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Paul K, Esq.
Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience:  10 years Exp., Great customer service, Prompt responses.
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Im filling out a chapter 13 plan and have a couple questions

Resolved Question:

I'm filling out a chapter 13 plan and have a couple questions about how to list a second mortgage that will become unsecured and stripped under the plan. The question is about where to enter it on the plan form. Under part 3 (b) for secured claims, I'm listing this as a modification. Do I also need to include a motion under section 6b of the chapter 13 plan as a "motion to void liens and reclassify claim from secured to completely unsecured?"

Thanks
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Paul K, Esq. replied 1 year ago.

Paul K, Esq. :

Hello, my name is XXXXX XXXXX I would love to assist you. Give me a moment to research your issue and I will answer promptly.

Paul K, Esq. :

Based on your Plan, yes you need to list the creditor in both sections.

Paul K, Esq. :

One is to explain what is being paid and the other is to explain why they are being paid less than in full amount.

Paul K, Esq. :

So it is in your best interest to list it in both places to make the Plan accurate.

Paul K, Esq. :

I know Chapter 13 Plans can be a bit confusing and crazy.

Paul K, Esq. :

Good luck and let me know if you have other questions in regards XXXXX XXXXX

Paul K, Esq. :

I will be on and off throughout the day adn night

Customer:

Thanks so much for your help. I thought that was the case

Paul K, Esq. :

So let me know and I will be glad to answer completely

Paul K, Esq. :

No problem.

Paul K, Esq. :

If there is anything else let me know.

Paul K, Esq. :

Also

Customer:

Is there a separate motion to file along with the package

Paul K, Esq. :

be sure to check that you have the most recent version of the Plan as they change periodically.

Customer:

and if so, can you possible paste in a sample

Customer:

forms due tomorrow and I'm just about done but had some questions relating to condo fees and stripping the second mortgage in the plan

Paul K, Esq. :

No separate motion needed.

Customer:

also, past due property taxes on my residence, condo, would be listed in the secured section and included in the plan?

Paul K, Esq. :

The Plan is your motion and the Creditor has to object prior to the hearing.

Customer:

confirmation hearing

Customer:

?

Paul K, Esq. :

yes

Customer:

okay....

Paul K, Esq. :

The confirmation hearing

Paul K, Esq. :

The other creditors

Paul K, Esq. :

mus tbe in Plan as well

Paul K, Esq. :

that is correct

Paul K, Esq. :

so that all arrearages are paid as part of the Plan

Customer:

I don't really have creditiors other than the condo fees, back real estate taxes and mortgages,

Customer:

I'm in good shape in the first mortgage but second should be stripped if approved

Paul K, Esq. :

Good

Paul K, Esq. :

It always helps

Paul K, Esq. :

to have a second mortgage stripped

Customer:

if I can't get it stripped and get forced into a 7, can I reaffirm the house and then discharge the second?

Customer:

I've heard conflicting theories on this but am basing this on McNeal vs Gmac ruling

Customer:

reaffirm the first mortgage, discharge second, keep house in ch7

Customer:

Hi again Paul,

Customer:

Do I need to send a copy of this plan to the second mortgage creditor as part of the initial plan or does that come later

Paul K, Esq. :

Yes you do need to send to the second mortgage all documents involving them.

Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience: 10 years Exp., Great customer service, Prompt responses.
Paul K, Esq. and 2 other Bankruptcy Law Specialists are ready to help you
Expert:  Paul K, Esq. replied 1 year ago.
As for the Chapter 7, you cannot avoid a mortgage in a Chapter 7 case, just judgment liens, so it would need to be in a Chapter 13 case. Let me know if you have other questions. Have a great week!!!
Customer: replied 1 year ago.

Stripping a Second Mortgage in Chapter 7 – New, Cutting-Edge Bankruptcy Law



Most of my blogs discuss foreclosure issues, but make no mistake – bankruptcy is a huge part of helping homeowners facing foreclosure. Though I didn’t start out as a bankruptcy lawyer, I’ve learned through my experience defending mortgage foreclosure cases in state court that bankruptcy is an important tool for a foreclosure defense lawyer to have in his/her arsenal. To ilustrate, I just encountered a recent decision that can and will help Florida homeowners file bankruptcy and still keep their home.


First, let’s be clear. Bankruptcy is a common way for homeowners to walk away from their debts and move on with their lives. Many homeowners file bankruptcy and walk away, and there’s nothing wrong with that. However, it doesn’t have to be that way. It’s entirely possible to file bankrtupcy and still keep your home. Let’s repeat that:


It is possible to file Chapter 7 bankruptcy and still keep your home.


To illustrate, take a look at the May 11, 2012, decision of the Eleventh Circuit Court of Appeals (the appellate court for all of Florida’s bankruptcy courts), which ruled that a homeowner can strip a second mortgage in a Chapter 7 bankruptcy. You may not understand what that means, so let’s give an example.


Suppose your house is worth $200,000 but you owe $250,000 on a first mortgage and $100,000 on a second mortgage. In other words, the amount you owe on your first mortgage is greater than the current value of your home. Under now-existing law (at least in Florida, anyway), you can file a Chapter 7 bankruptcy, keep your home in that bankruptcy (not surrender it, but keep it), and eliminate that second mortgage. Poof, the second mortgage is gone - just like all of your other debts once you get a discharge. Of course, the first mortgage still remains, and you’re still responsible for paying that, i.e. the $250,000. But the second mortgage, i.e. the $100,000, is eliminated.


There are, of course, some clear limitations on how this strategy can be used.


First, you have to qualify for Chapter 7. If you’re making six figures per year or own a bunch of assets, this isn’t for you.


Second, though you don’t have to be current on payments on your first mortgage – you can be two months behind or even two years behind – you have to get current shortly after you file the bankruptcy. If you just stopped paying your first mortgage a few months ago, this may not be too difficult – just cure your arrearages. If you stopped paying many months or even years ago, that may be easier said than done. After all, anyone who qualifies for Chapter 7 necessarily does not have a lot of money lying around, much less the tens of thousands of dollars it would take to cure all arrearages on a first mortgage that you haven’t paid in two years. That said, there’s nothing stopping you from convincing a friend or family member to cure these arrearages for you so as to get current on the first mortgage, file Chapter 7, eliminate the second mortgage, and keep your home. (To clarify, you don’t technically “have” to pay the arrearages, but if you don’t pay all the arrearages on your first mortgage, you’re at the mercy of the first mortgage company, as if it refuses to modify your loan then you can’t keep your home. That’s why I emphasize paying the arrearages, as it’s the only way to ensure you can strip the second mortgage and keep your home.)


Third, the current value of the home must be less than the amount owed on your first mortgage. To illustrate, suppose you owe $250,000 on a first mortgage and $100,000 on a second (the same as in my example, above), but instead of your house being worth $200,000, it’s worth $260,000. In that scenario, the law does not allow you to “strip” the second mortgage, because a portion of that second mortage is secured by the property. For this strategy to work, the amount owed on the first mortgage must exceed the current value of the home. So long as that’s the case, whether it exceeds the value by $1.00, $300,000, or anything in between, the entire second mortgage gets eliminated through the Chapter 7. Notably, the amount of the second mortgage is irrelevant – so long as the value of the home is less than the amount owed on the first mortgage, the entire second mortgage is eliminated.


As a practical matter, what does all of this mean? In my view, it means that certain Florida homeowners should assess their situation carefully. To try to simplify this, I suggest that once you answer “no” to any of the following questions, then this strategy does not apply for you, but if you answer “yes” to all of them, you should seriously look into this. Here are the questions:


Are you adamant about keeping your home?


Do you have a second mortgage?


Are you eligible for Chapter 7 bankruptcy (largely a function of your yearly income and assets you own)?


Is the amount you owe on your first mortgage greater than the current value of the house?


Could you afford to make monthly mortgage payments on your first mortgage, as it presently exists, indefinitely into the future?


Can you cure existing the existing arrearages on your first mortgage, or find someone who can help you do so (failing which you’ll have to somehow convince the bank to enter a modification)?


If you answered “yes” to all of these questions, then this ruling may be a terrific way for you to keep your home while eliminating your second mortgage and your other debts through a Chapter 7 bankruptcy.


As always, call us for a consult. XXX-XXX-XXXX.


Mark Stopa


www.stayinmyhome.com

Expert:  Paul K, Esq. replied 1 year ago.
That case has not been applied to any other Circuit that I am aware of, besides, the 11th Circuit, which unfortunately New jersey is not a part of. This is an outlier case that no other circuits have followed that I am aware of.
Customer: replied 1 year ago.

okay, thanks because at least one expert on this site has said that this could be used in NJ but 4 attorneys from New Jersey thought I was nuts so that's why there's a difference in opinion. I may get thrown out of 13 because of an old judgment that needs to be vacated but still remains open that technically puts me over the limits imposed by a 13. Since the goal was to keep my house because I'm current on my first position mortgage but haven't been paying second because there's no equity in the property for second at this point........... can you think of another way to keep the property in another plan if 13 fails because of the limits to unsecured debt?

Expert:  Paul K, Esq. replied 1 year ago.
Yes, I would tend to believe the NJ attorneys, it would not work there unfortunately. The debt limits are around $360,000 for a Chapter 13 and an old judgment that has become dormant can expire. If that is the case, list the creditor from the judgment, list the balance as $1.00, and state that it is disputed on the petition. That way you can stay in a Chapter 13.
Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience: 10 years Exp., Great customer service, Prompt responses.
Paul K, Esq. and 2 other Bankruptcy Law Specialists are ready to help you

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