Default Order and Stipulation Issue

[UpsideDownMI]

I signed a stipulation agreement with my lender to lien strip my 2nd mortgage. I filed the agreement and the proposed order with the court earlier this week, but the order has still not been signed by the judge as he is out until sometime next week. In the mean time, I received notice that no party has responded in my AP to strip the same 2nd and I have until the 11/18 to enter a proposed default order.

Here is my issue. I would rather have the stipulation order than the default order as I feel that it is stronger, since both parties consent to the strip. However, I do not want to risk finding out that there is an issue with the stipulation and order (for whatever reason) after the deadline to enter a default order has passed. Also, per court rule my plan can not be confirmed without an order stripping my 2nd mortgage. If I don't get this done in the next 2 weeks I will have my confirmation delayed, which in my district will require me to pay more payments that do not apply to my plan length.

I have (3) options to resolve this and was hoping for some feedback. Option 1 is to not do anything and wait for the stipulation order to be signed by the judge. Option 2 is to file a motion to extend the deadline to enter a default order in my AP to allow time for the stipulation to be signed. Option 3 is to file a proposed default order while I am waiting for the stipulation order to be signed. With option 3, I figure the judge would just throw out the default order if he is going to sign the stipulation. I am leaning towards option 2, but like I said above, I am hoping for some feedback. Thanks.

[HHM]

Option 1.

The only party in interest is the lender, you have a stipulated order. You don't really need to do anything. You cannot control when the judge signs the order.

You could do option 2 if you wanted, but it really is moot. Did the mortgage lender "appear" in your bankruptcy.

A true AP get's its own case number. Did you file the AP by complaint or motion. If you did the AP by complaint, the AP would have its own case number. Did you file the Stipulated order under the AP's case number or your BK case number. You "should" have filed the Stipulated Order under the AP's case number. By doing so, this issue should be moot.

[UpsideDownMI]

Option 1.

The only party in interest is the lender, you have a stipulated order. You don't really need to do anything. You cannot control when the judge signs the order.

You could do option 2 if you wanted, but it really is moot. Did the mortgage lender "appear" in your bankruptcy.

A true AP get's its own case number. Did you file the AP by complaint or motion. If you did the AP by complaint, the AP would have its own case number. Did you file the Stipulated order under the AP's case number or your BK case number. You "should" have filed the Stipulated Order under the AP's case number. By doing so, this issue should be moot.

Thanks for the quick response. The AP is a seperate associated case to my main bk case. I filed the stipulation and proposed order under my bk case number, as I plan on closing the AP once the stipulation order is signed. The reason I did this is because my lender is not the defendant in the AP. My lenders nominee (MERS) is the defendant, as they are the lien holder on public record. My lender was served as an interested party. They contacted me after being served and stated that they did not wish to contest the complaint. From there we entered the agreement.

[HHM]

The order is still relevant to the AP which is where this should have been filed, but no harm, no foul. You don't really need to do anything. Unless you have a stickler of a judge who may want you to refile the stipulated order under the AP.
The AP is the matter in controversy, so that is what is getting resolved by the stipulated order. Note, would (should have) named both the lender and the nominee in your AP complaint. But again, probably no harm no foul.

[justbroke]

I hate MERS... as they cause too many issues with who is really the party in interest. (Great decision from the Kansas Supremes a couple of weeks ago!) In any event, I'm with HHM on this. Just stick with Option 1. That is already in progress.

[UpsideDownMI]

The order is still relevant to the AP which is where this should have been filed, but no harm, no foul. You don't really need to do anything. Unless you have a stickler of a judge who may want you to refile the stipulated order under the AP.
The AP is the matter in controversy, so that is what is getting resolved by the stipulated order. Note, would (should have) named both the lender and the nominee in your AP complaint. But again, probably no harm no foul.

Thanks again. I found a sample case in my district that reached a stipulation agreement after opening an AP, and the stipulation was filed under the main case. So I just followed suit. Looking back, I should have listed them both as co-defendants.

My fear (although im probably over thinking) is that if the order doesn't get signed for something as simple as clerical error and I am S.O.L. because the deadline for default passed. I keep telling myself that "both parties signed, why wouldn't the judge sign", but I am stressing because confirmation is coming soon.

[UpsideDownMI]

I hate MERS... as they cause too many issues with who is really the party in interest. (Great decision from the Kansas Supremes a couple of weeks ago!) In any event, I'm with HHM on this. Just stick with Option 1. That is already in progress.

What happened in that case?

I will never sign another mortgage document that lists MERS or anyone other than the lender as the nominee. Not that I plan to be in this situation again, but it definately makes it difficult for a property owner to fully understand who actually holds the lien to their property.

[justbroke]

What happened in that case?

Basically slapped for bringing foreclosure actions. The Kansas Supremes decided that MERS doesn't have standing.

I will never sign another mortgage document that lists MERS or anyone other than the lender as the nominee. Not that I plan to be in this situation again, but it definately makes it difficult for a property owner to fully understand who actually holds the lien to their property.

Not going to happen. MERS is the modern day clearinghouse for mortgages. I'm glad Kansas got religion and decided to show MERS the door. I think they used the word "sham" to describe MERS.

[URL="http://foreclosurebuzz.org/2009/09/15/kansas-supreme-court-mers-is-a-straw-man-with-no-enforceable-rights/"]Kansas Supreme Court: MERS is a Straw Man with No Enforceable Rights[/QUOTE]