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TJ, Esq.
TJ, Esq., Attorney
Category: Bankruptcy Law
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Experience:  JD, MBA
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I have an ex partner that is jointly on a 1st and 2nd home

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I have an ex partner that is jointly on a 1st and 2nd home mortgage for a home and a 1st mortgage on an airplane with me. They filed for chapter 7 and on May 10th, the judge threw the filing out for abuse; she lied on her filing and has the money to pay her bills. Now, I just got notice that she was filing a chapter 13. I have been making all the mortgage payments myself, and there is no delinquency or money owed on either mortgages. I am doing this to keep my credit rating until I can figure out how to get her off the mortgages and collect the amount of money that she owes me for making her 1/2 of the mortgage payments. Currently she owes me @ $90,000 in back payments

Questions:
1) If the court grants the chapter 13, can the 1st and 2nd mortgages be discharge completely? The bank tells me that she will still be responsible for post petition mortgage payments.
2) Her attorney wrote me on Friday and is trying to get me to agree to having her dismiss the automatic stay and pay me $10,000 over 60 months. Why would he do that?
3) Any suggestions for a legal course of action to make the court require her to pay me what she owes me?

Hello and thank you for allowing me the opportunity to assist you.

1) If the court grants the chapter 13, can the 1st and 2nd mortgages be discharge completely? The bank tells me that she will still be responsible for post petition mortgage payments.
A: Yes, she can be discharged of her liability for the mortgages in a Chapter 13. She would only pay the mortgages post-petition if she intends to keep the house and airplane. That is not likely the case. However, the discharge would not be received until 3 to 5 years after filing, since that is how long a typical Chapter 13 case lasts.

2) Her attorney wrote me on Friday and is trying to get me to agree to having her dismiss the automatic stay and pay me $10,000 over 60 months. Why would he do that?
A: It sounds like the Chapter 13 Plan will be 60 months, and he wants you to agree to accept $10k in that time period to discharge your claim against her. It's possible he's suggesting that as a way to keep her interest in the house and airplane even after the bankruptcy. If that is the case, then I would not likely agree to that.

3) Any suggestions for a legal course of action to make the court require her to pay me what she owes me?

A: Unfortunately, the court cannot likely make her pay you in full. The best you can do is either file a proof of claim to get some of what is owed through the Plan, or get her to voluntarily pay in order to keep her interest in the house and plane, or file an adversary complaint if there was fraud, in which case you could argue that the debt is not dischargeable. The latter would mean that she owes you after discharge, though you'd still need to collect.

 

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