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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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I am the defendant - an individual mortgagee - property in

Customer Question

I am the defendant - an individual mortgagee - property in South Florida. The mortgagor filed BK chp 13 on 6-7-11. Has not paid mortgage pmts for June July or August. BK plan seeks to lower the remaining mortgage term from 307 months down to 60 mos - pmts from $576.96 to $522.11 Interest rate from 8.25% to 5.25%. Cram down value to $27,500. Mortgage balance as of 5-30-2011 was $73,388.53. I am not in agreement with the plan since it will severely affect my monthly income and ability to pay my bills. I would like to take the property back. The mortgage note says that pmt is due on the first and default is on the 15th day and I can proceed with foreclosure. In addition mortgagor has not paid taxes for 2010 or insurance which violates the mortgage. Please help!! The debtor actually has a monthly income greater than mine!
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 5 years ago.

Hi JACustomer,
1) Does this debtor have 2 mortgages on this property?

2) Have you already received the date for the confirmation hearing?

Customer: replied 5 years ago.

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.

Expert:  cfortunato replied 5 years ago.

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.

Thank you!

 

 

Customer: replied 5 years ago.

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

Expert:  cfortunato replied 5 years ago.

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.

Customer: replied 5 years ago.
I dont understand? if the judge oks the bk at the confirmation hearing and does not allow my objection or lift the stay- dosen't it mean that I have accepted his plan?
Expert:  cfortunato replied 5 years ago.
I will opt out of this question so that someone else can help you further.
Customer: replied 5 years ago.
Relist: Incomplete answer.
Pertinent to Bankruptcy Court Florida Southern District
Expert:  cfortunato replied 5 years ago.
The plan cannot be confirmed if you - a partially secured creditor - do not approve the plan. Additionally, there is no reason to believe that the stay will not be lifted.
Customer: replied 5 years ago.
Relist: Inaccurate answer.
the property is classified as investment property and can be crammed down - I went to the meeting of creditors and the trustee did not allow me not to accept the plan. I need to make a motion for relief from stay and need advice with regards to how to word it
Expert:  cfortunato replied 5 years ago.

You should be able to get the necessary forms and instructions from the clerk at the Bankruptcy court.

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