Chapter 13 and 401k hardship

[Kendel72]

Here is my quick story, we filed 13 in July and we finally went to court in September. Problem is August and Sep was not included because it took my lawyer too long to finalize everything and he filed in July! Today we recieved the dreaded letter from mortgage company for request for lift of stay! We owe 2 months mortgage and within weeks it will be 3 months, my question is can I get a 401k hardship with me just filing 13? We are really worried about the lift of stay.

[HHM]

Wait, I don't understand, you filed in July (so what did you lawyer not have for August and September)...did you have your "confirmation" hearing in September...or your 341 meeting.

If its your confirmation hearing, that is actually quite fast.

Were you aware that you had to KEEP paying your MORTGAGE after you filed?

[Kendel72]

We went to see the lawyer in april, at that time he told us if we were going to file not to worry about paying anything that was going to be in the 13. We ended up going back about a month later and retained him, we started the paperwork and he was SLOW as molasses! It took him almost 2 months to get our papers ready to sign and set up our court date, this took place in July, our court date was for September. Yes it was the confirmation date where we met trustee, when we signed the papers in July we had another mortgage payment due right after that, we asked if this could also be placed into the BK and he stated that it should not be a problem because when we go the mortgage company will request all past due payments be paid in the claim. Well they didnt and they only requested may, june and july. So there we were in court in september and at that time 5 months behind and they only put 3 in it, my wife called mortgage company and they said just pay when you can. But today we recieved the letter to lift the stay.

[lrprn]

...when we signed the papers in July we had another mortgage payment due right after that, we asked if this could also be placed into the BK and he stated that it should not be a problem because when we go the mortgage company will request all past due payments be paid in the claim. Well they didnt and they only requested may, june and july. So there we were in court in september and at that time 5 months behind and they only put 3 in it, my wife called mortgage company and they said just pay when you can. But today we recieved the letter to lift the stay.

You are in big trouble here. Your "slow as molasses" lawyer needs to get moving at light speed and file an amended Ch 13 plan that includes all these arrears as soon as possible! If he doesn't and if the court grants the lift of stay, your house is headed for foreclosure. Get moving!

[Kendel72]

What if we get the two back payments paid in the next week? If we catch it up before any court dates can the judge still lift it?

[aa06a47]

Unless your mortgage company hasn't been watching the news, they don't want your house back. I would have you slow ass attorney quickly file an amendment to get the arrears in the plan. Note, are you normal home payments being paid in the plan, or are you paying them outside the plan.?

[Kendel72]

Paying outside them outside the plan, they were just putting the past due payments on the BK.

[lrprn]

Paying outside them outside the plan, they were just putting the past due payments on the BK.

I'm trying to understand this so be please patient with me...even though your plan was set up for you to make the main mortgage payments yourself outside the plan, you didn't make the payments for August and Sept after you filed, so now those payments are in arrears too and your lender has filed to lift the stay because of these two missed payments...do I have that right?

[Kendel72]

Yes you have it right. We actually called our mortgage company about 2 weeks ago and asked if it was going to be a problem and we were planning on making a payment soon and could we make payment arrangements on the past due not included in the bankruptcy, the mortgage company said they didn't do payment arrangements while in bankruptcy and just to make a payment when we could. Now we have this letter of "lifting the automatic stay"

[Kendel72]

By the way it was our 341 meeting. What is the confirmation hearing? I thought the 341 meeting was all we had to do.

[coma]

IN CH13, the confirmation hearing is in front of the judge with your attorney and the trustee. They look at the plan and all the ins and outs of it, then, if the judge confirms, great. If not, the attorney has to work something out. Often the trustee will object to the plan as it is filed, so the confirmation hearing make certain that all objections are ironed out. It is separate from the 341, and if you are represented by an attorney, you do not have to go.

[lrprn]

By the way it was our 341 meeting. What is the confirmation hearing? I thought the 341 meeting was all we had to do.

In most courts, you file first. 3-6 weeks later you have your 341, and several weeks after that there's a confirmation hearing. You must attend the 341 meeting, but only your lawyer is required to attend the confirmation hearing. Your plan is confirmed or not confirmed during the confirmation hearing.

Rarely in smaller courts, sometimes the confirmation hearing happens right after the 341 meeting, but this is unusual.

[lrprn]

Yes you have it right. We actually called our mortgage company about 2 weeks ago and asked if it was going to be a problem and we were planning on making a payment soon and could we make payment arrangements on the past due not included in the bankruptcy, the mortgage company said they didn't do payment arrangements while in bankruptcy and just to make a payment when we could. Now we have this letter of "lifting the automatic stay"

Kendel72, you have made a terrible mistake. Didn't your lawyer explain to you that you HAVE to make your mortgage payments after you file? The trustee was only going to catch up your arrears - that had nothing to do with making your regular mortgage payments.

And of course your mortgage lender is going to tell you to do nothing - that way they have grounds to lift the stay and get your house!!

You are in serious trouble here - your mortgage lender has already filed to get your stay lifted for non-payment and the judge is going to ok that unless you can get current RIGHT NOW! Can you?

When is the hearing to lift the stay? You and your lawyer MUST be there to explain the confusion. Hopefully you can get out of this mess with your house, but by not paying your mortgage for two months after you filed, you've opened the door wide to legal foreclosure. I pray you won't lose your house over this. Keep us posted on what you and your lawyer plan to do, ok?

[Kendel72]

The hearing is Oct 23rd. We are going to call the lawyer tomorrow, but should have the past due amount paid within 2 weeks. Do you think that we will be ok if we get it current by then?

[lrprn]

The hearing is Oct 23rd. We are going to call the lawyer tomorrow, but should have the past due amount paid within 2 weeks. Do you think that we will be ok if we get it current by then?

There's just no way we can predict what's going to happen, Kendel

Luckily your lawyer will be familiar with how other cases like this have been handled by your trustee and local court judge in the past. We're all hoping that everything works out in your favor - that's for sure!