We refinanced the primary mortgage with this bank 7 years ago. There is a second mortgage on the primary residence with a different bank. Our rental property is with the same primary mortgage bank and there is no second.
With that in mind, the Trustee has begun the closing becuase we have met the unsecured claim at 100%. Will the closing wait for the sale of the properties?
Not sure I follow you note. Since the Trustee has begun the closing, it's in my best interest as the debtor to let it close???????
If the bank does not (not likely) file a deficiency claim, then the debt will be discharged during the closing???????
I have an attorney.
The POC from the bank (the first note on the two properties) does NOT select secured or unsecured in section four, though the section is selected.
The other two secured creditors only selected "secured" for their claims.
So the question is, will the Judge allow the creditor to amend the claim after the bar date has passed?
If you have a moment, please take a look at this ruling from:
DATED this 11th day of September, 2007.
BY THE COURT
/s/ Paul M. Glenn
PAUL M. GLENN
Chief Bankruptcy Judge
Our creditor did not select either secured or unsecured on the form (section 4), but did check the box as a secured claim. Even with that, I don't believe the Judge would allow an amendment in this case because it does not clearly indicate intent, as was very clear in the Hyundai case. In fact, even with the very clear intent stated in the original POC to amend Hyundai ruling, the lower courts ruled in favor of the Debtor. This was only overturned because Hyundai clearly and expressly reserved the right to seek a deficiency claim in the event that its collateral was repossessed and sold.
From the ruling:Under limited circumstances, however, a claim filed after the bar date may be allowed if it amends a timely filed proof of claim. According to the Eleventh Circuit Court of Appeals, an amended claim should be "freely allowed where the purpose is to cure a defect in the claim as originally filed, to describe the claim with greater particularity or to plead a new theory of recovery on the facts set forth in the original claim." An untimely claim should not be allowed, however, if it represents only an "attempt to file a new claim under the guise of amendment." In re International Horizons, Inc., 751 F.2d 1213, 1216 (11th Cir. 1985)(quoted in In re Gilley, 288 B.R. 901, 903 (Bankr. M.D. Fla. 2002)).
Don't worry about payment. At this point I will pay $20, but am willing to pay $30 if you can give me additional clarity based on the additional info.
Tks for the help,
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