Hi JACustomer,1) Does this debtor have 2 mortgages on this property?
2) Have you already received the date for the confirmation hearing?
Just one mtg - The property is used as a rental. He has a primary residence which is also in Chp 13 -
He also has 2 lots in Texas which he is surrendering - no other real estate
Creditor meeting 8-22-2011
Confirmation is 10-12-2011
He has been picking up the rent and I have not received any pmts? Grounds for dismissal?
If needed - I have access to all the documets filed.
You can object to the plan. You do not have to accept a cram-down because yours is not a second mortgage. Cram-downs are only available when there are 2 mortgages on a property, and only when the current market value of the property is less than the balance on the first mortgage. This is an absolute rule, and there are no exceptions, and it does not matter what type of property is involved.
Accordingly, since this person is in default, after you object to the plan, you can file a motion asking the Bankruptcy court for relief from the automatic stay, after which you can proceed to foreclose.
I think this is what you wanted to know. If not, please let me know.
the mortgage balance is $73,388.53 - Value according to debtor attorney is $27,500 therefore he is classifying the difference $45,888 as unsecured and unpaid
Bankruptcy Court - Southern District
It is true that part of the mortgage is unsecured. And it is true that he can have the mortgage discharged in the Bankruptcy, so that he will no longer be liable to pay it.
But he cannot have the lien "stripped" (removed). Because of this lien - which is not being satisfied - you can foreclose the property if he is not paying the full amount of the mortgage.
You should be able to get the necessary forms and instructions from the clerk at the Bankruptcy court.
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