Can mortgage company foreclose if you are less than 30 days late in payment?

[csonly]

Filed Chapter 7 first week of November, 2010. My mortgage payment for October went past 30 days and I called on or around 11/4 and set up phone payment for 11/12, so basically at that time, I owed October and now November. They processed the payment on 11/15, but looking at my statement online, it was really NOT posted, but does show that they received it. Yesterday, I was notified that the mortage co. filed a motion to lift the automatic stay due to Oct and Nov payments not made and my escrow being behind by $216. They want the stay lifted to proceed with foreclosure. I don't want to foreclose. I will be able to make the Nov payment by the end of this week. So can they continue foreclosure if my payments become current or less than 30 days late?

[tobee43]

pennsylvania is a judicial state....so they do have to go through the courts and you need to have proper notice.

if you get served with notice you can go to court and delay the situation. it would, nowadays be in the banks best interest to work with you...however, nothing is surprising at this point.

the process takes time...the bank must follow the process with legal notifications etc.

do you have an atty for your chapter 7 filing?? if you do, i would let the firm know what's going on.

[Flamingo]

You need to discuss this with your attorney since you already filed. Also note that once you are 30 days late after your due date on any payment, you are in breach of contract - pull out your mortgage paperwork given to you at the time of settlement and it is all spelled out in there what they will do when you are late. When you get this straightened out, make sure you make all your payments on time, on or before the due date.

[csonly]

I do have an attorney and he probably got the motion yesterday, when I got it, but of course it's the weekend and I've been very nervous since I got that letter. I did tell him that my payment was 40 some days behind and that when I talked to the mortgage co. they said they needed to speak with him to see how to post the payment and I told him this, he didn't seem concerned. Now this motion has been made and I have no clue what they intend to do, even though my account will be current by the end of this week.

[despritfreya]

The lifting of the Automatic Stay does not mean the lender is foreclosing. All it means is that the property is being removed from the protection of the bk court. The lender must still follow your State's foreclosure laws. Further, the only thing that the Motion is doing is removing the protection of the bk court sooner rather than later. The stay will be lifted upon entry of your discharge anyway, which is about 4 months after you filed.

Des.

[tobee43]

csonly, i'm certain it's only procedural...and you really don't have to worry about it.

going through bk, is most stressful when we get these notifications that seemingly do not make sense to us. however, it's common that a mortgage holder would request the stay to be lifted to complete their process.

you didn't mention if you had been served prior to filing for the foreclosure?? nor, if any, action had been taken on your behalf. once again, your atty should handle this for you...

don't you just LOVE how one seems to always receives these types of notices on the weekend...i'll tell you, they have some timing!!

it will be ok....just call your atty tomorrow and they will clear it all up for you..

[csonly]

This motion for lift of automatic stay is the only time I have ever had the word "foreclosure" thrown at me. I have always been current with my mortgage payments. In the past year due to a cut in my pay, the payments most often were in the grace period but never after 30 days. This last payment was the very first time it went past 30 days, and this was because I had to pay the lawyer before I could even file, so that in itself was even more than my house payment, so the answer is that I never had any type of foreclosure threat. I have a 1 year old and 2 year old children and 1 disabled adult daughter who was in a car accident with a brain injury 4 years ago living in the home, the last thing I need right now is to get thrown out of my house when I'm trying so depespately to keep it and I have not avoided the mortgage company whatsoever, and made regular calls to them with updates of my situation, payments, etc. I do understand they need to protect themselves and the property, but on the other hand, I've been very honest and upfront with them. Why couldn't they just send my lawyer a letter or talk to him about getting the account current and what their intentions were rather than file the motion? I'm trying very hard not to worry, but it's my nature. Thank you to everyone for your encouragement and replies.

[BKlooker]

As others have said, you have nothing to worry about as far as being out on the street. As others have said, PA is a judicial state, so they can't even start the foreclosure process until after you have been served the notice of default and given an additional 30 days from there...in other words, they can't really even get the show on the road until after you are a solid 90 days behind.

The lifting of the stay just means that the mortgage company is asking for your mortgage to now be excluded from the same "force field" that is prevent credit card companies and any other debtor you owe money to from calling you, getting a judgment, or any other adverse action while the process is under way. But if you are only 30 days behind, they can't just "throw you out" without going through a lot more of the process involved in foreclosure than that (and if they do, any lawyer worth a dime would wipe the walls with them, and so would a judge in all likelihood).

Your best bet is to just sync up with your lawyer about it. Worst case scenario is just that they get the stay lifted, and that's all.....no more issues from there, assuming you catch up on your payments as you noted.

[tcreegan]

Hi csonly,

Keep in contact w/ your lender, they have restrictions on contacting you so you must contact them (at least during the automatic stay, and they might still be shy after the stay lifts) And if your atty is supposed to do something, call and ask 'did my atty do such & such?' Find out if your lender has a BK or loss-mitigation dept, and is that where your loan is being handled, try to find a 'point' person you can contact each time instead of getting different people all the time.

Hope this helps, good luck on this,

Tom in Colo

[csonly]

I talked to my attorney and also my mortgage company this morning. They both said as long as my mortgage is current, they won't do anything, but since they did file the motion to lift the stay, I will be charged their attorney fees and the fee to file, which the mortgage co. said would be tacked onto my balance and I can pay that over time and do not need to pay those fees in order to be current. My attorney said they may drop the motion if the account is current, but I'm not holding my breath on that.

My next dilemma are my car payments, both with the same lender. They are both late but not more than 30 days. My attorney advised me not to reaffirm. When I talked to the lender, they told me to use this time for "breathing room." But, I don't want to get behind too much since I don't plan to reaffirm. I've been pulling everything I have to get the mortgage payment current and have been letting the car pmts and utilities on the back burner for the time being. Any suggestions or advice about the car payments, especially if they can try to lift the stay also. I know the lender told me not to worry about it, but in all honesty, I don't put much faith in that statement.

Thank you all for your help and input getting me through this very tough situation.

[tcreegan]

Hi csonly,

Yeah, the auto lender can file to lift the automatic stay, and they will if they are interested in getting the cars back. But most lenders don't want to 'eat steel' The best deal for them if for you to keep paying. If they said not to worry, I wouldn't worry about it.

I would, however, worry about a couple things:

1) If you are behind on the car payments, and miss a few more during the BK, you need to contact the lender and ask what is going to happen with the late payments. Are they going to want them right away, tack them onto the end of the loan, or...?

2) everything I have to get the mortgage payment current and have been letting the car pmts and utilities on the back burner for the time being ...are you going to be OK post-BK with the mortgage + car payments and still have some $$ to put in savings?

Good luck with everything, hope it works out for you!

Tom in Colo

[csonly]

Tom,
Thanks for your response. I do know that the car lender was looking into a reaffirm offer, but again, my lawyer strongly advised against that. I am going to call them again and ask those questions. With my income (as long as nothing major happens), I will be able to make the house payment and car payments, but having to come up with the attorney and filing fees, killed me. I've been robbing Peter to pay Paul. My daycare costs per month is more than my mortgage payment, so I know at least that is only for a few more years and not a long-term expense. As far as savings, I really doubt that I will have any money left over for that at this point, so if we have an unexpected expense, that will be a challenge.