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Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 31687
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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HI, I am asking on behalf of my elder parents... we are

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HI, I am asking on behalf of my elder parents...

we are 2 and half behind in mortgage payment, we filled for bankruptcy and we just got discharged last month JUN 28 2013, whille in bankruptcy we got 2 laters one from the bank stating..
1-Notice of Motion to Vacate automatica stay dated may 17th, later a we got a letter from the BKR court ordering 2-automatic stay hearing date 6/11/2013.. we never replayed to any.. what do they mean? 3- and how long do we have before we they forclose on us? my mother is a house wife, my dad whos 61 is working but makes about 32k any help to atleadt prelong this another year or anything? Thank u!

Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for your question, but I'm sorry you and your parents are having to go through this ordeal. I'll be glad to help you here.


I'll give you a little background to make this more understandable. When a person/couple (debtor) files bankruptcy, all creditors are automatically stopped from pursing the debt for payment of the debt, recovery of the collateral, etc. - called the "automatic stay".


HOWEVER, secured creditors (lenders with loans secured by property - house, car, etc.) have the right to file a motion to lift the automatic stay and recover their collateral in order to sell it and then apply those proceeds to the debt. This is what your parents first received from the mortgage company ("Notice/Motion to Vacate Automatic Stay"). Thus, this motion asks the court to allow the creditor to re-take its collateral, and the courts are generally always going to grant the motion because the lender has a right to recover its collateral.


If no one ever responded to the motion of the mortgage company, an order was likely entered on 6/11 granting the request to lift the stay. This means that the lender - after 6/11 - has permission to proceed with foreclosing on the property.


As for how long your parents have before the lender forecloses, no one can tell you that for sure - - except the lender. There is no real time limit on foreclosing/no requirement to foreclose within a certain amount of time from the automatic stay being lifted. Thus, who knows when the lender will begin foreclosure.


But, your parents will receive notice of the foreclosure because NJ requires mortgage companies to perform a judicial foreclosure, which means that the lender will actually have to file a lawsuit to foreclose. Because of this, it usually takes at least 8-10 months before the foreclosure concludes - - and your parents would be allowed to remain in the house until the case is over and the house is sold.


Here's a very good link you can read about the process:


Thus, your parents should have a reasonable amount of time even after the foreclosure process starts. It will not be a situation where sheriff shows up and tells them to get their things out of the house immediately. They will have adequate time. Also, many lenders will offer compromises and even help with the cost of moving in exchange for a peaceful return of the property to the lender, etc. So, they can likely expect something like that to occur as well.


I hope this answers your question, but if you need something further, please don't hesitate to ask. Thanks.

Customer: replied 4 years ago.

Ur answer is very detailed, I really do appreciate it which makes me wants to ask you more because hounestly you seem to care, I hope you dont mind me asking, do you know what are the steps the bank will do next? and is there a way we can prolong it even further? Thank u again!


also, do you have an office in North NJ? maybe we can switch the case to you? Thanks again!

Thanks for the kind words! I really appreciate that. Unfortunately, we can't take on clients through the site, so I wouldn't be able to represent them, but I certainly can answer any questions you/they may have.

As for what will happen next, there's no set or exact protocol. However, usually, the lender will make contact and try to work out an agreement - cash for keys, etc. - where the property is returned to the lender without going through foreclosure; in exchange, the lender would allow them an agreed amount if time to stay, etc.

If something can't be worked out, the lender would then file suit and proceed with the foreclosure process - which will take a considerable amount of time.

The only way your parents could get more time is if the lender agrees because they can't get relief/time from another bankruptcy filing. However, they can remain in the house until the house sells, so they should have a good deal of time even if the lender will not agree to an extension. Who knows, it could be 6 months or more before they even begin the foreclosure process.
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