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Ask WALLSTREETESQ Your Own Question
Category: Bankruptcy Law
Satisfied Customers: 17252
Experience:  14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
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we filed bk and it was discharged in 4/08. The second was discharged

Resolved Question:

we filed bk and it was discharged in 4/08. The second was discharged 9 month later I get a bill that we are seriously delinquent and have to pay. We tried to negotiate, they sent a letter saying that they realyze the debt was discharged but as long as we have the property they can foreclose. We have been trying to make a settlement and we are waiting for a response (they say it is being reviewed) then today I get a sale date posted to my door. The amount of the nod is $80,000 but on this note is says $155,000.00 There is no equity we owe aprox $980,000 on the first, no nod has been filed we have been making interest only payments of $5,250.00 and are in negotiations for a loan mod. THe second did a BPO and said my home is worth $930,000. What can I do if they second does not accept my settlement offer? I am also afraid the first may cut off the loan mod negotiations if they see the sale date which is 1/27/09. I am really unsure of what is next.
Submitted: 7 years ago.
Category: Bankruptcy Law
Expert:  WALLSTREETESQ replied 7 years ago.
did you file a chapter 7? and did you list the mortgages or not?
Customer: replied 7 years ago.
Yes we filed chapter 7 we wanted to keep our existing home. The second trust deed was discharged but my husband believes that we reaffirmed. Having said that it shows discharged on my papers, credit report and I did not hear anything different for nine months.
Expert:  WALLSTREETESQ replied 7 years ago.
if the debt was discharged, they can foreclose on the property, but they will not get anything as the first will have to be paid first. I do not know why a chapter 13 was not filed, then you could have kept the home, the chapter 13 would have converted the second loan to unsecured debts and reduce that debt by 50-90% and you would only be liable for the first mortgage. At this late point, I would try to litigate the foreclosure suit by the second mortgage by fighting them in court.
Customer: replied 7 years ago.
I went on the advice from our bk attorney. They knew we wanted to keep our home. can we pay the back payments owed of aprox. 10,000 to avoid the sale and then proceed with a short sale.? Or if no one purchases at the court house step are we still foreclosed and wil be forced out of our home. Can an attorney help us at this point.
Expert:  WALLSTREETESQ replied 7 years ago.
Why pay them anything and do a short sale? If they foreclose and their is no buyer, you can still stay their until a new owner buys the property and tries to evict you. What you may want to do is keep the money, and see if you can hire an attorney to fight the foreclosure law suit that could give you several months to fight the case.
Customer: replied 7 years ago.
so if no one buys it is it still considered a foreclosure? will I be released of the debt? What happens if no one buys it at the steps? do they try again later? can an attorney fight this after the courthouse date if it does not sell. Thanks for being so responsive, do you have any referrals in California for this?
Expert:  WALLSTREETESQ replied 7 years ago.
what happens is the bank becomes the owner, and they can try to evict you, but usually they will sell it later. The debt may be released in CA as they have deficency laws where mortgage companies cannot collect on judgments if the loans were used to buy the property. An attorney would have to get involved prior to the sale to repoen the foreclosure suit.
Customer: replied 7 years ago.
One last comment the NOD that was filed and recorded was 80,000 now the notice of sale shows 155,000.00 can they change the price without due process.
Expert:  WALLSTREETESQ replied 7 years ago.
they are most likely adding legal fees and interest, but they must have to justify this in their court papers.
Customer: replied 7 years ago.

If the second forecloses what will I have to do? I have no NOD from the first of which is owed $960,000.00 . The second is foreclosing for 155,000.00 it is a HELOC. Will I have to move right away or will give us time?

Expert:  WALLSTREETESQ replied 7 years ago.
they will give you time, up to 3-6 months before an actual foreclosure takes place, then they will have to evict you which could take 2-3 months.
Customer: replied 7 years ago.

The HELOC 2nd trustee sales is scheduled for January 27th (this month) , the arrears are $11,000.00 of a note of $155,000.00. What happens to the first? who owns the home at that point? Can I pay the arrears and will it go away? Who is doing the eviction? I am unclear since it is very uncommon for a heloc to foreclose when the first has so much owed.

Expert:  WALLSTREETESQ replied 7 years ago.
they will foreclose, but the proceeds will go to pay the first loan, and they will sue you for the balance, paying them anything now, unless they state they will waive any future suit is worthless. If you pay the arrears. they will stop the suit, however you will have to pay them until the loan is satisfied.
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