Help! How to delay foreclosure?

[novayalife]

I live in a non judicial state and need some tips that would perhaps stall foreclosure a bit to give me more time to save money. "Produce the note" will most likely not work since its non judicial here. I am 3 months past due on the mortgage and have just filed bankruptcy. Where do I go from here?

[dingdong]

Your BK will effectively stall foreclosure until/if the lender files a motion for relief from stay.

What state do you live in.

Have you received a notice of default from the lender?
Woops, just saw potato state, so Idaho?

[LuciluS]

DingDong:

Our Attorney told us we had to be Current on our Mortgage payment in order to file a Chapter 7. Huh?

Of course, he has given me wrong information before regarding borrowing money from a relative without a Note. Handshake & don't report it.

I've got a lot of Researching to do on that situation and Dang it, I've already paid him $1,300.

Luci

[dingdong]

Depending on your income level and means test, your attorney may know how your particular court/judge/trustee stands on using the mortgage payment as an allowable expense in passing the means test and qualifying for a CH7

Are you over median income in your state?

Also , would you pass the means test w/o your mortgage payment?

Your attorney probably knows what "flys" in your district, and perhaps he is ensuring that you will qualify for a 7 by continuing to pay your mortgage.

Each district seems to have their own stance on using a mortgage payment on a home that is being surrendered in the BK in the means test.


For example in my district, you can be in FC, surrendering the home, and still use the mortgage payment as an allowable expense.

About 3 hours away , in the Central Valley/Fresno area, their have been challenges by the UST that have been allowed for presumption of abuse when a debtor used the mortgage payment in the means test but had indicated they were surrendering the home. The court sided w the UST and the debtor had to convert to a 13 or dismiss.

Doesn't seem fair, I know, that some debtors can and some can't but I suppose that is where ideology can come into play and interpretation of the code is left up to the courts as their has ( as far as I know) been no binding opinion on this matter in the courts.

So, YMMV, depending on where you file.

[lrprn]

Our Attorney told us we had to be Current on our Mortgage payment in order to file a Chapter 7. Huh?

You have to be current on your mortage payments on filing day only if you intend to keep the house after filing. If you plan to surrender the house back to the lender as a part of your bk, then being in arrears on filing day is fine.

[dingdong]

While that may be true, there have been cases challenged by the UST where a debtor was itent on surrendering the home, used the mortgage payment as an expense on the means test and the judge ruled that the mortgage payment was not an allowable expense in the means test and there schedule and ruled with the UST stating that if the debtor was surrendering the home, it would effectively free up income to allow the debtor to pay creditors in a Ch 13. since they weren't paying their mortgage.


I guess it would depend on how large a mortgage payment you have and if that mortgage payment is close to rents in the area where you live.

You would need to question your attorney as to why and factors such as whether you intend to keep your home are of course important


Here is a published opioion Debtstinks found that illustrates the point and what could possibly happen. If the link isn't clickable, cut and paste it into your browser.

http://www.caeb.uscourts.gov/data/cortinfo/opinions/publishedopinions/lee/in%20re%20baeza,%2008-14555,%20dc%20no.%20ust-1%20(december%2029,%202008).pdf

[StartingOver08]

If you are surrendering your home and behind on your payment AND you use the rental amount allowed for your district and you are still negative - you won't be pushed into a Ch 13.

The problem arises if you show a positive disposable income of $166/mth or more.

[NeedNewStart]

Similar question here...

I have a home in Nevada. I had to move to Oregon last fall. I decided to rent the house out to try to keep it current. I am no longer able to afford the house and am fine with loosing it. My first mortgage payment is $1500 and my second is $828. I get $1000 from my rental.

One attorney that I met with told me to just use the $1000 to pay the first every other month. The other told me to set up a separate account and keep the money from the rental there and surrender it when I file BK.

What are the risks/benefits of each? Should I just let the renters stay there for free or kick them out?

[novayalife]

Yes you guessed it..IDAHO! Well i just looked through my paperwork and i recieved mortgage in default 3 months and states I have 30 days from 3/1 to reinstate or foreclosure proceeding begin. Question is, if I just filed ch 7 two weeks ago, how long does this stall the proceedings and where do I stand?

[dingdong]

Did they start publishing yet? ( the trustee sale notices)


If they haven't I am fairly certain they will have to wait until they either are granted a MFRFS ( if they file the motion) or until your discharge is over to start publishing, which I believe in Idaho is 4 weeks ( correct)?

So based on your states publishing requirements, ( if 4 weeks) and lets say hypothetically it takes 4-6 weeks to obtain relief, then they have to start publshing again which will probably take a couple of weeks to get started, then another 4 weeks of publishing, then the TS then they have to record the deed, then eviction notice.

But a lot depends on how fast the lender files a motion for relief from stay, how quickly the MFRFS hearing is calendered and then how organized the forclosure company/servicer is with moving on with the FC and starting the process.


I believe I read Idaho is around 150 days for FC, so 5 months-ish altogether with the unknown factor of how fast your lender/servicer moves to FC.

Some people stay in their homes over a year.

You would be most likely pretty safe to at least have 6 weeks once the publishing starts on the TS.

Course, I am not an attorney nor a Real Estate pro, or have knowledge on Idaho law.

So I like to include my typical caveat of I may be entirely wrong.

[novayalife]

Ok but I will receive notices for everything, correct?

[dingdong]

If they do things like they do here in California, they will prominantly tape it to your front door when they start publishing the TS, plus notices in the paper under legal notice section once a week for 4 weeks. The notice on the door only came once here.

I rented a home that was foreclosed, so don't know about mailings, but I would assume they mail a notice to the borrower.