Below is a sample of how one can formulate a Motion to approve the loan modification while still in bk. Lenders are now requiring Bk Ct approval and there have been a number of threads relating to this. Since we are not talking "rocket science" I thought it would be nice to lend one of my motions to this forum. Please note that, depending upon your jurisdiction, the filing of the Motion is only the 1st step to obtaining Court approval.
1. Draft and file the Motion;
2. Either you will then have to obtain a hearing or draft a Notice of the Motion;
a. If your jurisdiction requires a hearing you will have to get a date and then draft, file and mail to all creditors on the master mailing list a "Notice of Hearing;
b. If your jurisdiction allows "negative notice" you will have to draft a Notice of Motion and Time To Object. This will have to be filed with the Court and then mailed to all creditors on the Master Mailing List. The Notice, which gives details of the Motion, usually states that the recipient of the Notice has 21 days to object. If no one objects then you can file an Order approving the Motion. If someone does object (unlikely) then you will have to set the matter for a hearing.
______________________ Here is the sample Motion_______________
MOTION FOR AUTHORIZATION TO MODIFY RESIDENTIAL MORTGAGE:
1. Debtor filed her voluntary petition under Chapter Thirteen on ___________. The Chapter Thirteen proceeding either has been or will be converted to a Chapter Seven.
2. During the course of the Chapter Thirteen, the Debtor
began negotiating with her first mortgage holder, ____________, for a loan modification as it relates to her homestead residence located at __________________________.
3. The Debtor was ultimately successful and was offered a
loan modification under terms and conditions that are agreeable to both the borrower and the lender. To finalize the transaction the lender is requiring the approval of this Court.
4. Debtor has been given the opportunity by (LENDER’S NAME) to modify the Promissory Note secured by a first position Deed of Trust against her homestead residence.
5. The modification of the home loan which amends and supplements the Mortgage Deed of Trust dated ____________ and recorded on ______________as document number ____________ in the Official Records of _________ County, will allow the Debtor to reduce her overall costs under the following terms (Describe the terms- for example):
a. The principal balance on the Note will be $__________;
b. The Note, as modified, will bear fixed interest rate of ______% which is a reduction from the current rate of ______%;
c. The loan shall mature on __________, 2035; and
d. The monthly “PITI” payment shall be $________ (subject to any necessary future escrow adjustments).
6. It is understood by all that the Debtor will be converting or has already converted the Chapter Thirteen to a Chapter Seven and that any Discharge entered by this Court will be in the form of a Chapter Seven Discharge. It is further understood that the approval of this Motion will not be in the form of an approval of a Reaffirmation Agreement and, should the Debtor default under the terms of the loan modification, NAME OF LENDER's sole remedy will be to exercise its rights against the collateral.
7. Said modification is necessary in order to allow the Debtor to continue to reside in her residence. Continued living arrangements under the current condition is not feasible.
8. All preliminary steps to complete the modification have been provided for. Attached to this Motion is a copy of Modification documents. (make sure you attach a complete copy)
9. The Trustee is to have no objection to the Modification.
WHEREFORE, Debtor requests this Court grant the Motion for Authorization to Modify Residential Mortgage.
Respectfully Submitted this ____ day of ______, 2010.
_______________
Best regards.
Des.
1. Draft and file the Motion;
2. Either you will then have to obtain a hearing or draft a Notice of the Motion;
a. If your jurisdiction requires a hearing you will have to get a date and then draft, file and mail to all creditors on the master mailing list a "Notice of Hearing;
b. If your jurisdiction allows "negative notice" you will have to draft a Notice of Motion and Time To Object. This will have to be filed with the Court and then mailed to all creditors on the Master Mailing List. The Notice, which gives details of the Motion, usually states that the recipient of the Notice has 21 days to object. If no one objects then you can file an Order approving the Motion. If someone does object (unlikely) then you will have to set the matter for a hearing.
______________________ Here is the sample Motion_______________
MOTION FOR AUTHORIZATION TO MODIFY RESIDENTIAL MORTGAGE:
1. Debtor filed her voluntary petition under Chapter Thirteen on ___________. The Chapter Thirteen proceeding either has been or will be converted to a Chapter Seven.
2. During the course of the Chapter Thirteen, the Debtor
began negotiating with her first mortgage holder, ____________, for a loan modification as it relates to her homestead residence located at __________________________.
3. The Debtor was ultimately successful and was offered a
loan modification under terms and conditions that are agreeable to both the borrower and the lender. To finalize the transaction the lender is requiring the approval of this Court.
4. Debtor has been given the opportunity by (LENDER’S NAME) to modify the Promissory Note secured by a first position Deed of Trust against her homestead residence.
5. The modification of the home loan which amends and supplements the Mortgage Deed of Trust dated ____________ and recorded on ______________as document number ____________ in the Official Records of _________ County, will allow the Debtor to reduce her overall costs under the following terms (Describe the terms- for example):
a. The principal balance on the Note will be $__________;
b. The Note, as modified, will bear fixed interest rate of ______% which is a reduction from the current rate of ______%;
c. The loan shall mature on __________, 2035; and
d. The monthly “PITI” payment shall be $________ (subject to any necessary future escrow adjustments).
6. It is understood by all that the Debtor will be converting or has already converted the Chapter Thirteen to a Chapter Seven and that any Discharge entered by this Court will be in the form of a Chapter Seven Discharge. It is further understood that the approval of this Motion will not be in the form of an approval of a Reaffirmation Agreement and, should the Debtor default under the terms of the loan modification, NAME OF LENDER's sole remedy will be to exercise its rights against the collateral.
7. Said modification is necessary in order to allow the Debtor to continue to reside in her residence. Continued living arrangements under the current condition is not feasible.
8. All preliminary steps to complete the modification have been provided for. Attached to this Motion is a copy of Modification documents. (make sure you attach a complete copy)
9. The Trustee is to have no objection to the Modification.
WHEREFORE, Debtor requests this Court grant the Motion for Authorization to Modify Residential Mortgage.
Respectfully Submitted this ____ day of ______, 2010.
_______________
Best regards.
Des.
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