submit an additional payment of $x each month for six months to bring the post petition payments, late fees and attny fees current through June, 2013.

The stipulation will also include what is called a “drop dead” provision. It basically states that if you fail to make the required payment the lender will send you a notice of default. You have something like 15 days from the date of the notice to make the payment. If you don’t the deal is off and the stay is lifted. Please note, if your judge is EWH, she has her own procedures for such a stipulation and the “drop dead” provision is not allowed. Her procedures can be found at:

http://www.azb.uscourts.gov/default.aspx?PID=66

very bottom of the page.

Now, if the second gets the stay lifted that does not lift the stay for the first.

The form of the Response is not important but it must have your name and case number on it and clearly state "Response to Motion for Releif From the Automatic Stay". It needs to be filed with the court within 14 days of the date of the Motion and a copy must be sent to the creditor's attorney.

Des.

[justbroke]

Des, thanks for spelling out the procedure for AZ. I hope that helps this Pro Se filer! (I wish we had a similar process in our District. I is typically a one-off decision for each time this happens in our Florida District.) I must say that AZ is much more organized!

[powerless]

Des. Thank you. I am so tired and a bit worn down. Thank you again. I think I can do this. Does the 14 days start from the day I received the notice in our mail box or the day it was filed with the court or the day I received it by mail?

[justbroke]

It's the date on the notice (the service date).

[powerless]

Does it make a difference that the proof of claim form requires a schedule of principal, interest and legal fees and documentation, such as a copy of the note, which the 2nd mortgage company did not provide? They only filled out the proof of claim form. The original lender was taken over by the current mortgage company. A copy of the note was attached to the motion to lift the stay.

[justbroke]

Does it make a difference that the proof of claim form requires a schedule of principal, interest and legal fees and documentation, such as a copy of the note, which the 2nd mortgage company did not provide? They only filled out the proof of claim form. The original lender was taken over by the current mortgage company. A copy of the note was attached to the motion to lift the stay.

They typically just complete form B10 (the claim form). However, there were changed in how Secured creditors were to file B10s when there is a mortgage. If you believed that their claim was invalid, then you would object to the claim when they filed the claim. The creditor could be subjected to sanctions. Whether that would do anything to stop an RFS motion is entirely another matter. If they filed (a copy of) the mortgage and Note with the RFS, then you should inspect the documentation to be sure that they are in compliance (have standing, etc.).

If you are not trying to just perform legal maneuvers to frustrate them, just do as Des wrote above. You could also object to the Claim, separately, to force them to submit the proper documentation for a mortgage claim.

[despritfreya]

If, for some reason, you believe the lender does not have standing to file the Motion for Relief (some, what I call, "show me the note" theory) you will want to raise it in the Response.- personally the argument is a loser but if you do not raise it you will waive the "defense".

If your judge was CGC and is now DPC see Item 7 at the below link:

http://www.azb.uscourts.gov/default.aspx?PID=64#7.1

Be warned however, unless your Judge is SSC, you won't get very far with that argument and once all of the proper documents are submitted, unless you bring the account current (or enter into a stipulation to become current) the stay will be lifted.

Des.

[powerless]

Thank you. I'm not trying to do any maneuvering.

[powerless]

I've got our objection to the motion to lift the stay completed. I'm filing it with the court tomorrow. The drop dead date is Thursday. How do I serve it on the attorney? Rule 7004 says it can be sent by regular prepaid us postage by a party not involved in the action over the age of 18. I have no one to do that for me.

[despritfreya]

Service is very simple in bk court. Regular mail to the creditor's attny. At the bottom of your response, after your signature, add the following (of course, use the attny's real name and address):

Copy of the foregoing mailed this ___ day of ___, 2013 to:

Jane Does, Esq.
DO WE CHEATEM & HOW PC
111 any street
Some city, Some State, Some zip

By __________________________
sign your name on the line.

Des.

[powerless]

Thank you. Thank you. Thank you.

Maybe not so powerless because of Des.