Received Motion for Relief From Stay

[BKinGA]

Hi Everyone...

I live in Georgia, and was laid off from my job in August, have not found work yet and have filed for Chapter 7. My BK hearing is January 13th.

Today I received in the mail a Motion for Relief From Stay from the attorneys of my mortgage company. That court date is set for January 20th. (I am not going to keep the house).

In the Motion it states that because there is little to no equity in the property they want the stay lifted.

I want to know if (1) will the judge agree to this and (2) is there is any way to delay the judges ruling or if not, (because I need to stay in the house as long as possible to save up money for a deposit) (3) how long I will have to stay in the house?

I know that typically in Georgia the lender has to advertise the foreclosure for 4 weeks in the paper and then sell it on the first Tuesday in the following month. But is that also true if the stay is lifted or does the process become accelerated?

Im hoping that even if the stay is lifted they would have to advertise in February and sell on the first Tuesday in March.

Any information that you have on this is appreciated. Thanks for your help.

[TEW]

The Judge is going to grant the relief I don't think you delay that.http://www.foreclosurelaw.org/Georgi...losure_Law.htm

here is info on Georgia Foreclosure

[justbroke]

First, a motion for relief from stay is hard to fight, especially if you're not paying on the property, and the property doesn't have any equity.

(1) will the judge agree to this

Yes... pretty easy to determine.

(2) is there is any way to delay the judges ruling or if not, (because I need to stay in the house as long as possible to save up money for a deposit)

You can get one continuance in order to have an "Evidentiary Hearing". Usually, the first hearing is non-evidentiary, meaning that it's only final if you don't show up or don't contest the relief requested.

(3) how long I will have to stay in the house?

Well, did the foreclosure start before you filed for Bankruptcy? Georgia is approximately 90 days to foreclose on a property. If you weren't already in foreclosure and had a power of sale judgment, then this will take all of the 90 days and then some.

I know that typically in Georgia the lender has to advertise the foreclosure for 4 weeks in the paper and then sell it on the first Tuesday in the following month. But is that also true if the stay is lifted or does the process become accelerated?

What will more than likely happen, is the lender will try to work with you on a forbearance, modification or other terms to get you back on track. Taking the house, these days, is the last thing they want to do, but they must take these steps just in case it doesn't work out.

Im hoping that even if the stay is lifted they would have to advertise in February and sell on the first Tuesday in March.

All depends on where you were in the process prior to filing. If you were up to date and no notice of default had been sent, then they'd have to start the process from the beginning, meaning about 90 days to the sale.

[BKinGA]

Received Motion for Relief From Stay (Response)

Here is where I was in the process prior to filing Chapter 7.

I filed on December 4th and owed for Sept, Oct, Nov and Dec mortgage payments and a notice of default had been sent.

Based on that, when I go to court (related to the Motion for Relief) on Jan 20th and assuming that the stay is lifted, will the lender still have to place the ad and run it for 4 weeks before they sell?

Thanks again.

[justbroke]

Based on that, when I go to court (related to the Motion for Relief) on Jan 20th and assuming that the stay is lifted, will the lender still have to place the ad and run it for 4 weeks before they sell?

I can't find anything in the Georgia Statutes to help me. In North Carolina, for instance, the N.C. General Statutes allow a lender to continue the foreclosure exactly where they left off. They only need to tell you the sale date.

I don't know if Georgia is similar to N.C., but that's the worst case scenario. This means they don't have to re-run the ad... only give you the date. Best case is that they need to re-notify you and run the ad for 30 days.

[BKinGA]

Received Motion for Relief From Stay (Additional Info)

Im not sure if this will help, but I looked at my Security Deed and here is what I found. Is this considered the Power of Sale clause?

Transfer of Rights in the Property
Borrower does hereby grant and convey to MERS and to the successors and asigns of MERS with power of sale, the following described property....

There is no reference to a specific time, place and terms of sale in the deed itself.

So then based on the link that you sent me, the lender would still need to have the ad run for 4 weeks?

[BKinGA]

Also the ad was never run. I filed prior to that occuring.

[justbroke]

I believe that they'd have to minimally, run the ad for four weeks, and give you 30-days notice of the date of sale.

What will MOST likely happen, is that the mortgage servicer will make all sorts of offers with you for forbearance, modification, or other terms to bring you up to date. This will probably drag on for 30-days alone.

[dingdong]

I don't know if this will help you or not, I live in California, and am a tenant in a property that was actually in default when I rented it ( however I didn't know that info at the time I rented it.) Anyway, my LL filed BK after the NOD but just before the Trustee Sale Date ( literally 3 days before the first notice of TS). The notice was posted and published once in the newspaper. A few weeks later the lender filed a MFRFS asking for a waiver of the 10 day automatic stay in the motion. Neither my LL nor his attorney showed up to contest the motion. The relief was granted, and approx. 3 weeks later the lender continued the foreclosure process from step one, with a publishing requirement of 21 days. It reverted back to the lender on Dec 15, 2008. My LL filed BK in Mid August. The new Trust Deed which was recorded with the lender as owner was recorded 4 days later.

I have still not received an eviction notice from the lender or any other contact, though I am expecting it any day.

Thought this may give you some idea of a timeline on how the lenders are processing foreclosures. I know this varies state to state and can depend on how busy the lender and the attorneys are with foreclosures.

[BKinGA]

I believe that they'd have to minimally, run the ad for four weeks, and give you 30-days notice of the date of sale.

What will MOST likely happen, is that the mortgage servicer will make all sorts of offers with you for forbearance, modification, or other terms to bring you up to date. This will probably drag on for 30-days alone.

Thanks for the feedback, I am hoping that you are right, that they will have to run the ad for 4 weeks, since it was never run to begin with.

Also, prior to my filing for chapter 7 the lender did approach me trying to offer a mod, forebearance, etc. but the property is so "under water" in value that I didnt want to do it.

But I didnt think that they would offer again AFTER the meeting of creditors, is that common?