Chapter 13 Filing and Adversary Proceeding filed against lender for foreclosure fraud

[renemax]

Hello,

I filed a chapter 13 followed by an adversary proceeding against my lender for foreclosure fraud (invalid assignments, break in chain of title, etc.). The other side has filed a motion to lift the stay based on the fact that they haven't received any plan payments. However, I filed an application to modify my plan to remove all mortgage payments as a result of the adversary proceeding. To date, I haven't received a response. I have been told that I am likely to lose at the hearing re the motion to lift stay because the lender hasn't received any payments. Is this true? I am pro per.

Thanks,
RM

[LadyInTheRed]

Yes, a secured creditor can get relief from stay if the debt is in default and adequate protection payments are not made between filing and confirmation.

It's this kind of detail that makes filing a pro se Chap 13 very risky.

[renemax]

Thank you for the reply.

Should I voluntarily dismiss and re-file right away with an attorney?

RM

[justbroke]

I filed a chapter 13 followed by an adversary proceeding against my lender for foreclosure fraud (invalid assignments, break in chain of title, etc.). The other side has filed a motion to lift the stay based on the fact that they haven't received any plan payments. However, I filed an application to modify my plan to remove all mortgage payments as a result of the adversary proceeding. To date, I haven't received a response. I have been told that I am likely to lose at the hearing re the motion to lift stay because the lender hasn't received any payments. Is this true? I am pro per.

I'll ask this first, and then move on to the meat of your post. Just what are you trying to do? Get a free house? It is not likely that you are going to win the AP and you could end up owing money to the plaintiff -- although owing them fees probably won't be granted.

Okay, so you are in pro per (pro se) and filed a complaint to determine secured status of the property, and claiming that this is foreclosure fraud? So, first, the thing the judge will look at is jurisdiction and venue. In your complaint, what did you list as the reasons for jurisdiction and venue? I mean, what part of 28 USC 1334 and under what part of the core proceeding statutes does it fall under 28 USC 157? You may have procedural issues right from the beginning. I am just trying to make you aware of them. (And yes, I have litigated against large creditors as contested matters and through the complaint (AP) process.)

The lender doesn't need much of a barrier for lifting the stay. If you aren't providing for the property in the plan, the stay would be lifted as a matter of "adequate protection" if not for the fact that they simply aren't provided for in the plan. When did they move for relief? Before or after you modified the plan and/or filed the complaint (AP)?

It is highly unlikely that the judge wants to hear anything about any foreclosure or the mortgage on a property that you yourself want to not be part of the Chapter 13 Plan of Reorganization. In other words, you want protection for something that would be protected if you were actually attempting to reorganize and re-instate the terms of the mortgage, but you don't want to pay. That's a very difficult thing to circumnavigate while trying to ask for the court's help. Think of it this way.. "court protect me from them" while you're saying "court, I'm not paying them a dime".

It would be interesting how the court rules on the Motion to Modify Confirmed Plan and the Motion for Relief From Stay (RFS). When are your hearings? Did the defendant file a response to the complaint? Did you serve it properly on them? Now, if I were the defendant (creditor), I would easily say this... a.) the plaintiff/debtor actually scheduled us on the petition and the Plan of reorganization, b.) that the plaintiff asked to modify the terms of a confirmed plan to remove us, c.) that the plaintiff/debtor now seeks to say that we are not a party to this debt, and d.) that the plaintiff/debtor can't have it both ways. The creditor may try to evoke estoppel saying that you already acknowledged that they own the debt. The court would kick it to State non-bankruptcy court just for those facts alone.

Too many questions. However, my feeling is that the judge will see this for what it is -- a delay tactic -- and tell you that s/he is granting the RFS because you are not providing to cure the default in the plan. As for the impact on the AP, that should be interesting.

If you dismiss and re-file, you'll LOSE the automatic stay. Plus, since there is an RFS pending, they won't let the case close until that hearing is held! You have what we call a procedural issue!

[despritfreya]

Gotta love JB's "on the mark" response. It's enough to scare off the hardiest of vexatious litigants.

As we all know, OP will eventually lose the house. But, until then, he/she gets to live rent free but for any HOA, if there is one.

Some day, as JB points out, these "homeowners" will get hit with sanctions based on willful and malicious conduct, which, will not be dischargeable in a bk. How do I know this. . . because more and more attnys who bring these kinds of actions are getting hit with sanctions since they should know better. Eventually it will trickle down to the pro se litigants.

Des.

[Pandora]

so I'm assuming this is akin to "produce the note"...but - question:

Even as a pro-se Ch. 13 filer - how could this even get as far as it has using an AP? I know when we filed our AP for stay violations - we were subject to paying the opposing counsel's fees (we didnt of course, but...that option was there should the judge allow it). To me - that's risky if the same rules apply in the OP's AP filing, especially since we all know "produce the note" doesnt work.

[justbroke]

Pandora, that's exactly what I eluded to and Des said "should" happen. Rule 11 (or FRBP Rule 9011) sanctions can be levied against attorneys and pro se litigants alike. Judges do not like to waste time, especially in the Bankruptcy court. My thoughts are that the poster is just trying to learn another way to delay the inevitable... a foreclosure.

There are some Judges that have entertained debtors (debtor attorneys) on this matter. While most just fight the RFS, some may use the complaint process (AP) to determine the extent and validity of a lien. In a Chapter 13 context, however, I hope that the person understands that if the lien is a nullity, they may lose it to creditors anyhow unless they're in a State like Florida where the homestead exemption is very nice.

[Pandora]

Thanks JB - just wanted to ensure i was understanding correctly re; your comment of possibly owing fees.

Been a slow brain morning for me today :P

[LadyInTheRed]

Should I voluntarily dismiss and re-file right away with an attorney?

You probably would have to dismiss in order to get an attorney to take your case. Before you do that, consult with a couple of attorneys to determine what your next move should be. You need make sure you understand the consequences of re-filing right after dismissal.

[despritfreya]

Lady,

A voluntary dismissal would not work because a Motion for Relief From Stay was filed. Under 11 USC 109(g)(2), OP would be barred from refiling for 180 days if he/she voluntarily seeks to dismiss the current Chapter 13.

Des.

[overspent]

Hello,

I filed a chapter 13 followed by an adversary proceeding against my lender for foreclosure fraud (invalid assignments, break in chain of title, etc.). The other side has filed a motion to lift the stay based on the fact that they haven't received any plan payments. However, I filed an application to modify my plan to remove all mortgage payments as a result of the adversary proceeding. To date, I haven't received a response. I have been told that I am likely to lose at the hearing re the motion to lift stay because the lender hasn't received any payments. Is this true? I am pro per.

Thanks,
RM

I tried similar strategy back in October 2010 with the help of an attorney. It turned out the local BK judge did not want to deal with foreclosure issue at all. They ignored the fact that the assignment was fradulent, chain of titlte was broken and sided with the creditor attorney. However, it did buy me sufficient time since homeowners in Oregon started winning lawsuits and BOfA had to rescinded a bunch of NODs for a while. They filed a second NOD in Feb 2012. I had to sue them to stop the scheduled sale in July. After I filed they rescinded the lawsuit the second time. Oregon just passed a mandatory mediation law that requires the so-called lender to show up at the meeting with proof of loan ownership. In response, the banks stop all non-judicial foreclosures and started foreclosing judicially. I am just waiting for my turn in court.