Should I file Before I receive a NOD or after?

[technoreid1]

I live in California.

Behind 4 months on payments on our home. Upsidedown on home by 50k. Tried a loan modification with the servicer and they refused. *We have not yet received a notice of default! (long time) - Also have 80k in credit card debt. And being sued for 9k by one credit card.

Have been told by many people that it would be "best" to file CH7 (which is what we would be filing) BEFORE we receive the NOD.

My ? is this. If I file a BK before I receive the NOD - does the mortgage company still have to go through "regular foreclosure" proceedings (i.e., 90 days + 15).

I have been told that if I file a BK before the NOD the mortgage company would have to get "relief from stay" first and then proceed with "normal" foreclosure proceedings (i.e., non-judicial foreclosure)

Does this sound true?

Or is it better to file a BK lets say 80 days after recieving a NOD?

thanks, techno

[ohwell]

From what I understand, even if you have a NOD prior to the bk filing, the lender will have to file the motion to lift the stay. The only reason I can answer that is that we had an NOD prior to filing and the motion was filed to lift the stay once we filed for bk. I think its just standard procedure. We are in CA.

[SinkingFast]

The Lender is gonna have to go thru Foreclosure to take Title to the property. Unless, and it's rare, if you offer and the Lender accepts a Deed In Lieu of Foreclosure. Those are the only 2 legal ways the Lender can take Title to the property to resell it.

Generally speaking, a Notice of Default and Acceleration will come with some sort of time frame attached to it. Ours was 30 days. Depending on the State you live in, the Lender may have to go to Court to begin the Foreclosure process. Or your property may have to be advertised for 20-30 days prior to the Sale date.

Probably the reason you haven't gotten a NOD yet is the Lender may be carrying a lot of Foreclosed or REO properties on their balance sheet right now. Foreclosures, nationwide, are at an all time high and climbing.

As OhWell said, if you file and the Lender wants to move to Foreclose, they'll file a Motion to Lift Stay to begin Foreclosure.

[technoreid1]

Once the motion was filed to lift the stay did you have the typical 90 days + 15 foreclosure time?

Someone told me that after they lift the stay they could accelerate the 90 days to like 30???

not sure?

thanks, techno

From what I understand, even if you have a NOD prior to the bk filing, the lender will have to file the motion to lift the stay. The only reason I can answer that is that we had an NOD prior to filing and the motion was filed to lift the stay once we filed for bk. I think its just standard procedure. We are in CA.

[technoreid1]

Thanks for your response! you said

"if you file and the Lender wants to move to Foreclose, they'll file a Motion to Lift Stay to begin Foreclosure."

Could they accelerate the normal foreclosure timeline? I live in CA and it's 90 days + 15 from the filing of the NOD.

I also heard fro, someone that they "might not even lift the stay"???

thanks, techno

The Lender is gonna have to go thru Foreclosure to take Title to the property. Unless, and it's rare, if you offer and the Lender accepts a Deed In Lieu of Foreclosure. Those are the only 2 legal ways the Lender can take Title to the property to resell it.

Generally speaking, a Notice of Default and Acceleration will come with some sort of time frame attached to it. Ours was 30 days. Depending on the State you live in, the Lender may have to go to Court to begin the Foreclosure process. Or your property may have to be advertised for 20-30 days prior to the Sale date.

Probably the reason you haven't gotten a NOD yet is the Lender may be carrying a lot of Foreclosed or REO properties on their balance sheet right now. Foreclosures, nationwide, are at an all time high and climbing.

As OhWell said, if you file and the Lender wants to move to Foreclose, they'll file a Motion to Lift Stay to begin Foreclosure.

[SinkingFast]

There's really no hard and fast answer to what will happen. A lot depends on your local market, how many REO properties the Lender is carrying on their balance sheet, how quick the investor behind your loan wants to move.

BassBoy lives in Ohio. Their case was Discharged about a year before the Lender auctioned their house.

I know you're probably figuring how long you'd have to live there "rent free". But we really can't answer that for you.

Maybe someone from CA will chime in with what happened in their particular situation. But, there again, that does not mean your Foreclosure will move along at the same pace.

If you're planning BK,............ You might be best off to find another place to live anyway. Get moved and settled. Get 2-3 months bills under your belt so you know what your Expenses for that place are gonna be for your Schedule J. You don't wanna be living some place cheap and not have proper expenses for Schedule J. That's your actual living expenses you file with the Court.

[technoreid1]

Thanks for your response! : )

We want to get moved and settled.... and "move on"
But my attorney advised me not to leave my house during the foreclosure and I do not know why?

What is a schedule J?

thanks, techno

There's really no hard and fast answer to what will happen. A lot depends on your local market, how many REO properties the Lender is carrying on their balance sheet, how quick the investor behind your loan wants to move.

BassBoy lives in Ohio. Their case was Discharged about a year before the Lender auctioned their house.

I know you're probably figuring how long you'd have to live there "rent free". But we really can't answer that for you.

Maybe someone from CA will chime in with what happened in their particular situation. But, there again, that does not mean your Foreclosure will move along at the same pace.

If you're planning BK,............ You might be best off to find another place to live anyway. Get moved and settled. Get 2-3 months bills under your belt so you know what your Expenses for that place are gonna be for your Schedule J. You don't wanna be living some place cheap and not have proper expenses for Schedule J. That's your actual living expenses you file with the Court.

[Minnymouth]

If you need to file and are going too anyways its better to file before foreclosure proceedings start.

Filing Chapter 7, surrendering home, looks better on credit report than Chapter 7 + foreclosure on credit report.

If it goes to foreclosure, filing Chapter 7 will stop the foreclosure temporarily during the BK process.

[Boscoe]

If you file the bk anytime before the actual foreclosure occurs, the automatic stay would take effect, and shortly thereafter they would file for a relief from stay to continue the foreclosure process.

The thing you definitely should do is to file before the actual foreclosure occurs. That way, future lenders will treat your bk and foreclosure as a single event, and you won't have the actual foreclosure on your credit file.

So, I would recommend you file before that happens.

[SinkingFast]

Tech,............

I've consolidated all your threads into this one.

For future reference,.............. Pick a Section of the Forum and just post one thread. You'll get more responses and the answers will all be in one place.

[technoreid1]

Thanks.... I was not quite sure exactly where to post, so I posted in a few places...

Will post one ? in one place in the future.

Thanks, techno

Tech,............

I've consolidated all your threads into this one.

For future reference,.............. Pick a Section of the Forum and just post one thread. You'll get more responses and the answers will all be in one place.