while in chapter 13

[steph1915]

My mortgage company filed a motion to lift my stay.(I guess this is what I'm trying to say).
I had to replace my air condition unit and paid late in july august and sept. However, i am not behind, but paid late due to the situation.
My lawyer want me to paid 400.00 up front. Can i file the response myself? and if so, how do i go about it. I have untill the 23rd of Oct.

[HHM]

A Motion to Lift Stay is not a good thing, it means the mortgage company probably wants to move forward with foreclosure. You should get an attorney to help you with this one.

How late, is late, are we talking a few days, few weeks, a month, what?

What exactly was the content of the Motion, what is the Mortgage company looking to do.

I suppose if you answer on your own, you would want to stress that you, in fact, made the payments...(has the mortgage company cashed the checks).

Legally, you can file the response on your own, but given that you are talking about your house, (and assuming you want to keep the house) and if you lose, you will lose your house, you should get an attorney involved, the risks are just too high.

[steph1915]

Issues with bankruptcy

My september payment was paid late, October 4th.
But are caught up now. However, my Oct paymentwill be paid after the 15th due to i have to give the attorney $400.00. So i havent paid my OCt payment now. Dont know exactly what to do. Also, how likely will i lose my house, will the judge understand the fact of replacing my unit. Should i have receipts ready?

[HHM]

I doubt the court will be overly sympathetic to you replacing your AC, and deducting that from your Mortgage payment (wasn't there any other place to cut). Honestly, your mortgage payment is the last place you should have sacrificed....

Get the Attorney, you have screwed this up too much not too.

Sorry to be so blunt, but it's reality check time, you have essentially just bought a new AC for the NEXT owner of your house, way to go!

[steph1915]

should i even get a lawyer, you make it sound like i have already lost.

[steph1915]

i dont know what to do in this situation, but couldn't go through 100 degree weather with out some kind of air, i have small kids. So i dont mind you being blunt. But if my payments are paid up and no missed payments, will the judge work with the lawyer. Okay, if i hire the lawyer, is there a chance for me to keep my house, you make it seems as if i should move now.

[HHM]

I am telling you to get the lawyer and fight this (because you have so much to lose if you don't)...the judge will probably be sympathetic that you made the payments (strictly speaking, late payments are a breach of your mortgage agreement and your mortgage company, under their contract is typically allowed to accept late payments and still foreclose) but a bankruptcy judge might be sympathetic to the fact that the mortgage company hasn't actually lost anything and therefore may not grant their motion to lift stay.

However, you can go in and plead you case on your own..., or perhaps the house is not worth keeping, especially if you are upside down (i.e. owe more than its worth), but I suspect that is not the case.

I know how bad heat can be, try being in Malaysia in March and have the power go out...stifling...but good ole fashioned fans are helpful, and take the family to the Mall for the day to get out of the heat.

I don't mean to come off rude, but I am trying to address two issues, (1), your decision making, that is where the bluntness comes in, you sacrificed the roof over your head for a few weeks of cool weather (2) the question at hand, how to deal with the Motion to Lift Stay.

As to (1), get your priorities straight, as to (2) fight it, unless you really don't wan't to keep the house.

[lrprn]

i dont know what to do in this situation, but couldn't go through 100 degree weather with out some kind of air, i have small kids. So i dont mind you being blunt. But if my payments are paid up and no missed payments, will the judge work with the lawyer. Okay, if i hire the lawyer, is there a chance for me to keep my house, you make it seems as if i should move now.

Steph, go to a bk lawyer immediately! If you filed with a lawyer, get in touch with him/her right now. If you filed pro se (without a lawyer), then get on the phone and set up 2-3 free consultations with bk lawyers in your area as quickly as possible. Retain the one you like best - you need legal representation in this situation, period.

If your mortgage company is taking your case to court to get your stay overturned, be sure to show up for the court date - under no circumstances should you be a no-show!

Until you know more about your situation and the potential options open to you, it's impossible to tell if it's time to throw in the towel yet or not. Operate with known facts, and you need those known facts from a competent bk lawyer as quickly as possible. Keep us posted on what happens, ok?

[aa06a47]

steph, I don't think you've lost anything yet. If you have made your mortgage payment and are current, then I don't think they will forclose. It is too expensive for them to do so, and they really don't want your house, they just want your monthly payment. You do need to fight this and use an attorney. Ask the attorney if they can file a claim with the court for the 400 payment to be paid from the chapter 13 plan. If not, try and dig 400 up somewhere (but not by paying your mortgage late).

I believe your finding yourself in one of the terrible situations chapter 13's place people in. You have an emergency situation and there is no "disposible" income to use. Your attorney should be able to squash there motion, but I wouldn't go in there by myself.

[HHM]

What is likely to happen, since you are "technically" current on your payments, but have been late on making payments for the last 2 or 3 months, I don't think the judge will grant them a Motion to Lift Stay to foreclose...the compromise that gets reached in these situations is that the Judge may grant the mortgage company "An Order to Lift Stay, if it happens again". This order is commonly known as an Adequate Protection Order...it allows the Mortgage Company to immediatly lift the lift (without having to refile a motion) if you default IN THE FUTURE.

However, if I were you, I would still go to court and fight this, because you don't wan't the mortgage company to even get the Adequate Protection Order, because then they can lift the automatic stay to foreclose even if you're one day late in the future and not have to go to court to do it. (they will still have to go through the whole foreclosure process, but they won't have to get the BK courts permission).

[CAB_44]

So HHM....when making your mortgage payment, if it is due on the first day of the month.....but NOT considered late until the 15th of the month, is it technically considered LATE in the "between time", even if you make the payment a few days after the first??
Did I say that right?! LOL ....
really, though, sometimes I don't make the payment right on the first, because the pay periods are bi-monthly, but I have never gone to the 15th of the month...they do not charge me until after the 15th. But I am concerned that the mortgage company may try to give me some riff about the payment NOT being made exactly on the first...
what are your thoughts on this HHM? Thanks
CAB

[Minnymouth]

Basically if you payment is due on the 1st, then any time after that it is considered late...... from the 1st to the 15th they allow a grace period with no penalties, aftr the 15th then penalties are applied.

So legally they can report you late on payments because they are due on or before the 1st...

[CAB_44]

oooouucchhhh...I may be in trouble then...
thanks Minny~

It's such that I can make the payments 6 months of the year before or on the first, but the other six months they are a few days after the first.....
In Dec, it would start being before the first again...
looks like I better buckle up and get this next one in BEFORE the first.....

[HHM]

If your mortgage company has an explicit and specifically defined grade period, I wouldn't worry about...so long as you get your payment in during the Grace period, there should be no adverse consequences.

I haven't heard of a Mortgage Company getting rid of the Grace Period for a person just because they filed BK, at least, not without giving the person notice. However, I have heard of (GMAC is notorious for this) mortgage companies who stop sending Monthly Statements when a person files BK.

[bkbiker]

Hey 1915,

Nothing like living the experience to learn a good lesson, I’m sorry that you have to go through this while in bankruptcy, I know life is already hard enough.

I would call up the bankruptcy lawyer you used when filing and ask politely and assertively for help with this motion, offer to make payment for his/her services.

Good luck,
bkbiker