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Terry L.
Terry L., Attorney
Category: Bankruptcy Law
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Experience:  Better Business Bur 15yrs bankruptcy experience. Chicago Bar
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I am currently in a chapter 13 bankruptcy case. At present

Customer Question

I am currently in a chapter 13 bankruptcy case. At present we are at a stand still. The original mortgage company failed to record their mortgage back in 2005. But prior to me getting the docket# XXXXX bankrutpcy protection. The mortgage company file a "Les Pendance". Now myt problem is that we are at a stand still. The bankruptcy judge refuses to rule, stating this issue must be resolved in state court. But, the mortgage company refuses to request a hearing to solve this issue. I DONT KNOW WHAT TO DO.... HELP PLEASE.
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  Terry L. replied 5 years ago.
If the bankruptcy court will not rule on the matter, you need to hire your bankruptcy attorney or a foreclosure defense attorney to resolve the matter in the state court action. If they have not timely filed thier lien, then the loan can be stripped off of the home,and have to be paid back at the unsecured rate of your confirmed plan. If so, then your bankruptcy case must pay back enough of the unsecured debt to protect the equity that will be in your home if the lien is determined to be invalid, making the debt unsecured. This is actually a great thing, since this error, if true, could strip off the loan. The problem then becomes that you may have to pay a huge bankruptcy payment, since you now need to protect the equity in the home. The chapter 13 payment may be way too high to afford. Talk to your attorney about converting to chapter 7 if the debt is actually stripped off. This way, the chapter 7 trustee might let you find financing for the home, and he can use that cash to pay your unsecured creditors. This is a strange occurance, but I've seen it a few times. Then, you would start fresh on the new loan.
Customer: replied 5 years ago.
You stated to resolve this matter in state court in hopes that the lien was not filed timely. Well, it seems that the lien was filed prior to receiving my docket #.
Expert:  Terry L. replied 5 years ago.
If they filed timely, then the debt would be valid. Then, your chapter 13 can pay back the arrears in your case. You will need to pay the mortgage payment then (unless it is paid thru the bankruptcy). Talk with your bankruptcy attorney to see what matter must be resolved then in state court. The bankruptcy should stop the state court foreclosure action immediately once filed.
Customer: replied 5 years ago.

OK. According to my atty. The Les pendance was filed but the Bankruptcy court refuses to rule their claim as secured or unsecured. We are at a stand still. Now prior to filing bankrutcy. Ocwen constructed a modification agreement, but the documents were botched. So while waiting for new documents after several months, I recevied nothing. I/we foward a request to Ocwen asking them to adhear to their offer prior to the bk filing, but Ocwen as yet to respond.

Expert:  Terry L. replied 5 years ago.
I see. So the bankruptcy court is not convinced that thier lien is valid yet or not. Once that is resolved (hopefully Ocwen and you can sign an agreed order allowing the secured claim) then the case can continue. if it is unsecured, you will run into the issues I mentioned above. If secured, your case can proceed as you intended, with the cure to be paid in the bankruptcy case to bring your loan current. Good Luck.

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