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Motion For Relief From The Automatic Stay

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  • Motion For Relief From The Automatic Stay

    I have a 341 meeting scheduled for Monday, May 12.
    Today I got a letter from my mortgage company, Motion For Relief From the Automatic Stay and Abandonment of Property by Trustee. The letter is full of legal jargon and ends with, 'they want and end to the stay and want to foreclose immediately.'

    I am surrendering the property so this is not a surprise. My 341 is Monday and I expected I would have until my discharge before I had to leave. I also realize that this foreclosure could occur in months or years. I am simply trying to get a better estimate of how much time I have left.
    (BTW, I have no intention of leaving until I see my name is off the deed. My attorney told me I am free to leave anytime but it would be to my advantage to live here rent free until I must leave).

    I am in TN, a non judicial foreclosure state. Anyone care to guess how long I have left?

  • #2
    There is no way to guess and no one can tell you whether the (foreclosure) process would be accelerated. Once the creditor receives relief form the automatic stay, they can then start the foreclosure process. In Florida, we have judicial foreclosures and they take an absolute minimum of about 6 months (from notice of intent to accelerate). Floridians, however, have enjoyed foreclosure lawsuits taking 12-36 months to come to judgment.

    Non-judicial foreclosures are rather quick and can be completed in 90 days. They are also very difficult to fight since you don't hold the title (a "trustee" third-party holds title).

    Now, if the process had not officially started, then I would say that in 30 days, the RFS will be granted. The creditor will then 'start" the process. That process would take 90 days (approximately). That means at least 120 days (from today) that you would be in the property. That should surely be later than your discharge date (which is in 60 days form your 341 Meeting... so figure 7/12/2014 for your discharge). There may be a way to slow the foreclosure down but I am unaware of strategies for non-judicial foreclosures.
    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
      Justbroke,

      Thanks. I was just looking for a ballpark estimate and your projection of 120 days sounds good to me.
      I also realize that it could take much longer. I only hope it doesn't happen mid-winter.

      Comment


      • #4
        Today, June 16, I received a copy of the order for relief from automatic stay.

        I can only assume the bank will start foreclosure proceedings. I am also aware the bank can delay the foreclosure.

        It's nice to be able to put away the money by not paying the mortgage but it sure is nerve racking.

        Comment


        • #5
          You can't assume anything! Just because the bank filed a Relief From Stay (RFS) motion and it was granted, does not mean that they are ready, willing, or able to start foreclosure proceedings. The RFS just ensures that should they decide to proceed with any sort of dunning (not attempting to collect, but "threatening" foreclosure), they are well served by obtaining the RFS as early as possible.

          I would not go crazy and think that they will file a foreclosure lawsuit tomorrow. This is just part of the process. I don't recall whether you have even received an Acceleration Notice or a Notice of Default. Those letters are a true indicator of an intent to "start" the foreclosure process (as they are the initiators -- required -- of the foreclosure process).
          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


          • #6
            Originally posted by justbroke View Post
            You can't assume anything! Just because the bank filed a Relief From Stay (RFS) motion and it was granted, does not mean that they are ready, willing, or able to start foreclosure proceedings. The RFS just ensures that should they decide to proceed with any sort of dunning (not attempting to collect, but "threatening" foreclosure), they are well served by obtaining the RFS as early as possible.

            I would not go crazy and think that they will file a foreclosure lawsuit tomorrow. This is just part of the process. I don't recall whether you have even received an Acceleration Notice or a Notice of Default. Those letters are a true indicator of an intent to "start" the foreclosure process (as they are the initiators -- required -- of the foreclosure process).
            Justbroke,

            Thanks for the post. I did receive the Acceleration Notice and Defaut in Janruary this year.

            I was told by a bank employee that my mortgage company will not be in any rush to foreclose. The RE market is stagnant here and my house is $27k under water. There are also HOA fees. I am taking care of the house maintenance, (lawn and such).

            Comment


            • #7
              I think banks are less motivated when a homeowner keeps up HOA dues, maintains the lawn, keeps the place in good condition. My guess is that the banks may be saving money and can ride out the negative equity in the home while the homeowner maintains the place. One would think that the bank would just cut their losses and leave, but I don't see that happening too often (in Florida).
              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


              • #8
                Originally posted by justbroke View Post
                I think banks are less motivated when a homeowner keeps up HOA dues, maintains the lawn, keeps the place in good condition. My guess is that the banks may be saving money and can ride out the negative equity in the home while the homeowner maintains the place. One would think that the bank would just cut their losses and leave, but I don't see that happening too often (in Florida).
                Justbroke,

                Your post brings up a questionable issue. I have read many posts where lawyers are advising their clients not to pay HOA fees when surrendering a house. I am in a unique position of having no assets and having protected income, (SS and ERISA pension), and my attorney has advised me not to pay HOA fees. This leaves the HOA with only the option of filing a lien and possibly foreclosing. In many cases banks are holding back on foreclosures especially where HOA fees are involved and homes are under water.
                My question is; can a homeowner in an HOA use this information to their advantage?

                In certain situations a HO may want to have their property foreclosed ASAP. When the banks are delaying foreclosure is it possible a HOA could be motivated to go ahead with foreclosure if the HO were not to pay the HOA fees?

                On the other hand there are many who want to stay in their homes as long as possible. Could their bank be swayed to delay a foreclosure if the HO was paying their HOA fees?

                The amount of the HOA fees may be also be an issue. I don't think a bank would be concerned where a HOA fee was $25 monthly. However, I think they might be when the HOA fees exceed $100 monthly or more.

                Comment


                • #9
                  The only cases where I have seen the homeowner "provoke" a foreclosure, is when the homeowner and the homeowner's association (HOA) collude to force the bank's hand. Okay, maybe the word "collude" is too strong, but this has been one way to motivate banks. It does not always work and not every HOA/Condo Association even wants to actually foreclose (although they may obtain a money judgment against the homeowner!).
                  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


                  • #10
                    Justbroke,

                    Thanks for the post.

                    I am trying to weigh whether to pay the HOA fees going forward or not after my discharge is finalized and the stay is lifted.

                    My attorney advised me not to pay unless I wanted the benefits that come with the HOA membership. I really don't use the benefits offered and normally I could care less. However, a neighbor brought up an issue I had not considered. The HOA has their own fire department and ambulance. The closest service of these types is 15 miles away. He said the it could be that if I need these services they might not respond.
                    (There was a recent case here in TN, different area, where the township charged a fee for fire department service. When there was a fire on a home that had not paid the fee they did not respond and the house burnt to the ground).

                    At my 341 the trustee suggested I stay in the home as long as possible and he said that could take as long as three years.

                    My HOA fees is about $100 monthly. Cheap rent I agree. One of my concerns is that if I do start to pay these HOA fees again it may give my bank more incentive not to foreclose. I would like to move on but I am stuck here until my name is off the deed.

                    The HOA has threaten to put a lien on the house. It is my understanding they would do this anyway for the sum of their fees prior to my filing that was discharged. I have protected income and no assets, SS and ERISA pension.

                    BTW, I had mentioned to my attorney that I wanted to move on after my bk discharge. He told me to go ahead and leave as there was nothing anyone could do against me. However, he said this would be foolish as I can remain in the home until the bank forecloses and save money.

                    Comment

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