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motion to lift stay order

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  • motion to lift stay order

    Hello everyone,

    We filled chapter 13 back in June of 2017, the plan was confirmed in January 18. We just received a letter from mortgage attorney trying to lift our stay order. Seems the mortgage company never got checks for November,December and January. Wed don't get monthly statements anymore and now after looking back they never cashed the checks I don't know if we put the wrong address, one the letters, or they just got lost, they cashed the one we thought it was for February. Yes in looking back now we should have realized the checks were not cashed and called the mortgage company, but dumb us we just thought of this now, If I pay the amount being requested before the scheduled hearing date of 2/28 will they drop the case or will the order be lifted and foreclosure will continue?

    Thank you

  • #2
    If you still have the money you can pay the past due amount and file an objection to the Motion for Relief form the Automatic Stay (RFS). I don't know what happened either, but this can be resolved. In the objection I would say that payments were made to the address of record "blah blah blah, Anytown, USA" and that no payments were returned. Worse case is that you go into the hearing with the certified funds and tell the judge that you'll pay them right then, but that no payments have ever been returned. You may need to stop payment on those checks and show proof of that as additional evidence that the creditor was sent checks.

    In the end, this is curable. In fact, you could technically ask for time to cure this post-petition arrearage. Since those funds are still in your bank, I would just pay them immediately. If the hearing is coming up within 2 weeks, you may not want to mail a payment unless you can send it to the bank's "overnight mail" address so that you can get a signature. You would want to use certified funds for that.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

    Comment


    • #3
      Thank you Justbroke, always very helpful and thankful for your advice. would you recommend to call the mortgage payment and talk to them about paying the amount and reply to the motion that payment will be made to the mortgage company to cure the past due amount?

      Comment


      • #4
        They may not want to talk to you so they don't violate the stay, but you could find out the payment address for overnight payments (where you can send a payment certified). I'm assuming that you are represented by an attorney so your attorney will now the better way to proceed. Overall I don't think this is an issue, but there can be fees associated with not only the bank filing the RFS motion ($250 or more), but also your attorney's response ($250 or more) which will be added to the claim for the mortgage creditor.

        If you can talk to the BK department at that creditor, they may allow you to pay, but you still have to deal with the RFS motion.
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog


        I am not an attorney. Any advice provided is not legal advice.

        Comment


        • #5
          Quick update. Spoke to my attorney they told me they filed a response and asking for the actual amount due so we can send a certified check. Just one more question if we pay before the hearing date do we still need to physically attend the hearing?

          Comment


          • #6
            You don't have to attend if your attorney is attending.
            Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
            Status: (Auto) Discharged and Closed! 5/10
            Visit My BKForum Blog: justbroke's Blog


            I am not an attorney. Any advice provided is not legal advice.

            Comment

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