Emergency petition?

[BROKEDED]

I need some answers about an emergency petition to stop the foreclosure process. My understanding is that I would file the first 2 pages of the petition and the creditors info to stop the FC.

1. I then have 15 days to complete the petition or the case is dismissed, right?

2. Once the case is dismissed, does the Clerk of Court have to schedule a new foreclosure hearing and sale date?

3. Does the trustee look at this negatively when I file a CH 7?

4. Is the emergency petition something I could do myself?

[justbroke]

I need some answers about an emergency petition to stop the foreclosure process. My understanding is that I would file the first 2 pages of the petition and the creditors info to stop the FC.

You really need to check with the clerk of your local Court for local rules! The first 2 pages of the petition is really for a "faxed" in emergency (after hours) petition. For example, you also need proof of taking the pre-filing class. Also, there may be local forms.

1. I then have 15 days to complete the petition or the case is dismissed, right?

Or the case "may" be dismissed for cause.

2. Once the case is dismissed, does the Clerk of Court have to schedule a new foreclosure hearing and sale date?

Not in all States. This is State specific. In many States, the "stay" from the bankruptcy only "stalls" the foreclosure. If the stay is not in place when the original sale date comes up, the sale can go through as if nothing happened. In some States, it may need to be rescheduled, but may not require any of the noticing requirements (by publication). This is just too State specific to answer really.

3. Does the trustee look at this negatively when I file a CH 7?

Yes... any serial filing is looked upon as though you are abusing the system!

4. Is the emergency petition something I could do myself?

Yes. However, if you're just playing games with the system... I wouldn't do it.

[SMinGA]

This is something to discuss with an attorney...

If you are talking about filing, letting it be dismissed by not filing all paperwork and then filing again. One of the changes to the 2005 BK code was that with repeat filings in a certain time span (not sure if its 6 months, 1 year) you may not get the benefit of the automatic stay. I don't know the details, but if you're trying to game the system: bad idea!

[justbroke]

If you are talking about filing, letting it be dismissed by not filing all paperwork and then filing again. One of the changes to the 2005 BK code was that with repeat filings in a certain time span (not sure if its 6 months, 1 year) you may not get the benefit of the automatic stay. I don't know the details, but if you're trying to game the system: bad idea!

You do get the benefit of the automatic stay, but only for 30 days. This is why serial filers need to file what is known as first day motions. The most important first day motion on a serial filing, is the Motion to Continue Automatic Stay.

Even worse, if, in the prior "serial" filing, a motion for relief from stay was granted, and the case dismissed... the next filing will not allow a stay as to the creditor that received the relief in the prior dismissed case. This is an important distinction because this stops the serial filers from gaming the system to stave off foreclosures.

Playing the serial filing game is why these changes were made in the BAPCPA of 2005. If the Court finds out that you gamed the system, they can order a dismissal with prejudice. This will mean that you will not be able to EVER discharge any debt that was incurred prior to the filing of the case which was dismissed with prejudice. It's a severe penalty, but it is good for deterring serial filers.

[BROKEDED]

Thanks guys for your info. Very valuable and much appreciated.

I won't say I'm trying to game the system but like most people on this site, I WOULD like to stay in my house as long as possible without having to pack everything up and move. The emergency petition question was really as a last resort and for just that reason...an emergency in case I couldn't file CH 7 before the FC sale.

In my state, the banking commission has passed two new rules that FC must stop if the borrower request a modification and the lender has to respond in a timely manner. The rule does not apply to all lenders in all situations. I have NOT requested a mod yet and that would more than likely be for stalling the process, I'll admit.

My main reason right now is that it's quite possible (likely?) that we would have to be out right before Christmas and my wife would be about 6 months pregnant at that time. It would probably be easier on both of us if we could wait until after the holidays. An extra month or two delay would be very beneficial.

People say that the banks and courts are backlogged but the lender has been "Johnny on the spot" on their side and the only delay has been with the extra time between our notice and the hearing. The sale is just 16 days later. Based on that, I'm not hopeful that the lender will allow us to stay in the house very long at all after the CH 7 discharge. Fannie Mae owns the loan. If nothing else, maybe FM will make the banks halt the FC process during the holidays like it did last year.

[justbroke]

Well, the reason your sale is so fast, is because you're in North Carolina where they are non-judicial foreclosures. North Carolina mortgages are typically issued as a "Deed of Trust", that allows allow the lender to foreclose using the rights granted it under the Power of Sale clause in the Deed of Trust.

Most everyone else on this site have a traditional Mortgage (not Deed of Trust) as the security instrument and they have judicial foreclosures in their State. That's why it takes longer in other States. You just happen to live in a State that is very pro-lender.

[HHM]

I wouldn't file an emergency petition to stall a foreclosure that is inevitable. It buys you only 15-30 days. Not really worth it given the potential downside of jeopardizing your eventual, legitimate bankruptcy.

At some point, you need to pull the trigger and move, I understand that allure of staying in the house rent free, but you also need to be practical. If you think the foreclosure will eventually happen around the holiday, you might as well start planning for it.

To answer the question. As was pointed out, you want to check with the local rules for any local peculiarities, but in general...you need the following

-First 2 pages (The Petition, Form B1)
-Statement of Social Security Number (Form B6)
-All Creditor Schedules (priority, secured, unsecured) (many districts do not require the actual schedules, but generally, since you have to do the matrix, it is easy enough to prep the creditor schedules).
-Creditor Matrix
-Certificate of completion of the 1st CCC course.
-Cover sheet. Many districts will have a cover sheet that you must complete.
-Must pay the filing fee in full.

Then you have 14 days to send the rest (Fed Rules went to a 7 day calender system, so I believe the time line changed from 15 days to 14 days)

[BROKEDED]

justbroke - Yes, good ole NC! Pro-tax, pro-employer, pro-fees, pro-fines, pro-lender. What more could you ask for? Any good prices on foreclosed land down there? I'm about ready to go hillbilly and off the grid. My next shack might be in FL or WV.

HHM - Thank you for the additional info. I'm not planning on going that route but wanted the info just in case and to see if it was a good or bad idea. So far, it sounds like a bad idea if avoidable.

I did "pull the trigger" just a few minutes ago and called the ncforeclosurehelp.org phone number who in turn called my servicer for a 3-way call. My servicer is sending me a mod packet but I think I have one here that I may go ahead and fill out.

I asked the servicer if my modification request would stop the FC and explained that I had read too many stories of people having the rug jerked out from under them while they were in the mod process. Her answer was "NO" so apparently they are not bound by the new rules and regs. However, she told me that once my paperwork had been received, processed and uploaded that I could "request" that the sale date be postponed.

The kicker there is that she said that the request had to be made 5-7 days prior to the sale date and no earlier and that it could take up until the sale date to be approved. Yeah, that sounds promising. So if they say "no" then my (correction) my attorney's finger better be on the trigger.

My intentions now is to take this information with me to the Clerk of Courts, explain my situation, explain the difficulty and the tiny window of opportunity between having my mod processed and the FC halted and ask for a 60 day extention.

Think it will work?

[BROKEDED]

Oh yeah, the servicer told me 5-7 days before the sale date to request the FC suspended and then gave me a date 2 days prior to the sale. I questioned her about that. My paperwork from the Clerk of Courts has a sale date of the 20th, the servicer's says the 25th.

So they're gonna give me 2 days to request and get approved a FC stop. What are those odds?

[justbroke]

My intentions now is to take this information with me to the Clerk of Courts, explain my situation, explain the difficulty and the tiny window of opportunity between having my mod processed and the FC halted and ask for a 60 day extention.

The Clerk of the Court, who is the finder of fact in these non-judicial foreclosures, will not care. The fact is, that you have defaulted. The Power of Sale clause is... powerful, for lack of a better word. All the lender need do is show that you defaulted. That's it.

They also, generally, don't grant extensions and unless you can prove that they have no standing to bring forth the foreclosure, it's difficult to stop a foreclosure sale in a non-judicial State.

Been there, done that!

[BROKEDED]

BHAAAArrrrggghh! You REALLY have a way of dampening my spirits! But I appreciate your honesty. Advice taken. Thank you! Might I ask what county you were in?

Also, you still didn't answer my other question?

[justbroke]

Charlotte-Mecklenburg. And, yes, there is land down here in Florida. Just stay out of the metro areas, which I assume you want to do anyhow!