File motion to avoid or strip lein on home if we aren't reaffirming mortgage?

[moonbeam9209]

We are over a year into our hamp mod. with no late payments, we filed Chapter 7 in July 2012, expect to be discharged sometime after September 20th, 2012 and have decided not to reaffirm our mortgage with the credit union. We are upside down. Owe 194k on a home worth maybe 150k, but have a nice low payment due to the HAMP mod. Our payment went from 1493.00 at 6.625% to 934.00 at 2%.

Anyhow, I was wondering if we need to file a motion to avoid the lein in case AFTER the bk is discharged our credit union offers us a new modification? Of course, we would only accept that if they reduced our principal, and possible an even lower pmt. We are still struggling with the payment,even though hubby has decent and steady employment, just making enough to pay bills, no month left at the end of our money...

btw., two judgements against me..one for 8k and another for 5k...and there is a lein against me.

Also, they have a lein against our car, which we have paid off, but the cu refuses to give us title because we owe them on a credit card. I am hoping they will have to give us the title once the Credit card is discharged...

Any thoughts are appreciated...

[HHM]

You will want to file Motion to Avoid the Judicial Liens, certainly. You won't be able to avoid the lien of the Credit Union for the mortgage.

[moonbeam9209]

I'm sorry, I don't mean to sound stupid, but I believe the judicial liens are the ones from the credit card judgements, right? I have copies of the judgements for them or the fifa, but they (Target or Citibank/Home Depot)cannot put a lien on the house, correct? Will the Credit Union file a lien on the house AFTER my bk is discharged?

1. What type of motion will I file? Is it for a MPSI? Can you provide me a link to that form?

2. What about to strip the lien so I can get the car title, since the credit union card will have been discharged ?

[moonbeam9209]

Also, why did we use the exemption for our home? It seems redundant if we aren't going to reaffirm anyways.

[HHM]

Do you have an attorney? The questions you have are a bit beyond what this forum is able to do. You are asking specifically, for your case, what to do and how to do it. You need to figure that out. About all we can do is tell you want you can and can't do.

I didn't mention it in my first response, but your post is a bit confusing.

The homestead exemption only protects you from other unsecured creditors. It doesn't provide any protection against mortgages and HELOC's. As such, you won't be able to do anything with those loans, regardless of you not reaffirming. The only issues remaining are (a) are the credit card judgments been property filed as judgment liens (if yes, you will need to do a Motion to Avoid those Liens), and the car. Unfortunately, you are combating what is known as a cross-collateralization agreement. Here, exemptions come into play, is the car 100% exempt, if yes, then you would file a a 522(f) motion to avoid the lien on the car.

[moonbeam9209]

Do you have an attorney? No, we (my husband and I) filed pro se. We do have a friend that is a paralegal in another state, and she basically did our paperwork on her program, and sent it to me and I printed it out and filed it in the Northern GA bk districtThe questions you have are a bit beyond what this forum is able to do. You are asking specifically, for your case, what to do and how to do it. You need to figure that out. Yes, I know, I am just getting a little ahead of myself. I DO really appreciate all of the help. I know I can do this, just want to get as much info as possible.About all we can do is tell you want you can and can't do.

I didn't mention it in my first response, but your post is a bit confusing. Yes, Sorry, I will try to add more info as I know everyones situations can be very different..

The homestead exemption only protects you from other unsecured creditors. It doesn't provide any protection against mortgages and HELOC's. As such, you won't be able to do anything with those loans, regardless of you not reaffirming. The only issues remaining are (a) are the credit card judgments been property filed as judgment liensyes, I got copies at the courthouse. One is a WRIT OF FIFA in the State Court Civil (Target, with the lawyers name also,for around 9k), and the other is Magistrate Court Civil (Advantage Assets/Citibank for around $5,000.00 (if yes, you will need to do a Motion to Avoid those Liens), and the car. Unfortunately, you are combating what is known as a cross-collateralization agreement. Here, exemptions come into play, is the car 100% exempt, if yes, then you would file a a 522(f) motion to avoid the lien on the car.

So, the issue with the car. It is 100% exempt. It is a 2003 auto worth maybe 2-3k, so we exempted the whole thing. This is where I am still a bit confused. I understand the Cross Collateralization, which is why they wouldn't give us the title after paying the car loan off because we owe them 8K on a credit card. But, when the bk is discharged, I assume the credit card will be also? So at that point would they be obligated to give us the title to the car, or will that only be possible if we file a motion to avoid the lien? Do I have to do this before discharge? Oh, when my husband when to the tag office, they told him there was a lien against the car. I didn't ask him to get a copy, and now I am wondering if the lien was because of the judgements against me, or from the Credit union. Does it matter?

[moonbeam9209]

I also thought I should mention that we only have a first mtg loan on our home. We received a HAMP mod over a year ago, and originally we stated we wanted to re affirm, but we are not planning that now. We owe 19k and its worth around 150k

[HHM]

The issue with the car is this...although a underlying debt is discharged...a bankruptcy does not eliminate "security interests" (which is what this is). So, you need to take the extra step assuming you can. I made a slight mistake in my prior posts.

you will need to start googling these things.
1. For the judicial liens, you will do a combined, 506 and 522(f) motion. 506 is a motion to value a secured interest. This is how you get the judgments off your house. The house is already upside down, so these judgments are worth zero. 522(f) is a Motion to Avoid Lien on certain personal property. This is how you get rid of the judgment liens on everything else.
2. For the car, you would do a 506 motion, Motion to Value.

[justbroke]

I didn't want to get too involved in this thread because it is getting into the litigation portion of a bankruptcy case. I do have some sample documents in my blog area. You can also search the internet and I would highly suggest check your OWN local District Court's website for any standard pleadings! We are lucky in that many of our Judges in Florida have "practice guides" and they actually have sample pleadings and orders contained therein.

[moonbeam9209]

I also thought I should mention that we only have a first mtg loan on our home. We received a HAMP mod over a year ago, and originally we stated we wanted to re affirm, but we are not planning that now. We owe 19k and its worth around 150k

Oops, I meant to say we owe 194K

[moonbeam9209]

So if I do a 506 Motion to Value the car, does this mean I intend on paying the actual value of the car instead of the 8000.00 owed to the credit union to keep the car?

We originally paid them 12k for the car, and after paying it off we would have to pay the current value to get the title?

So we would not automatically receive the title just because the Cross collateralized credit card debt was discharged in bankruptcy?

Just covering all the bases here, considering the fact that it has 120k miles, is a 2003 Hyundai, we hit a deer with it last fall, and my husband did the body work himself, and because of the extensive damage underneath from the deer, we no longer have a/c in the car, unless we want to invest 800.00 bucks to fix it. If we can just keep it without the title, I guess we can just run it into the ground and start saving up for a newer one.....

[HHM]

So we would not automatically receive the title just because the Cross collateralized credit card debt was discharged in bankruptcy?

After 11 posts, you finally got something correct

Here is the thing, YOU made the choice to proceed without the help of an attorney, and your case is apparently not that simple. This forum, the internet in general, are not a substitute for having someone representing, on the ground, in your district. There are a few things that can be done about the car, be we cannot actually walk you through it. Sorry.

[helpmeout]

Also, why did we use the exemption for our home? It seems redundant if we aren't going to reaffirm anyways.

There was allegedly equity in the house I surrendered. I used the equity exemption. Should the Trustee have determined that it was worth it to try and sell the house and actually got money for it over the mortgage, she would have had to pay me my exempted portion. If I hadn't used the exemption, I would have been out of luck. I also wouldn't have been able to stay in the house rent free for as long as I did as the Trustee definitely would have tried to sell the house had I not used my exemption.

As it is, it was recently sold for considerable less than what was owed on it. But it was also a fixer upper that had been vacant for over a year.

[moonbeam9209]

After 11 posts, you finally got something correct Wow, who peed in your cornflakes? Just because you put a smiley after a remark like that doesn't make it sound any less hostile. I came here for help and advice, that's all. That, I thought is what this forum was about.

Here is the thing, YOU made the choice to proceed without the help of an attorney, and your case is apparently not that simpleYes, that's correct, that's why I am here. I did not originally think it was a big issue about the car, nor do I care. We can just keep driving it into the ground, I am not going to pay a lawyer a thousand bucks to MAYBE help keep something of very little value. We exempted my car which is newer and more valuable. I have been trying to convince my husband to get a newer car after bk is discharged anyways. This Hyundai can just sit in the driveway and they can come get it if they want. . This forum, the internet in general, are not a substitute for having someone representing, on the ground, in your district. There are a few things that can be done about the car, be we cannot actually walk you through it. Just trying to get educated about what I MAY be able to do myself, I don't need you to walk me through it.Sorry.

I have always been very thankful and polite when asking you all questions. So much for the old adage "no such thing as a stupid question". I appreciate all of the advice thus far, but I wont bother you anymore. This is nerve wracking and stressful enough, without having to feel stupid on top of it all.

[moonbeam9209]

There was allegedly equity in the house I surrendered. I used the equity exemption. Should the Trustee have determined that it was worth it to try and sell the house and actually got money for it over the mortgage, she would have had to pay me my exempted portion. If I hadn't used the exemption, I would have been out of luck. I also wouldn't have been able to stay in the house rent free for as long as I did as the Trustee definitely would have tried to sell the house had I not used my exemption.

As it is, it was recently sold for considerable less than what was owed on it. But it was also a fixer upper that had been vacant for over a year.

Thanks, that makes sense, I didn't think of it that way. When we originally filed, I never thought that we might not reaffirm. Especially since we had just gotten a HAMP mod and had our payment lowered. Until we researched and got more educated between here and the trustee's advice, it made no sense to reaffirm.