How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask CalAttorney2 Your Own Question
CalAttorney2
CalAttorney2, Attorney
Category: Bankruptcy Law
Satisfied Customers: 10238
Experience:  Civil litigation attorney for individuals and businesses.
71563194
Type Your Bankruptcy Law Question Here...
CalAttorney2 is online now
A new question is answered every 9 seconds

I would like to reopen my chapter 13 case recent discharge

Customer Question

I would like to reopen my chapter 13 case recent discharge 05/16
JA: What state are you in? And has anything been officially filed?
Customer: Illinois no
JA: Have you talked to a lawyer yet?
Customer: no
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Bankruptcy Lawyer about your situation and then connect you two.
Submitted: 4 months ago.
Category: Bankruptcy Law
Customer: replied 4 months ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Phillips Esq. replied 4 months ago.

What is your question?

Customer: replied 4 months ago.
I recently was discharged from chapter 13 of my completed plan I have notice on my recorded mortgage with the county the recorded mortgage document has legal description errors . Can I file a motion to reopen and remove these mortgage liens in my recent chapter 13 after discharge
Expert:  Phillips Esq. replied 4 months ago.

Thank you for the information.

Kindly clarify,

Was the mortgage paid off?

If there legal description errors, have you contacted the lender to correct the errors?

Customer: replied 4 months ago.
The mortgage has not been paid off, I have not contacted the lien holders after my discharge. Since, my recent discharge I am still receiving collection letters from the junior lien holder.Can these mortgage lien holders with faulty recorded liens can still start foreclosure proceedings after my recent discharge, even though I am current with the first and second mortgage payments
Expert:  Phillips Esq. replied 4 months ago.

Thank you for the information. I am sorry, but it appears that you have opened a new question different from your initial question. I just want to make sure that I answer all your questions. Kindly re-state exactly what questions you want me to answer.

Thank you for your cooperation,

Customer: replied 4 months ago.
Sorry, If you can not comprehend or understand the existing questions that I am requesting, you have not answered not one question of mine. I feel and think your not knowledgeable enough in the area of bankruptcy law to answer my questions, Thanks for your time anyway for tryingI will be canceling this subscription asapPS: This site does not deserve not even one star
Expert:  CalAttorney2 replied 4 months ago.

Dear Customer,

Thank you for using our forum. My name is***** am another expert on the forum. Your prior expert opted out, this sometimes happens.

In reviewing your question above, it appears that you just received a discharge in your Chapt. 13 case (I assume this means you completed your 5 years worth of payments on the plan).

You own a piece of property with a mortgage and a second. You do not have any issue with these two loans. (I will also assume that these loans are paid, and that any possible "cram down" with the second was accomplished as part of your Chapt. 13 plan).

You also have some additional junior liens (junior to your mortgage and your second) that have been filed.

  • These junior liens are the ones you are concerned about.
  • In order to better help you I do need a little more information (I do see you are a little frustrated, and I do apologize, but I do need some help).
  • Were these your debts? (Or are these completely different - someone else's and just filed on the wrong property)
  • If they were yours, were they listed on your Chapt. 13 schedules?
  • Were they recorded before you filed your Chapt. 13 petition? (Back 5 years ago)
Customer: replied 4 months ago.
These were originally my debts In 2003 I refinanced my principle residence with national city bank, now PNC bank is servicing my senior mortgage and one junior lien on the property. When I filed a chapter 13 in 2012 to stop a senior foreclosure proceeding.
The senior mortgage was the only creditor to file a proof of claim of my confirmation planThe senior and junior mortgages where both listed on my schedules, both mortgages were recorded in 2003.My real concern after I recently receiving a 13 discharge of my completed plan.Now, the junior lien is mailing out collection letters claiming their amount due and suggesting foreclosure proceedingsWhile in 2010 till present I and the junior lien holder made an agreement to pay a fixed amount every month I have all my receipts to show proof I never stopped paying the agreed amount I am still current with my monthly paymentsNow, I am also, current with my senior mortgage monthly payments I have all my receipts to show proof as wellI do not want to go through another foreclosure proceedingI also, found out from the county records of my mortgage lien holders that the liens has inaccurate legal description errors on the recorded mortgage documentsI would like to know what are all the steps and procedures that I have to complete to reopen my discharged chapter 13 case again, if possible to address all my current concerns to the court?
Expert:  CalAttorney2 replied 4 months ago.

Dear Customer,

Thank you for the additional information.

While I understand the basic issue that you are facing, I am not sure that reopening your pre-existing Chapter 13 is going to be an appropriate, or effective, mechanism to resolve your issue.

-You say that you have an agreement with the creditor to continue paying the loan, which you have reiterated currently, this can be construed as a "reaffirmation" agreement - meaning that the discharge would not be effective anyway.

-You are facing a potential foreclosure, this means that the creditor is likely to be claiming some significant amount of money - if you reopen your bankruptcy, the court is going to re-calculate the payments owed, and require that you make payments in proportion to the amount due to that creditor and their class. (You may be able to argue that your payments made during the bankruptcy should offset this).

-As far as the actual mechanism to do this, it really isn't all that complicated, you make an "ex parte" motion to the bankruptcy court to reopen the case and ask them to allow you to reopen the case to list an omitted creditor, explain to the court how the creditor came to be omitted, and what your projected changes to the schedules/payments will be.

-However, given the nature of the issues you are trying to deal with I would highly recommend that you speak to a local bankruptcy attorney to represent you (you aren't paying them to walk you through the process, you are paying them to help present the argument in the best possible way to have the court actually accept your position and grant the set aside to allow you to either do a cram down retroactively, or do some other mechanism of dealing with this junior lien - frankly, what you posted here, this is going to be a hard argument to make on a motion to reopen, and you need a lawyer to help you with this part).

-There may be other options to assist you, you mention there may be issues with the loan documents themselves (it is difficult to prevail on a claim solely based on a clerical error, but depending on the magnitude of what is at issue, you may have enough to attack the lien as a "cloud on title" (but be aware, that minor errors in title can be corrected by the creditor)). Again, local counsel is going to be your best source of information here, because you are going to need a formal legal opinion on this matter (interpretation on the deed, loan, and any interpreting documents).

Customer: replied 4 months ago.
Is there a time limit in reopening a chapter 13 discharge case?In my Chapter 13 case the trustee filed and served to the mortgagee a notice of final cure payment, that with-in 21 days the mortgagee needed to file a statement as a supplement to the holders proof of claim.The trustee indicated, if the mortgagee failure to notify may result in sanctionsIn my Chapter 13 case the mortgagee senior and junior liens did not file a final statement or a proof of claim, therefore after I received my discharge
In reopening my Chapter 13 case can I base it on that the mortgagee did not supply the statement and proof of claim that they were required to file or also, base it on that after receiving my discharge I am still receiving collection letters for the total amount due?Can I enforce monetary sanctions to the mortgagee for causing cloud on title and for not supplying the statement and proof of claim that was required by the trustee to review?In chapter 13 as debtor can I also, file a motion to void a lien based on being a un-perfected recorded security interest?Does my chapter 13 discharge still protect the automatic stay, even, if I am still current with all my mortgage monthly payments?
Expert:  CalAttorney2 replied 4 months ago.

Dear Customer,

If I understand correctly, none of the procedural issues in your bankruptcy (raised by the trustee, or by you) were ever actually followed up in the bankruptcy itself - and your matter ran the entire course of the bankruptcy ending in a discharge.

If you were hoping to discharge any additional loans based on failure to file or some other procedural basis, you would have needed to do this during the actual bankruptcy procedure itself (such as the Trustee filing to "avoid" a lien). Reopening the bankruptcy is not going to give you (or the trustee) a second chance to do this.

Your "automatic stay" ends as soon as your bankruptcy does.

Your matter is very complex, and it appears to have been allowed to get overly complicated - I do not know if you were represented by counsel in your bankruptcy, but if so, you will want to contact that attorney. If not, you need an attorney now (if you hope to do something about these loans). This is not a simple matter, and as I noted above simply petitioning the court to reopen your bankruptcy (which as I noted is procedurally not that complicated) is not likely to do what you want or expect it to do.

You can find local attorneys using the State and local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).

Related Bankruptcy Law Questions