My first subpoena -- I feel special! okay, maybe not...

[sillywalks]

Yesterday, I received my first subpoena! Turns out South Carolina Bank and Trust really DOES pursue deficiencies! I stopped payment in March, house was offered on the court house steps on September 8th, and 'purchased' by SCBT for about $20K less than my mortgage. Two months later, I receive notice that they have asked the court to confirm the foreclosure -- which is necessary to pursue deficiency in GA.

A few questions --

Since they have not sold the house, will they sue me for the $20K difference between the auction price and the mortgage price, or will they wait to sue until they sell the house for X amount (let's say $60K below the mortgage amount), and then sue for that amount?

I have been searching, but have not found an answer to the question I have about whether or not I should go to the court for the confirmation hearing. Is there anything I could challenge it on? If they do go ahead and pursue the deficiency, any idea how long it will take? Will they have to get another judgement for the deficiency amount? Is there a period of time they have to wait? I definitely do not want my wages garnished, so I'm kind of worried about the time frame.

I guess this means I will be filing Chapter 7, probably in January or February (I'd like to wait until after I get my tax return).

I have not used any cards since September (for my cat emergency). In October, I paid the minimum on the cards I used to pay for the cat emergency and did not pay on the others. I did this because I was not sure I had enough money to make it through the month if I paid them all. Lots of phone calls since (every 4 days!). Citibank is definitely the most persistent, to say the least. I had planned on trying to pay at least something on all cards this month, but probably will not do it now. Should I still pay on the cards I used for the cat emergency? Should I pay those through December (the 90 day mark)? The minimum payments add up to around $150.

I have played with the means test calculator, and come up with numbers ranging from -$65000 to $3500 depending on the factors I include or exclude. The only time I do not pass the means test is when I include my child support arrearage payments -- but my ex lost his job and has not made these payments for several months (still no job).

I was wondering, though -- if the judge looks at my budget and sees that I am coming up in the negative each month, will he force me to sell my house? My mortgage is $1395 a month, which is $450 above the standard (which is surprising in this area). I rent out my basement for $650 (I include that on the means test, as well as $200 for expenses -- wear and tear, plus $100 for TV/Internet/Power/Water for the basement). Will that help? I definitely want to keep my house!

Now that I know I will be filing, it's a scary and uncertain prospect! As always, input is appreciated!

[keepinitreal]

...house was offered on the court house steps on September 8th, and 'purchased' by SCBT for about $20K less than my mortgage. Two months later, I receive notice that they have asked the court to confirm the foreclosure...

...will they sue me for the $20K difference between the auction price and the mortgage price, or will they wait to sue until they sell the house for X amount (let's say $60K below the mortgage amount), and then sue for that amount?

I definitely want to keep my house!

If I understand correctly, the bank owns the house you're in now. If that's correct, they'll send you an eviction notice. Hopefully I'm wrong, but I don't see how you'll keep your house.

[sillywalks]

Sorry -- I didn't really explain that well, did I? It was actually an 'investment' home (a house I refied into my name after my divorce, my ex and I had owned it). I call it the evil house. LOL The house I meant I don't want to lose is the house I live in now. Thanks, though!

[tcreegan]

Hi sillywalks,

will they sue me for the $20K difference between the auction price and the mortgage price, or will they wait to sue until they sell the house for X amount (let's say $60K below the mortgage amount), and then sue for that amount? No, they are stuck w/ the deficiency between the loan and auction sale. The house is not yours anymore, if they sell at a loss it is their problem.

Is there anything I could challenge it on? probably not, you could delay it maybe..

Will they have to get another judgement for the deficiency amount? ...does this mean they already have a judgement? They only get one....

Is there a period of time they have to wait? ...if they don't have a judgement yet, they file the judgement case, serve you, you have 30 days or so to answer, judge awards judgement, they file for the garnishment, serve you, 45 day wait, garnishment can start. 2 1/2 months at the earliest, most likely 3 months or more

Should I still pay on the cards I used for the cat emergency? Should I pay those through December (the 90 day mark)? ..probably a good idea, shows a 'good faith' effort to repay, reduces grounds for an objection. Don't pay on the other cards

if the judge looks at my budget and sees that I am coming up in the negative each month, will he force me to sell my house? ...trustee not a judge, and they will only force a sale if you have equity beyond the exemption amount, $10,000 for GA I think Can't force a sale b/c of your budget.

I rent out my basement for $650 (I include that on the means test, as well as ... expenses) ...lines 4 & 5 on the means test

Thats all I got for you sillywalks, hope some of it is useful....

Tom in Colo

[sillywalks]

K

[sillywalks]

Ack! The system ate my first response! <sigh> Oh well...

< No, they are stuck w/ the deficiency between the loan and auction sale. The house is not yours anymore, if they sell at a loss it is their problem.>

This makes me wonder why they started the auction bid as high as they did! With all the problems with the house (foundation, siding, roof, problems inside from foundation issue, etc.), I would be shocked if they were able to sell the house for anything close to what they 'bought' it for at auction. Even if they fixed everything, it probably would only sell for what they paid at auction.

< ...does this mean they already have a judgement? They only get one....>

I did not word that well. What I meant is will the confirmation of the foreclosure hearing (which is scheduled for Dec. 15th) also give them the judgement for the deficiency they need to garnish my wages, or will they have to go back to court after December 15th in order to sue me for the deficiency?

<Is there a period of time they have to wait? ...if they don't have a judgement yet, they file the judgement case, serve you, you have 30 days or so to answer, judge awards judgement, they file for the garnishment, serve you, 45 day wait, garnishment can start. 2 1/2 months at the earliest, most likely 3 months or more>

That is good news -- I am thinking February would be the best time for me to file.

< shows a 'good faith' effort to repay, reduces grounds for an objection. Don't pay on the other cards> That's what I thought. Any idea how many missed payments before the CC companies try to get a garnishment? The ones I am not paying are Citibank, AmEx, and Bank of America.

< Can't force a sale b/c of your budget.> Thank goodness for that!

<I rent out my basement for $650 (I include that on the means test, as well as ... expenses) ...lines 4 & 5 on the means test>

Do you think it will be a problem for me to claim $200 as the expense to rent the basement? I figure $100 for utilities, 1/2 of TV/Internet is $70, the rest for wear and tear.

<Thats all I got for you sillywalks, hope some of it is useful....> As always, Tom, you were incredibly helpful! Congrats on your discharge!

K

Tom in Colo[/QUOTE]

[tobee43]

actually many people wait until after they are sued for the deficiency prior to their filing of their bankruptcy.

while i understand it's stressful to receive the summons...it's now time to get yourself an atty and file if that is what you are choosing to do. i know our property is also in a deficiency state as well as it's one of the only states that does not have a cap to foreclosure fees and cost...so one could virtually incur well over 50k=100k worth of cost and fees alone!! not EVEN including the definably.

i agree..i would also wait until feb if you can....that doesn't mean you can hire an atty. we hired one 2 years prior to our actual filing date. i actually wish we were in the position you were in and our deed was going to transfer out of names once and for all....

now, in as much for your expenses for filing...i do believe the deficiency on the house and the costs and fees along with other expenses you hopfully will be fine.

best of luck!

[researchnerd]

Hello and welcome from another GA person!

As I understand it, if they are going to pursue deficiency in GA they have to do it immediately via court order. If they didn't get started until 2 months later, they may be SOL. From OCGA § 44-14-161:

Sales Made On Foreclosure Under Power Of Sale -- When Deficiency Judgment Allowed; Confirmation And Approval; Notice And Hearing; Resale.

(a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.

(c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

[tcreegan]

Nice job researchnerd!!

If I am reading that right, they have to get the ball rolling w/in 30 days, but that just allows them to pursue the deficiency w/ a judgement. (the first action confirms the debt, the second is to collect the debt)

So the answer to this question What I meant is will the confirmation of the foreclosure hearing (which is scheduled for Dec. 15th) also give them the judgement for the deficiency they need to garnish my wages, or will they have to go back to court after December 15th in order to sue me for the deficiency? would be, Dec 15 is the confirmation hearing, they have to go back to court to get a judgement. Close....?

researchnerd has the anwer to this question: makes me wonder why they started the auction bid as high as they did

b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale. It has to pass the smell test in front of a judge...

Any idea how many missed payments before the CC companies try to get a garnishment? months, long past Feb; same story...no payments for 2-3 months they get the idea, file case, serve you, 30 days to answer, go to court and ask for final statement including a breakout of all fees, wait another 30 days, back to court, the get judgement, file for garnishment, wait 45 days, start garnishment.

The basement should be OK, have some documentation just in case..

Roll on sillywalks (or should I say walk on in a silly fashion? gotta love M.P.)

Tom in Colo

[tobee43]

tom.....researchnerd lives in georgia...the new..."we are drinking SMART" water state...LOL!!!!! i think researchnerd is just a bright one!!

unfortunately, the lenders usually find a way around OCGA § 44-14-161 IF they feel they can get some bucks...but it's all moot once the OP files bk...it's discharge that way, if all else fails.

[sillywalks]

<

actually many people wait until after they are sued for the deficiency prior to their filing of their bankruptcy. >

Now that I know they are actually going through with it, I don't know of any reason to wait? I'd rather get it over and done with and move on!

<while i understand it's stressful to receive the summons...it's now time to get yourself an atty and file if that is what you are choosing to do. >

My plan, at this time, is to file Pro Se, but I will be consulting an attorney just to make sure I know the ins and out of how things work in my county.

<i know our property is also in a deficiency state as well as it's one of the only states that does not have a cap to foreclosure fees and cost...so one could virtually incur well over 50k=100k worth of cost and fees alone!! not EVEN including the definably.>

It's a rotten turn of luck! It makes me envious of the states that don't allow the deficiency...but then it's 70 degrees and sunny in January and it makes it all better. lol

<i agree..i would also wait until feb if you can....that doesn't mean you can hire an atty. we hired one 2 years prior to our actual filing date. i actually wish we were in the position you were in and our deed was going to transfer out of names once and for all....>

I am sorting through lawyer possiblities (one pile for nurse sharks, one for great whites, one for dolphins with delusions of grandeur -- lol). I was shocked by the speed of the process, considering what many have to go through!

<best of luck!

>

To you, too! Thanks!

[sillywalks]

<Hello and welcome from another GA person!>

Hello! Have you gotten your bread and milk yet? ;)

<As I understand it, if they are going to pursue deficiency in GA they have to do it immediately via court order. If they didn't get started until 2 months later, they may be SOL. From OCGA § 44-14-161:[/QUOTE]>

I thought that, too -- but in the summons, it states that they notified the COURT within 30 days (as required) and the summons was MY notification of the actual, scheduled court date. Thanks, though, because that was a good catch!

Researchnerd --

[sillywalks]

<Dec 15 is the confirmation hearing, they have to go back to court to get a judgement. Close....?>

That's what I was hoping!

< The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.[/I] It has to pass the smell test in front of a judge...>

Which makes sense, but doesn't the fair market value include any damage/needed repairs/problems with the house and the expense of repairing them? There has to be at least $30K of work that needs to be done, but even with that I'm not sure the house will sell above what they paid (meaning they lose all the cost of repairs). I could be wrong, though!

<Any idea how many missed payments before the CC companies try to get a garnishment? months, long past Feb; same story...no payments for 2-3 months they get the idea, file case, serve you, 30 days to answer, go to court and ask for final statement including a breakout of all fees, wait another 30 days, back to court, the get judgement, file for garnishment, wait 45 days, start garnishment. >

VERY good news, then!


<Roll on sillywalks (or should I say walk on in a silly fashion? gotta love M.P.)>

I love M.P. I have an email account under 'Done Bananas' (from the attacking with fruit skit - just about every other line was taken!). You know, "How about bananas? We haven't done bananas, have we? Very well then..." Genius...pure British genius!

K

[sillywalks]

<while i understand it's stressful to receive the summons>

As a relatively law-abiding citizen, it kind of made me feel like a naughty, naughty girl! LOL

[tobee43]

yes silly...it's nice to feel naughty sometimes...BUT not in that way!