Question as a creditor and in a Chapter 11 case

[womanonfire]

I am a creditor in a Chapter 11 case and I can't seem to find any cases whereby a debtor violated their own plan. I would like to file a motion to enforce and sanctions plus costs of filing. Can anyone help? I will gladly pay for the title 11 section research and a review of my motion. I can't get any local attorneys to respond.

Thanks in advance!

[justbroke]

Is the debtor an individual in a confirmed individual Chapter 11? You may find that not may local attorneys will deal with Chapter 11 consumer cases. You may be able to find a firm that handles commercial bankruptcies. Look at the Chapter 11 Plan of Reorganization as it may have provisions related to handling a default. I don't think they use a model plan in Chapter 11s so if this is an individual debtor, it may not be there.

Unfortunately, I cannot help. I would continue to seek competent Chapter 11 expertise. Nevertheless, I would assume that this would be no different than a Chapter 13 motion to dismiss. I don't know how you enforce a voluntary plan other than move for dismissal. But there may be traps.

Definitely reach out to commercial bankruptcy firms to see if you can pay them to look. I don't think many will ghost-write for you (do the research and review your motion for $$$).

[despritfreya]

The reason you can't find anything is that there probably is nothing to find (other than case law regarding seeking a conversion after the Chapter 11 Plan is Confirmed).

You need to review the Order Confirming. It may have a default provision that outlines what a creditor can and cannot do upon default by the debtor. All of my Chapter 11 Plans/Orders have such a provision.

Des.

[womanonfire]

The reason you can't find anything is that there probably is nothing to find (other than case law regarding seeking a conversion after the Chapter 11 Plan is Confirmed).

You need to review the Order Confirming. It may have a default provision that outlines what a creditor can and cannot do upon default by the debtor. All of my Chapter 11 Plans/Orders have such a provision.

Des.

I did a search on the document for "default" on the order confirming the plan and didn't see anything regarding creditor rights incase of a default. I've also had three Corona's after yard work so it may be me in this case. Here is a link: file:///C:/Users/traci/Downloads/1404%20-%20Confirmation%20Order.pdf

They specifically violated Section 4.6 of the plan by transferring my loan to the foreward purchaser before corrections were made.

"Treatment: Except to the extent that a holder of an Allowed Consumer Creditor Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of an Allowed Consumer Creditor Claim, each such holder thereof shall receive such holder’s Pro Rata share of the Consumer Creditor Net Proceeds until all Allowed Consumer Creditor Claims are satisfied in full; provided, that holders of Allowed 363(o) Claims shall be satisfied in full in Cash from the Consumer Creditor Net Proceeds or in accordance with Section 5.6(d) of the Plan, or through corrections implemented by the Debtors in coordination with the Forward Stalking Horse Purchaser, Reverse Stalking Horse Purchaser, or Reorganized RMS, as applicable, before loans are transferred to the Forward Stalking Horse Purchaser, Reverse Stalking Horse Purchaser, or Reorganized RMS, prior to distributions to holders of remaining Allowed Consumer Creditor Claims."

I will search again. Do you think $250 per hour is reasonable payment for review of a motion? I think it is pretty straightforward; they violated the plan and I personally believe that no one is filing the motions because many of the consumer attorney's were probably working on contingency. It's slim pickings for all consumer's involved.

[despritfreya]

Unfortunately I could not get the link to work but I assumed this was the Ditech case. The Confirmation Order/Third Amended Plan is easy to find on the Internet. What is not easy, is spending time to figure out what it really states.

Nothing is straightforward and I agree that it is slim pickings for consumers. My guess is that you have no right to assert anything as I am sure the Order Confirming has shut all consumers out. . . Period.

I do admit that the language of the Order/Third Amended Plan is convoluted at best. I can tell you that I would have to spend a lot of time figuring out what it means and whether or not your loan could be transferred before Class 6 is paid. My gut tells me it can and trying to find a way out of paying your loan (if that is what you are looking into) is no different than the "show me the note" type argument that many consumers have tried (and failed) to assert.

If you want to really understand, you have to digest, not only the Third Amended Plan, but also the Order Confirming and any other Pleading referenced in that Order. The Order Confirming may or may not change some of the provisions of the Plan. As it relates to the Order itself, look at paragraphs 4, 5, 18, 23, 53, 57, and 58, just to name a few. I cannot tell you if those paragraphs are really important but they jumped out at me in my 15 minute review. To the extent that the Order revises what is stated in the Plan, the Order controls.

As JB suggests, you probably should hire a qualified attorney who can spend the time determining what treatment applies to you. This was a very large Chapter 11 and the nuances of the Order/Plan are complex. If you really want to get to the bottom of it you need to work with an attorney who handles creditors' rights in complex Chapter 11 cases. $250.00 per hour for such assistance is not going to cut it.

Sorry I cannot be of more assistance but like I said, it is no "quick" thing to review such a large Chapter 11.

Des.

[womanonfire]

Thank you so much for your input Despritfreya. It might be cheaper to file the motion ($60 to file I think?) and see what comes from it. I just do not know what Title 11 code covers when a debtor violates their own plan and can't seem to find the code for it or a similar case to use.

Incidentally, it is approaching three years since I have made a payment on my mortgage and being in GA, I can't figure out why they will not just foreclose. I do not have open litigation pending against forward servicer yet but I did add Fannie Mae to amended complaint and that has not been ruled upon yet. Ditech was of course, dismissed. I am not trying to find a way to avoid paying the loan, I stopped paying it to use it as leverage and to get in front of the judge faster. That didn't work. At this point, I will likely need to modify the loan but their modification department will not speak to me. They say they will have the legal team call but they never do. And I just forked out $850 to get title issues fixed. It was a Countrywide loan and there are loads of issues with it. In fact, it was part of the billion dollar settlement with Fannie Mae.

I can prove that the principle balance is incorrect and escrow is incorrect because payments were misapplied and I have paid more interest as a result. The new servicer has already violated RESPA, the FCRA and the FDCPA and I am working on adding them as a defendant as I also write this. Hopefully it will all settle soon and I can get back to life without litigation.