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TJ, Esq.
TJ, Esq., Attorney
Category: Bankruptcy Law
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Experience:  JD, MBA
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I paid for and started a chapter 13 bankruptcy, this September

Customer Question

I paid for and started a chapter 13 bankruptcy, this September 29th. My first time ever, filing for a BK.  The main reason was to save my home from being sold in foreclosure.  

2 problems came up.
***  I found out last week that a mistake was made on my BK paperwork and that my 1st mortgage payment was actually due 2 days after I filed. Which now  makes me due for 2 months on Nov 1st.  I can't afford it.
***  Finally, my mother in law, living in a different country became severely ill and will need us to help her economically for the next 3 months.  

In conclusion, I cannot make the 2 mortgage payments or the initial trustee payment that was due Oct 29th.   So its clear that my chapter 13 will most likely be dismissed by the trustee due to non payment of the initial payment.

So, I need advice on the following: 
What's the best way to communicate my situation to both the Atty. and or the Trustee.
 It's important I handle it the most appropriate way.  I know that when my mortgage company tries to resale my home again in 3 months or so, I'll need to re-file BK to again save my home.  I'm completely sure this time we will make it work until its finished.

***So what is best way to communicate this to Atty. and trustee.
***Will I for sure be able to re-file for chapter 13 BK again.
***What should I know or beware of during this period.
***I'll also want to file my tax returns and get my refund before I re-file BK on approximately January the 31 st.
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  TJ, Esq. replied 1 year ago.
Hello and thank you for allowing me the opportunity to assist you.

Q: ***So what is best way to communicate this to Atty. and trustee.
A: You should call or email your attorney ASAP and explain the situation. You should not tell the trustee anything since any communications between you and the trustee should be made by your attorney. Your attorney should be able to deal with all of this for you, so you only need to worry about telling your attorney. I'd just be honest with him.

Q: ***Will I for sure be able to re-file for chapter 13 BK again.
A: You can likely refile without a problem. In some cases of obvious abuse (i.e., filing just to prolong foreclosure without a good faith attempt to complete the bankruptcy), the trustee or a creditor may ask the court to dismiss your case. But in your case, it sounds like you have a reasonable explanation, so that probably wouldn't happen.

Q: ***What should I know or beware of during this period.
A: There is a chance that your case will not be dismissed, but merely converted to a Chapter 7. The court would only allow a dismissal if there is no prejudice to your creditors. It's possible that your mortgage lender will argue for a conversion to a Chapter 7 so it can immediately foreclose since you aren't making payments.

Q: ***I'll also want to file my tax returns and get my refund before I re-file BK on approximately January the 31 st.
A: That is a good idea if you cannot exempt it all, because it'll give you the chance to use it before filing for bankruptcy. Of course, you'll need to keep in mind the rules regarding preferences (90 day lookback) as well as the lookback period for gifts, etc. (2 years).

Does that answer your question? Let me know if you need clarification, and please remember to rate me positively so that I receive credit for my efforts.

Thank you and good luck!

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