Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
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Question: “In a foreclosure case, does this mean that the final decision to foreclose will be decided at this Hearing or is it about attorney's fees being presented?”
Answer: To be honest, you haven’t provided enough information to adequately answer that question. The title of the pleading gives no indication what the motion for summary judgment is for. If it is for a foreclosure, then it means that the judge will decide whether or not there are any material facts in dispute. If there are not, then the judge will rule on the foreclosure without the need for a trial. The hearing to tax attorneys fees and costs sounds like a separate issue that is being included rather than the only reason for the hearing. Again, however, I am merely speculating. I wouldn’t know for sure what is being asked for in the pleading without reading it.
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DISCLAIMER: Please understand that the complexities of most legal problems cannot be adequately addressed in this setting, and that I am only licensed to practice law in the state of Maryland. Accordingly, you acknowledge (1) that we have not formed an attorney-client relationship, and (2) that my post is general information only and not specific legal advice.
Question: “Is there ANYTHING that can be done between now & tomorrow's Hearing to get some time? Either dispute "material facts" or file BK?”
Answer: If there are material facts in dispute, then the judge will not grant the motion for summary judgment. Obviously from here I can’t say what kind of material fact could be in dispute, but as an example, if you argued that you are not actually in arrears because you’ve made payments, then the judge would order a trial where you would show your evidence (e.g. cancelled checks) that you’ve made all required payments.
Assuming there are no material facts in dispute (i.e. you owe under the mortgage agreement, and you haven’t paid as agreed), then you can certainly temporarily stop the foreclosure process by filing for bankruptcy. This is because filing for bankruptcy automatically stays all collection action, including lawsuits. The state judge would have no choice but to put the foreclosure hearing on hold pending Chase’s ability to have the stay lifted. Generally speaking, however, a bankruptcy judge will lift the stay for a secured creditor fairly quickly if the debtor does not continue to make payments, there is no equity in the collateral, or the collateral is not adequately protected. Therefore, in order to prevent the foreclosure, you would need to continue to make payments. This does not include your arrears, however. If you were to file for Chapter 13 protection, your arrears would be paid off over time along with your unsecured debt. In other words, you wouldn’t need to repay your arrears all at once.
So, in sum, you could file for a Chapter 13 to stop the immediate foreclosure, then continue to make timely payments from that point forward, and rollup any arrears into your “plan.” If you think you can make mortgage payments in the future, you should certainly speak to a local bankruptcy attorney ASAP.
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