Oh my, this education is really something, wish I could use it to help more than my uncle with all of this but I am in law school, just won't end up with a degree, but if we end up with the house after all the yankin they've done to him, and he had put over 100k down on both homes and never refinanced, except modification. But a few months after the mod they were going to raise his payments a few hundred to include principal and if I remember right they were going to have him pay thousands, maybe a balloon payment. It was a 5 year arm. But during the mod they never disclosed that would be coming and he paid over 7k to them to do the mod that then actually only reduced payment by $3. Yep 3 dollars. They failed after he and I both what the total payment would be, to disclose it didn't include taxes and insurance. During first few payments we called lender to make sure we paid right amount and they kept giving us the payment they said. Then a few months down the road they sent those payments back (that they told us on phone to send) and said they were wrong and needed to include hundreds more for taxes/ins. Well I don't think they didn't record it cuz of avoidance cuz they got it pretty much immediately from bk lender that did refi in 2003 and refi lender didn't file bk until 2007. But thank you, XXXXX XXXXX about the HELOC cuz I told them about first but they recorded their HELOC and same lender but turned out the first lender didn't know about HELOC when they modified mtg. So here's the scoop. The first mtg is about 15 k less than current market value and HELOC is 90k, so from my understanding, there is no way to strip anything off; however I'm hoping you'll tell me something I didn't know...as you've already done. But at first he was exempting the other property (lives 50/50 each house) and trustee said he would sell the house with 2 mtgs. When I told him they never recorded their lien on the first, trustee said then if they didn't record a lien then I'm going to sell that house. So we amended his schedules and exempted that property.Because of his age and disability he gets a 175k homestead exemption. And then with the 90k HELOC and the first being 240k and unrecorded prepetition, we thought he doesn't have to pay the first cuz it eats into his homestead exemption and he can avoid it to keep and get his exemption. Why could the trustee have avoided it and we can't? Or can we? All I'm doing is reading on it day and night and finally figured it would be a collateral loan avoidance. Before doing the lien avoidance, if we even have any codes, Bankruptcy rules, ca statutes legs to stand on. Thanks for your guidance. Someone said we would first have to motion to value collateral. I'll wait patiently for your brain infusion
State/Country relating to question: California
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I'm ready to quit this site my time is too valuable, if u don't get this reply I'm calling ja
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This is an extremely complex issue which is probably why you've not gotten a response yet. It's definitely more than a $15 question. Basically, the Trustee has the exclusive power IN A CHAPTER 7 to avoid the consensual but unrecorded lien. There is case law however, that in a Chapter 13, the Debtor has those Trustee powers and could avoid the lien even though the Debtor granted the lien whether recorded or not. Be aware, however, that Courts are split on this. The 9th Circuit BAP, for instance, recently held a Chapter 13 debtor could do this, going against a previous opinion of the 9th Circuit Court of Appeals. I currently have a Summary Judgment motion pending in the Eastern District of Arkansas which turns on this very question. I am trying to wipe out a mortgage lien where the lender recorded it in the wrong county. Under Arkansas law, that is unrecorded as to the actual property. You need to find an attorney in your area who is a Graduate of the Max Gardner Bankruptcy Boot Camp. Just Google that name and he has a website where he lists all of us who have gone to his intensive 5 day Boot Camp.
12 Years Experience in Bankruptcy - Mid-South Super Lawyer
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