homestead questions and converting from 7 to 13

[reesemay]

I have asked a few times, and have not recieved an answer. About the homestead, and forms for the stay...any links or ideas would be appreciated.

[newbie2]

Since you are tackling this on your own ask the question in the Pro Se section. Perhaps someone there will have your answers. You can also call the clerk of your court and ask if the forms you want are online, or if you can go pick them up.

[justbroke]

Well I guess the atty who wrote up the complaint does not understand what he is doing then. They specificly stated the mortgae was equstinguished/non existant. From their website it looks like they have been doing bk for about 15 years so I have an idea they know what they are talking about.

No, they know exactly what they wrote. If the title doesn't clear, then it extinguishes the sale because the sale was not complete. What they are saying in their motion is that subject to having the RFS granted, they can complete the sale and title work. Otherwise, you don't have a completed sale. This is why the attorneys you talked to are telling you to walk. Again, if you want to pursue some weird "note" issue, that should have been done BEFORE they received a judgment in their favor in the local court. You should be talking to an attorney specializing in foreclosures if you think "that" state court judgment should be overturned.

I have asked a few times, and have not recieved an answer. About the homestead, and forms for the stay...any links or ideas would be appreciated.

I did answer it, right in my first post. There are no forms. It is not a stay violation. i believe the problem is that you don't understand what a "homestead exemption" is and what it does after a foreclosure sale. It only protects you from creditors, but not the creditor that did lend you money for the home. That's why they get a "security instrument" known as a mortgage, and have the right to ask a court to issue a judgment of foreclosure. That judgment was entered.

You are in a bad place, unless you go get a REAL foreclosure attorney. I don't see any way that home is owned "free and clear" by you since the sale never completed. What you "now" have is only the ability to convert to let it go, or file a Chapter 13 and get a Plan or Reorganization confirmed which includes the home and a plan for curing the arrearage.

You don't need to go to the Pro Se section, because I mostly post there.

[reesemay]

thanks for the replies ..sorry to sound brash..very very stressed...I am sure everyone on here understands that..thanks again

[justbroke]

thanks for the replies ..sorry to sound brash..very very stressed...I am sure everyone on here understands that..thanks again

Very stressful and I completely understand. The thing is that you need a plan and a strategy. If your plan is to keep the home, you must assess the value of that decision from a financial, not emotional, standpoint. (I know that you believe that you own the home free and clear, but you don't. An judgment of foreclosure was actually entered, but your filing just "stayed" the completion of that order, since no title has been issued yet. The only way to save that home is a Chapter 13, and I'll go that that now.)

You indicated that you are $200K underwater on the home. Unless you have a second mortgage on the home, there is absolutely no reason -- that you presented -- to keep the home. If it did have a second mortgage that was around $200K, you "might" consider conversion to a Chapter 13 before the Chapter 7 discharges. Otherwise, the debt will be discharged and there is nothing that a Chapter 13 would solve for you.

(I'm referring to a Chapter 13s use of a "lien strip" to strip off the second and other junior mortgages. However, you need to receive a discharge in order for the strip to "stick". If you receive your Chapter 7 discharge -- or received one within 4 years of filing the Chapter 13 -- then there is no discharge in that subsequent Chapter 13. Therefore, you can't lien strip without the discharge.)

Most of what I am posting about is strategy. It's financial planning as well. You really want to have a fresh start and not be burdened by excess debt. This is why the Chapter 7 discharges all debt. However, secured creditors still have the right to seek foreclosure or repossession after the case discharges or a motion for relief from stay is granted, whichever comes first.

[tcreegan]

Stay and homestead

Hello reesemay,

I have asked a few times, and have not recieved an answer. About the homestead, and forms for the stay...any links or ideas would be appreciated.

The debtor has no forms for the stay b/c there is basically nothing they can do about it. It operates against creditors, not debtors. The stay doesn't prevent a debtor from contacting a creditor, voluntarily paying a debt, or entering into a new contract.
A secured creditor can file a 'motion for relief' from the automatic stay or a creditor can file an 'objection' to a debt being discharged (this is what unsecured creditors do if they think the debt was fraudulent).


In Fla you have an unlimited homestead exemption.
This means that any real property you own at the time of filing cannot be attached and sold by the bankruptcy trustee.
During the BK, no one can ask you for $$ (on anything, house included)
All legal proceedings to recover property by secured creditors must cease unless...
...a secured creditor files and is granted a relief from stay, then they can begin legal proceedings to recover their collateral
...a secured creditor just waits until after the discharge, then they can begin legal proceedings to recover their collateral
What a secured creditor can do/cannot do to recover their collateral is spelled out in state law, not BK law
Post discharge the only help you get from BK law is that no one can anyone ask you to pay $$ for anything that happened b4 the date of your BK filing

From some of the other posts, it seems the essential fact is the status of the deed to the property at the time of filing. Here is where you really need the services of a title company, but you can also go the govt agency where real estate deeds are recorded (around here it is the county) Find out: who was on the deed at time of filing and were there any liens on the property (mortgage notes, tax liens, property security interests, whatever) at that time.
If your name alone is on the deed, and there are no liens against it, enjoy your home.
If your name alone is on the deed, and there ARE liens against it, the lienholders can take steps (ie: foreclosure) to recover their interest in the property. Property gets sold, lienholders get paid, you get the rest.
If your name is NOT on the deed, cie la vie, its not yours.

Again, it is important to go to the agency that records deeds in your area and find the actual records of the deed at the time of filing.

As to reversing pre-BK real estate transactions (or any transactions,) the trustee can get back preferential payments to an unsecured creditor and recall any payments or property transfers to an 'insider' (ie: family members, business partner) In FL w/ an unlimited homestead exemption, the house essentially never becomes a part of the BK estate, so the trustee can't do anything about it.

Covering all this is the case of fraud. Then the case is dismissed and you can't refile for awhile.

Hope some of this gibberish was comprehensible....

Tom in Colo

Hope some of this helps,

Tom in Colo

[reesemay]

The only lien on the property is a judgement, which is for money not for the house. Judgement only becomes a lien when properly "perfected" and in my case was not properly perfected.



My question about the stay:
The creditor has a stay lifted, I want the stay re-inforced, how do I go about that? It is a legitmate question to the courts about ownershhip

[justbroke]

The only lien on the property is a judgement, which is for money not for the house. Judgement only becomes a lien when properly "perfected" and in my case was not properly perfected.

Wrong on the facts. There was a lien because there is a mortgage. The mortgage is not satisfied, hence no "satisfaction of mortgage" is recorded in the appropriate recorder's office. Unless and until the mortgage is satisfied, there is a lien that continues in full force and affect.

You are somehow bootstrapping that the foreclosure happened and prior to the issuance of title, you filed bankruptcy. Since you want to bootstrap, let me bootstrap. Since there was actually a foreclosure, then there must have ACTUALLY been a secured debt for which the home was pledged as collateral in a security instrument. That security instrument is a mortgage. So one does exist.

The creditor has a stay lifted, I want the stay re-inforced, how do I go about that? It is a legitmate question to the courts about ownershhip

If the stay is already lifted, you have no case. If you want to appeal you must have done so in 10 days of the order. The stay was granted because they presented a valid mortgage. You should have already objected to the relief request. Even then, the judge would grant it anyhow and let it go to State court since keeping a primary residence is "not necessary for the effective reorganization of the debtor" unless you're in a Chapter 13.

You have issues and are still looking for answers that even attorneys tell you... are not there.

I do not see you winning an opposition to a Motion for Relief from the Automatic Stay on this matter. The "homestead" exemption is irrelevant for purposes of the discussion. The "homestead" exemption does not protect you from a secured party with a mortgage or other lien upon the property in question.

[reesemay]

You dont get it...the property is not secured by a mortgage or note they were lost. they do not have any proof of ownership it was established the note and mortgae were lost. New laws were enacted just because of this. without proof of ownership they can not take your house. What they have is only a false judgement. They do not own the note they have proven that they do not own the mortgage they have proven that
If you do not want to help me w/ any info on trying to enforce the stay just say so. I still have time to object, to the stay lifting and will find my answer some where even if you chose not to provide anything other than an argument.

I also talked to the court house about the irs automatically being notified, which in our district DOES NOT HAPPEN it has to be in your schedules

[justbroke]

You dont get it...the property is not secured by a mortgage or note they were lost.

I absolutely get it and absolutely understand this process, especially around a "lost note". Notes are lost all the time. Please read Florida Statute 673.3091 (673 Part II: Enforcement of Instruments). The owner is absolutely allowed to re-establish the note under Florida law. If you had a "lost note" issue, you should have raised that in your objection to the foreclosure. The bankruptcy court judge is not going to care that they lost the note because they received a judgment in State non-bankruptcy court and had re-established the note.

they do not have any proof of ownership it was established the note and mortgae were lost.

They obviously re-established the note in the State non-bankruptcy action and were granted a judgment. If you had/have a reason for appeal, you should be in the State non-bankruptcy court. However, I have a feeling that you have took too long and you have no right to appeal because the bar date for filing an appeal has passed. (On second thought, the Automatic Stay may have tolled the bar date for appeal...)

New laws were enacted just because of this. without proof of ownership they can not take your house.

What new laws? Please cite the Florida Statute.

What they have is only a false judgement. They do not own the note they have proven that they do not own the mortgage they have proven that

"They" don't have a false judgment. "They" have an un-appealed and enforceceable judgment of foreclosure on the property.

If you do not want to help me w/ any info on trying to enforce the stay just say so. I still have time to object, to the stay lifting and will find my answer some where even if you chose not to provide anything other than an argument.

I've told you what to do, and I told you what will happen. You just don't want to read and take note of what I stated above.

You would file an opposition. This has absolutely nothing to do with your homestead exemption. Your home is NOT necessary for an effective reorganization (in a Chapter 7). You have no cause of action. If the judgment was already entered, the Federal Judge will kick this back to State non-bankruptcy court because they a.) already have a judgment, b.) re-established the note under Florida Statute 673.3091, and c.) are entitled to enforce the provisions of the security instrument.

I also talked to the court house about the irs automatically being notified, which in our district DOES NOT HAPPEN it has to be in your schedules

If you're in Florida, check the "Creditor Matrix" link in PACER. The following are automatic: Florida Department of Law Enforcement, IRS, your county Tax Assessor and the Florida Department of Revenue Having wrote that, you should always schedule creditors so that there are no questions about notification.

I've given you help. I have let you know what would happen and why, and I'm afraid that you do not know what you are doing. If you want to fight this, you need to do so in State non-bankruptcy court -- your County Civil Circuit Court. Even if the relief wasn't granted, the stay (imposed by 11 USC 362) automatically expires upon discharge. You will need to go back to your Florida County Civil and file an appeal of the judgment of foreclosure. I'm afraid that you're dealing with this the wrong way because you neither know what to do or how to do it.

There is no help that we can give you here as this is a specific foreclosure action that has already gone to judgment. Your best best, should you choose to fight this and appeal the Circuit Civil judgment, is to actually allow the RFS motion to be granted and then file an appeal in Circuit Civil. You will have an uphill batter there. My expertise ends at the trial portion of the Circuit Civil. I can tell you all day about the Bankruptcy court.

And, because I'm a full-service person, I'll give you another avenue. However, I don't think it will work, but it will CERTAINLY delay all the hoopla with the sale. You could file a Complaint to Determine Secured Status (Adversary Proceeding/AP) and see if the Judge bites. Sometimes they will, but most times, they will not get involved in lower (State) court issues. Unfortunately, a Complaint is a full blown lawsuit complete with trial. You will need to know the FRCP, FRBP, Fed. R. Ev. and all the procedure in the world. At least the Complaint would slow things down drastically. By filing it, you wouldn't even get to the scheduling conference (hearing) until 90-120 days after filing it. As a delay tactic, it's superb. I don't condone it.

The only thing you could argue, in the adversary, was that they never had possession of the note. Not that they don't "own" it.

Now, this mortgage defense stuff is an art form and those that actually practice it, as attorneys, know the pitfalls, You should really be working with an attorney if you're going the Adversary Proceeding route. Perhaps they can work on contingency, somehow (because this is not a money judgment that you are seeking).

[justbroke]

Being extremely nice and wanting you to do this right, if you are intent on trying to overturn a state court judgment. Know that the lower federal courts (including the U.S. Bankruptcy Court) are barred from reviewing state court decisions.

Here's a specific case, Mary Homer-Radtke v. Associated Mortgage et al, Bankr. Northern District of Illinois, Case 03 B 26152 (and 03 B 26154), where the pro se debtor tried to do the SAME thing that you are trying to do. However, the Judge Goldgar ruled that the "lower" federal court is barred from merely voiding or otherwise overturning a State court judgment. This is what I eluded to that the federal judge would just send it back to the State court.

Here's another case where the debtor tried to do the same as you. In the case, Terry Schuchman v. CJC Electric, Inc. Bankr. Southern District of Illinois, 02-CV-0405-DRH, Adversary 01-3172, went specifically to your issue. The debtor, much like you, tried to get the judge to overturn the state judgment. The debtor then appealed once the bankruptcy judge denied the motion/complaint because the bankruptcy court (lower federal court) lacks jurisdiction.

Again, you are going to end back up in State court and should be preparing a battle there. Your only chance is to appeal the order granting the judgment. You need to be sure that your appeal is timely as well.

I know this information is not what you want to be reading, but it's what I've been saying, and I wanted to provide you with facts, statutes, and caselaw.

[tcreegan]

Hi all, Hi reesemay,

Did you research your deed/title? Seems like this is the essential question....

Tom in Colo

[justbroke]

Did you research your deed/title? Seems like this is the essential question....

Actually, it's not at this point. The debtor has a judgment already entered. They need to fight this, and should have brought forth that particular problem with the note, in the underlying State non-bankruptcy action. Unfortunately, reese is trying to fight this in bankruptcy court but I'm seeing it's a violation of the Rooker-Feldman doctrine for the bankruptcy court to "intervene" or even review the state court judgment.

The problem is that no defense was "successfully" raised in the State non-bankruptcy (foreclosure) action. Reesemay needs to get back into the State court and attempt to appeal the judgment and have it vacated. Perhaps the appeal "could" claim that the foreclosure was void ab initio because the movant (lender) was not entitled to enforce the terms of the security instrument (mortgage). However, this was in fact a lost note foreclosure and the movant (lender) re-established the note under Florida law.

Reesemay may need to punt, but I highly highly suggest a foreclosure attorney to see if your state court action is appeal-table. I don't see any traction in the U.S. Bankruptcy Court since they have no jurisdiction

[reesemay]

no atty right now gives a crap about anybody other than them self, and collecting high dollars from people who cant afford it. I have already been thru that and was screwed, this really sucks that a normal average citizens cant use the court systems effectivly because everything is so convoluted it is hard to understand and comprehend

The new laws I was referring to was that the original notes and mortgaes HAVE to be attached to foreclosure complaints to avoid all the shenanigans the atty's were pulling that was ordered by the supreme court. I dont know the numbers or statutes but it is well known

Obviously who ever I talked to at the court house does not have a clue what they are talking about then about notices I know all this comes out harsh and brash but this once again is a very trying and stressful event. I know the bank is trying to take from me something they dont own and have been paid I am sure several times over...and I have no way to stop it because I am broke

I did hire an atty within the allowed time to appeal, they did nothing to even attemp to appeal. Never told me they would not appeal. They filed a few motions and rushed me into the new modification scam crap that all the banks deny (most anyway) and when it failed and the other side did not comply with the rules they did nothing except file a motion on the day of the sale. too little too late...lazy if you ask me $2000 down the drain

[reesemay]

on the complaint to lift the stay, the end of it says I can request validation of the debt. Would it be of you opinion to do this? If so what would be the questions to ask about the note?