Home Foreclosed, ex won't leave

[chuggypot]

The last payment my ex made to the mortgage company was Dec. 08. We had a long and difficult divorce, which was eventually bifurcated. We both filed Ch. 7 BK, hers was discharged in Dec. 09, mine Jane 10.

I have since remarried and my wife and I would like to refinance our current home, so we are on the loan together. I'm in California, if it makes any difference.

Now, my ex still lives in the home and as I stated has not made a payment in over 3 years. She refuses to move out and is sueing the mortgage company, for what I am unsure.

The house was auctioned off in May 2011. From her BK records, it shows she was served Notice to Vacate property in June 2011. Unlawful Detainer was served in September 2011. In November she converted her Ch7 to Ch13. December, the mortgage company (who bought the house back at the auction) was granted a relief from stay.

January 2012, I get a phone call from mortgage company asking if I'm interested in a cash for keys deal. This is what prompted me to look up her case in pacer. It also shows that when she is being served her legal paperwork, they include my name along with the names of our 2 grown children (who don't live there and were never on the loan to begin with).

My wife is concerned this will effect our ability to refinance our home. Should I be doing something to do to protect myself? Also, in our divorce settlement it came out that she owes me about 12 grand; this is not showing anywhere in her current BK, I'm sure she has no intention of paying.

Am I considered a creditor to her? Is there a way I can inform the trustee that I would like to be included in her plan payments? She and I no longer speak to each other and she probably wouldn't tell me the truth even if we did.

[Drazil65]

Wow, have you talked to an attorney yet? I think that would be my first course of action for sure. I think if you can prove (with your divorce papers maybe) that she owes this money to you why not become a creditor on her chp 13 its not like you will ruin the relationship or anything right? Good Luck!

[helpmeout]

The fact that the home was foreclosed and that your ex is fighting to stay is irrelevant.

What is relevant is that you were not served notice of her BK so that you could file a claim. The problem is your BK. Did you exempt the money that your ex owes you? If not, your BK Trustee is the one who will get the money unless it is a support obligation.

[df04527]

Ouch....

[Flamingo]

What will affect you refinancing your home (I am assuming it was your new wife's home when you remarried) is if you will be on the loan because your Chapter 7 will be an issue as it will not be off your credit reports until 10 years after the date of its filing. You being on other mortgage paperwork, etc. for your former home may or may not be showing up on your credit reports and you need to pull all three of them and review them to see what may be going on. If I were you, I would be on the phone right now making an appointment with an attorney as to what is going on with that house, the money she's owes you from your previous divorce and also that your children are being included on some of that paperwork - I am assuming they are adults so I would also notify them as something could affect their credit also out of all this. Best of luck.

[mountanddo]

Did you exempt the money that your ex owes you? If not, your BK Trustee is the one who will get the money unless it is a support obligation.

This is true. My ex owed me 5k after our divorce and I had to agree to turn it over to the trustee if I received it. I never did and never thought I would.

[AngelinaCat]

Is there a way I can inform the trustee that I would like to be included in her plan payments? She and I no longer speak to each other and she probably wouldn't tell me the truth even if we did.

There is a motion you can make to the court to be notified of any developments in her case. I forget the name of it, but I will look for it. You can also write a letter directly to her trustee detailing all of this. Meanwhile, do as Flamingo suggested and get on the telephone to an attorney.

It is called 'Request for Special Notice'. Here is a link to a form for the Central Court of California, to give you and idea of what to look for:

http://www.courts.ca.gov/documents/de154.pdf

This is intended only to be a guide.

[AngelinaCatHub]

Also, depending on how the award of 12K is worded, it may survive her bk. If this was a Court ordered award in some way. Depends on the form so talk to the attorney about that. As far as her not leaving, don't worry, the Sheriff will carry her out if she ignores a writ of eviction. 'Hub

[chuggypot]

Thank you all for your replies. Our settlement was just finalized in July 2011 and in September 2011, she tried to appeal but was denied; so the 12G was not included in my Ch7 BK. I keep regular tabs on all 3 of my credit scores and the mortgage shows IIB. I would inform my kids, but when she filed her original Ch7 that was discharged in Dec. 09 I found out that she had credit cards with our kids and left them with the debt. When I told them about it, they were not happy and it was a more "kill the messenger" type of thing, so I am unsure if I should take this road again. I will make an appointment to see an attorney, but should it be my former BK attorney? Thank you for the request for special notice, I will look into that as well. As for the sheriff booting her out, is this postponed because she is sueing the mortgage company? She claims they illegally sold the home?!? I mean it's been almost a year since the auction.

[LadyInTheRed]

I'm confused. You say that her Chap 7 was discharged in 2009. You then say that her 7 was converted to a 13. Was her '09 discharge revoked? Or did she file a second 7 which was later converted to a 13 (which would have been because it was too soon to file another 7)? On what date did she convert to a 13? Did you receive notice of the 13?

[AngelinaCat]

After reading LITR's questions, I went back and re-read the original post. Now I'm confused. I also broke up that one long paragraph into several to make it easier to read. Is the ex-wife currently in a Ch13 BK? That is what it sounds (reads) like. If she is in a Ch13, how long is the plan?

If she owes you 12K from the divorce settlement, the trustee needs to be informed of that. And the divorce settlement would be a priority claim.

[chuggypot]

Sorry for the confusion. Yes, the ex wife converted her Ch.7 BK (which was discharged in Dec. 09) to Ch.13 January of this year, so yes she is currently again in BK.

The original Ch.7 was not revoked. Also, I did not receive notice of the 13. I believe she converted from 7 to 13, because she couldn't discharge a student loan of hers.

Also, to add to the confusion she originally tried to convert from Ch7 to 13 November 2011, but the trustee closed it, for non payment. She filed again in January. The plan from November was a 5 year plan and the current Ch13 does not yet have a plan included, but I am assuming it will be another 5 yr plan.

[AngelinaCat]

If the Ch7 was discharged in 2009 and then converted to at Ch13, but the trustee closed it for non-payment, this sounds like it was/is an Asset case. Is that so, and is the Asset in question, this house?

Also a student loan is not dischargable in either chapter unless she is able to prove a very real hardship in repayment.

[LadyInTheRed]

So, it sounds like your ex-wife is now in a Chap 13 that was an entirely new case filed in January 2012. She has received no BK discharge since your divorce was finalized. Right?

Even if you didn't get notice, you know about her BK. You need to file a proof of claim in her current case. I suggest you contact your BK attorney for help. It is possible he only represent's debtors and won't be willng to represent you as a creditor. If so, ask him for a referral.