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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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Chapter 13 BK

Resolved Question:

We had a hearing for a motion to strip my second lien. During the first hearing, the lender did not show up. The judge requested an e-filing declartion (which I signed and emailed to my attorney) then a continuance was set for June 30 of this year. Does the lender now have 15 days from the continuance date to contest, or only 15 days from the original filing to contest?
Submitted: 4 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 4 years ago.
Hi ecasal,
The bankruptcy court is lenient regarding granting extensions for just about everything. The lender might have been able to get an extension of time to contest the motion.
However, it is more likely that this continuance was requested by the trustee, and may just be a "holding" date, which means the trustee just wants to check on something, and there is a good possibility that the continuance will be canceled (you won't have to show up for it).
When one of my clients has a continuance, I call the trustee a few days in advance, and have never had to show up for one.
Customer: replied 4 years ago.
So why would the trustee need more time if the Judge already had granted the motion to strip the lean at the original hearing? And is it still granted or can the Judge reverse the ruling? Also, if the lender asked for a continuance, wouldn't my attorney and myself have been notified of that when the lender filed for the continuance?
Please let me know.

Thanks again
Expert:  cfortunato replied 4 years ago.
You don't know that the reason for the continuance was because of the Motion. The trustee may need the extra time to go over the plan figures.
The judge will not reverse the ruling, unless it is appealed, which is done in court, not at a continuance.
And yes, if the continuance was requested by the lender, your lawyer would have received notice from the lender. Any party asking for a continuance must serve notice of the continuance on the other parties involved (attorney for debtor, bankruptcy trustee, US trustee). Lack of service would result in a dismissal of the continuance.



Edited by Christina Fortunato, Esq. on 6/2/2010 at 1:43 PM EST
Customer: replied 4 years ago.
So what would be types of info the trustee would need when asking for a continuence? Also, a representative for the lender did not show up at the hearing for the motion to strip the lien. Does that make it automatically granted if the lender does not show? I just need some reassurance that the second mortgage will be stripped. The continuance hearing date is June 30, the same date as confirmation hearing. Will this set back the confirmation hearing?

Thanks
Expert:  cfortunato replied 4 years ago.
If the trustee needs anything, he will let your attorney know. No one showed up for the lender because most of the time doing so is a waste of time and money for the lender, as lien-stripping is routine and there isn't much a lender can do to prevent it.
Basically, to prevent lien-stripping, the lender would have to prove that the property is worth more than what is being claimed.
And yes, if the lender does not show up to dispute the lien-stripping, then the motion to lien-strip is granted.
The continuance was deliberately set for the same day as the confirmation hearing, and will not affect the confirmation hearing.
Unless your property can be sold for more than the balance on the first mortgage, the second lien will be stripped if you finish paying the plan over the next 5 years.
Customer: replied 4 years ago.
Last question, at the time of filing the value was below the balance on my first. As of yesterday, I am a little over o. Value as to what I owe on my first (according to zillow). Does the judge use the value at the time of filing fo chapter 13, or the value at the time of the hearing?

Thanks
Expert:  cfortunato replied 4 years ago.
T

Edited by Christina Fortunato, Esq. on 6/2/2010 at 2:18 PM EST
Expert:  cfortunato replied 4 years ago.
The trustee will look at the value of the house that is listed on the bankruptcy petition.
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience: Bankruptcy professor.
cfortunato and 2 other Bankruptcy Law Specialists are ready to help you
Customer: replied 4 years ago.
Ok, thank you so much for your help
Expert:  cfortunato replied 4 years ago.
You're welcome! And thank you for accepting my answer!
Customer: replied 4 years ago.
Can the trustee still change my plan payment? the plan payment was confirmed back in April and I have been paying the same amount every month. Is there a possibility the court trustee will change the dollar amount ?
Expert:  cfortunato replied 4 years ago.
He will ask if anything has changed since April - more or less income, more or less expenses, etc. If not, and if you have been making the payments, then he will not change the payment amount.
Customer: replied 4 years ago.
Thank you
Customer: replied 4 years ago.
Hello Ms. fortunato, I have another question. After the first hearing to strip the lien, a continuance hearing wa set for 6/30. Does the lender now have 15 days from the continuance notice to contest, or is it 15 days from the original filing?

Also, I called the court trustee on a different subject and they told me the motion was declined last month, I called my attorney and the attorney said it is not declined. Why would the court trustee say it was declined?

Thanks
Eric
Expert:  cfortunato replied 4 years ago.
The lender has until the confirmation hearing (June 30) to contest the plan. It is too late to contest the lien-stripping, unless there are extenuating circumstances.
I'm not sure why you were told the motion was denied, but I do know that it is not uncommon for court personnel to make mistakes.
Customer: replied 4 years ago.

So just to clarify. The lender can no longer contest the lien strip even though there was a continuance? Also, I checked my court trustee website and my lender has not placed a claim for my first and second mortgage. Is this normal? I had entered an amount owed in past due mortgage payments on my first when filing, that amount is showing but no formal claim for any amount has been made. If they do not make a claim, does the court approve the amount I have listed on the filing?

 

Thanks

Expert:  cfortunato replied 4 years ago.
In general, only unsecured creditors (eg. credit cards) have to file a claim.
Customer: replied 4 years ago.
Thank you so much
Expert:  cfortunato replied 4 years ago.
You're welcome!

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