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My sister is in a foreclosure proceeding and the lending…

Customer Question
My sister is in...

My sister is in a foreclosure proceeding and the lending institution is not allowing her to make up the back payments, which she is now able to do. The mortgage loan is a refinance of $70K while the purchase price, originally paid in cash was $269K. What are her rights and how does she protect the equity in her home?

Lawyer's Assistant: Since laws vary from place to place, what state is this in? And has any paperwork been filed?

California, I believe they sent her a notice. She claims she talked with a supervisor at Cash Call, which holds the refinance, and they told her if she paid the three months past due, she would be OK. She did, but when she submitted the July payment they rejected it and told her the house was in foreclosure.

Lawyer's Assistant: Has anything been filed or reported?

I don't know, but must assume that it has.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

These are the basics as far asI know.

Submitted: 7 months ago.Category: Legal
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7/16/2017
Lawyer: Ray, Lawyer replied 7 months ago
Ray
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Satisfied Customers: 45,271
Experience: 30 years in civil, probate, real estate, elder law
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

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Lawyer: Ray, Lawyer replied 7 months ago

She may be looking at Chapter 13 bankruptcy to stop foreclosure and reinstate the loan.It appears to me they have accelerated the loan and are seeking to foreclose.This really her only option since she cannot pay off the loan and the acceleration has been pursued.Chapter 13 allows her to keep home and will be a multi year payment of debts type bankruptcy.

Reference

Under a chapter 13 bankruptcy, a debtor proposes a 3-5 year repayment plan to the creditors offering to pay off all or part of the debts from the debtor’s future income. You can use Chapter 13 to prevent a house foreclosure; make up missed car or mortgage payments; pay back taxes; stop interest from accruing on your tax debt (local, California state, or federal); keep valuable non-exempt property (see California exemptions); and more. If you can stick to the terms of your repayment agreement, all your remaining dischargeable debt will be released at the end of the plan (typically three to five years). The amount to be repaid is determined by several factors including the debtor’s disposable income as is usually determined as part of the California Means Test. In addition, the total amount paid to creditors under the Chapter 13 plan must also be at least as much as creditors would have received if the debtor filed a Chapter 7 bankruptcy. To file Chapter 13 bankruptcy you must have a “regular source of income” and have some disposable income to apply towards your Chapter 13 payment plan.

Chapter 13 bankruptcy is generally used by debtors who want to keep secured assets, such as a home or car, when they have more equity in the secured assets than they can protect with their California bankruptcy exemptions. Chapter 13 bankruptcy is a reorganization whereas Chapter 7 bankruptcy is a liquidation.

A chapter 13 bankruptcy allows them to make up their overdue payments over time and to reinstate the original agreement. Where a debtor has valuable nonexempt property and wants to keep it, a chapter 13 may be a better option. However, for the vast majority of individuals who simply want to eliminate their heavy debt burden without paying any of it back, Chapter 7 provides the most attractive choice.

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