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Ask Terry L. Your Own Question

Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2527
Experience:  Better Business Bur 15yrs bankruptcy experience. Chicago Bar
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Filed our Chapter 13 in Feb 2010 , paying trustee 450/mo, were

Resolved Question:

Filed our Chapter 13 in Feb 2010 , paying trustee 450/mo, were going to keep our home, but now due to my husband's health, we have since decided to move back to MN from Nev. We were paying our mtg. pmt directly to our mtg co, but after applying for a load mod in May, we have not made our mtg payments - the girl at the BK loan mod seemed to imply that we really didn't have to, and that any arrearages would be tacked on to the end of the new loan. We have not been notified of any decision on the loan mod, she said we would get a letter in the mail. We would not really like to move until next spring - how does foreclosure work in a BK 13? Our home is approx 100,000 under water. We have lived here for 5 years.
I have not notified our lawyer of our recent decision to move, do I just wait until we hear something from our mtg co on the loan mod or delinquent payments? Do they contact you before they ask the court for a stay to contact us? Do they contact our attorney first? Will telling our lawyer right away accelerate the foreclosure process, as the court will take over our house? How long do we have if that happens...Do we get to keep all of our possessions?
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  Terry L. replied 3 years ago.

Terry L. :

Hi and thank you for your question. In the future, you can request me to answer any further questions.

Terry L. :

The lender would need to bring a motion to modify the automatic stay if you are behind, before they can foreclose.

Terry L. :

If you wish to surrender, and move, you may want to talk to your lawyer to see if a conversion to chapter 7 would be available, that way your case would be done in just 90 days.

Terry L. :

They will send the motion to modify the stay to the court, you and your lawyer.

Terry L. :

Nothing else in your case will change, just that the trustee will no longer pay the mortgage in your case if you had mortgage arrears.

Terry L. :

Your attorney can review your budget and your assets to see if a conversion would have any negatives.

Terry L. :

Do you have any other questions?

Customer:

When we filed we had too much income for a Chapter 7 does that chage when a foreclosure happens?

Terry L. :

no, only if you have had a change in circumstances, such as a job loss

Terry L. :

so conversion might not be the best.

Customer:

What is a conversion? When we filed we had too much income 7654 with 70,000 credit card debt and filed on our second mtg.Would moving to a different state change our bk?

Terry L. :

conversion is when you change the case to chapter 7

Customer:

When we filed our BK we had too much income - does that change with a foreclosure? What is a change in venue?

Terry L. :

moving has no impact, unless you can no longer afford the trustee payment based on the new expenses there, and then, if so, you would need to bring a motion to modify the plan.

Terry L. :

So if you had too much income, unless you lost your job, the ch7 conversion would not be available.

Terry L. :

you could petition for a change in venue, but there really isn't any need, since all you have to do is make payments. Your attorney can appear for you on your behalf at any hearings.

Customer:

We paid our mtg. pmt directly to the mtg co. because we weren't in arrears at the time we filed.

Terry L. :

ok

Terry L. :

so if you are behind, they may bring the motion to take the home outside of bankruptcy

Customer:

IN a foreclosure on the au

Terry L. :

they will foreclose.

Terry L. :

nothing will change in your bankruptcy case otherwise

Customer:

Is there any reason to notify or not notify our lawyer about the decision to move - does the court take possession of the house?

Customer:

Do we get to keep our property in the house? Typically how long does the foreclosure take? Do they give you time to pack and move?

Customer:

I was under the impression the court will take the house to try & sell to pay what is made on the sale to the mtg co?

Terry L. :

1moment please

Terry L. :

thank you for your patience.

Terry L. :

You have to inform the attorney so that they can file a change of address with the court as you are required to do in the case.

Terry L. :

This way you will receive all mailings, motions etc.

Terry L. :

IF you keep the case going, your personal property is still yours.

Terry L. :

Read your mortgage closing documents to see if the appliances are yours or not. there should be a page in the packet from the title company stating that.

Terry L. :

Chapter 13 court does not liquidate assets.

Terry L. :

that is why you are in ch13, to protect assets.

Terry L. :

only chapter 7 trustees liquidate assets to pay creditors (if there is equity to go after)

Terry L. :

the lender can foreclose, but that is is

Terry L. :

it

Terry L. :

any last questions?

Customer:

We also want to sell our truck and car, and replace with just a car. We can't drive it to MN - can we use the cash to buy a car in MN - providing receipts or whatever? Would we have to buy the car here in in Nev?

Terry L. :

You need permission to sell during the chapter 13. your attorney can assist you with this

Customer:

Sorry for so many questions - thank you for YOUR patience!!

Terry L. :

if you wish to finance a new car, you will need approval for that too

Terry L. :

you can buy it whereever you wish

Customer:

Do you mean we can keep the cash and use it at anytime to pay for the car, sell here - and buy when we move?

Customer:

Does the court allow us expenses to move - not pay the trustee for a few months?

Terry L. :

It would depend on what the court requires

Terry L. :

you would need to bring a motion for that too

Terry L. :

basically, any changes, you need to bring a motion

Terry L. :

Call your lawyer, these are common motions, and they can walk you thru what info is needed

Customer:

I guess my biggest thing is do I call our attorney, or wait for the mtg. contact on the foreclosure. We don't want to move until spring...I don't want to do anything to speed up the process..

Terry L. :

Calling your lawyer will not speed up anything

Customer:

Would our lawyer be obligated to contact the court or trustee right away??

Terry L. :

for what?

Customer:

About our not making our house pmts, which would eventually go into foreclosre -

Terry L. :

no, the court and trustee won't care about that

Terry L. :

only your lender will

Customer:

Does our not making pmts until foreclosure make our mo expenses less and will the court ask for that money?

Terry L. :

your attorney won't tell anyone

Terry L. :

IF you try to modify the plan, yes, that will come into play.

Customer:

Thank you again - I have a little more piece of mind about what will happen from here...

Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2527
Experience: Better Business Bur 15yrs bankruptcy experience. Chicago Bar
Terry L. and other Bankruptcy Law Specialists are ready to help you

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