Florida question regarding ch 7 and letter from investment co.

[bluey2]

Filed in middle district SW Fl. on 10/30/12. 341 on 12/4/12.have first and second mortgage. First 92k and second 14k. my att. is trying to get the second stripped because of no equity due to assesed value is 93k under the homestead exemption. So a week ago I get a letter form an investment company saying they have entered into to agreement to purchase my home from bk court..??? I sent a copy to my att. and she comes back with a reply that she will look into it. Now she replies today that it is legitimate and she sent a copy to trustee. Trustee assistant replied that" yes, they are working with this company, but not sure if we have agreed yet to sell to him. you will be notified when and if we approve the sale..omg. So I send a reply to my att. with a link to a website I found posted on a thread here, about trustees selling debtors property, and she replies with " I think.....I figured it out" I have to amend something. She then sends me an amended form that originally had my second mortgage as surrendered, and now it says.. other..avoid lien using U.S.C. 522(f). The first mortgage is with Seterus(sold to by BOA) and the second is still with BOA.I am freaking out here! Can anyone shed some light on what just happened?

[tobee43]

welcome to the forum bluey2.

i'm sorry to hear that you are having this problem. first, i must ask you, are you an no asset or asset 7?

can you see the petition, (you should have gotten a copy of it) what does it say on the petition on schedule A (real property) about which mortgage is listed...and what does it say on your "chapter 7 individual debtors statement of intent"? that is found after your list of creditors.

were you planning on staying and paying? or trying to retain the house? or surrendering?

[bluey2]

Mine is a no asset. On schedule A-Real property listed is - my property address and current value of 92,499, then amount of secured claim is- 107,900(which is the total of both first and second). On the statement of intent, (before it was amended today), the original says that I am surrendering the 2nd, (not claimed as exempt), and I am reaffirming the debt for the 1st, (claimed as exempt), It was amended today(she sent me a copy and she said she filed it) and the box for "other" is now checked and beside it says- avoid lien using 11 U.S.C.522(f) and the "surrender" box is unchecked and the "retain' box is checked now. I am current on all payments and want to stay and pay. Thanks for the reply

[justbroke]

It reads as though the Trustee surmised -- albeit with actual evidence -- that you were surrendering your home and decided to sell it! Your attorney will amend your forms and get back with the Trustee and say it was a scrivener's error. If it comes to it, your attorney may need to motion the court and appear before the judge to fix this issue.

I'm actually taken aback a little. I have never heard of avoiding a "consensual" lien under 11 USC 522(f). It's usually under 11 USC 506(a) or 506(d). What type of attorney is this? Is this an actual BK attorney or an attorney new to BK?

If your attorney is trying to avoid the lien in a Chapter 7 because it is wholly unsecured, then your attorney needs to a.) realize that it may be difficult in the Southern District to do so (only the Middle District has set up the means and negative noticing to do this), and b.) look at the McNeal case... https://www.rtlaw.com/resources/arti...s-%20Chapter-7.

[bluey2]

Did I say Southern District.. I'm sorry, I am in Ft Myers, which is Middle District, and No He is a BK attorney I found by online reviews, he actually had around 70 mostly positive reviews, but I am beginning to doubt those are legit. I have laid eyes on him twice, the last time was when I paid in him full. Since then, I am dealing with the paralegal exclusively. Get this, at my 341 meeting, nobody showed to represent me! yea, thank goodness another attorney offered to sit in with me, or I would've had to delay/reschedule/prolong this thing. I also believe the only reason she caught the mistake was, I came on here and found a link to send her regarding a similar issue. Thanks for the reply justbroke

[justbroke]

I would certainly mention McNeal, because the Middle District actually has negative noticing for a Motion to Determine Secured Status and Strip Lien on Real Property in Chapter 7 cases! Your attorney should be filing that motion, and the motion is under 11 USC 506(a)... not 522(f)!

http://www.flmb.uscourts.gov/negativenotice/list.pdf

[df04527]

Darn that is scary .. Sounds like your attorney is not very informed. Thank goodness you found this board!

[bluey2]

I have emailed those links to the paralegal with additional comments from myself regarding the 522(f) etc. sheesh..one must look out for ones self for sure and not trust blindly..thanks for all the replies.

[TBA]

Keep us in the loop on this. I am also in process of ch7 stripping second as unsecured in the middle dist. If we are successful, i will share all of the details, but we just finally retained an attorney i feel confident with.

[tobee43]

jb has really come up with excellent advise here. blue, i wish you the best on this. you need to really be on your atty and have him straighten this mess out.

[bluey2]

I plan on emailing her/him often, and I am going to post any info on the ongoing process here. Thanks again jb and tobee..

[tobee43]

you're most welcome! jb did all the work LOL!!!

[bluey2]

So..after I emailed those links to the paralegal, I hear nothing..yesterday I get a copy of the motion that was filed by my attorney, which says.."Motion to determine secured status of BOA equity line of credit and strip lien effective upon discharge and request for attorneys fees."..and it has a section that was sent to BOA," Notice of opportunity to object and for hearing", pursuant to Local Rule 2002-4..etc.......So it seems to me that she actually realized this had to be done after reading the links that justbroke provided me, which is the ones I sent to her. Scares me to think what would've happened if she hadn't read those links(if she did), and if it is going to help in time. Any thoughts?

[justbroke]

You could have re-opened your case to do the same thing. Luckily, you're in the Middle District of Florida where they allow the attorneys to do this by "negative" noticing. That means that if the bank doesn't respond to the Motion (object to the motion), then, after 30 days, your attorney can just file an Order Granting the Motion and you are done. In most cases, the banks do not respond.

In any event, here's to hoping that the bank doesn't even respond. Since the 2nd is only $14K, it probably REALLY isn't worth it for the 2nd lienholder to respond and to just let your attorney file a default order granting the lien strip.

[bluey2]

Thanks jb. and I sure hope they do not respond and I will be untied from the second. I credit you and this forum for helping educate me and being able to educate my paralegal, because she obviously listened and took the advice you provided through me, although Im sure she will not confess to that ever! I will post any updates. I am now 27 days post 341 hearing.