Possible modifications on a Ch 13 due to a spouse loosing a job

[erikj1974]

I've been paying about 540.00 a week on a Chapter 13 Bankruptcy for the past three years haven't missed a payment, I don't really have a whole lot of trust or faith in my attorney and before I speak with him on the subject I would like to be as educated on the issues that I have before presenting them to him.

I couldn't find anything regarding my questions on different posts. Here they are:

1. Can I modify my plan? My wife lost her job and unemployment benefits are ending soon leaving me the sole income in the house,
2. My mortgage payments were supposed to have decreased due to an overpayment in my escrow but since the mortgage company never filed the proper documentation to the trustee is there anyway I can have them lower my payments or take the difference and apply it to the balance that I owe,
3. What are the rules to possibly removing an attorney and seeking a new one if I find that person grossly incompetent or refuses to assist me in anyway,
4. Do I have any legal rights under the Obama Plan to modify my mortgage?

[AngelinaCat]

Hello erikj1974:

Welcome to the forum. I moved your post into a new thread on the Chapter 13 board, which is where your question should be. You had placed it into a FAQ thread. I also made some paragraph modifications so that your questions will be easier to read.

While I understand you don't have a lot of confidence in your attorney, you need to contact him/her ASAP about your wife's job loss, as you will have to either make modifications to your plan, or convert to a Chapter 7 (Question #1)

On removing the attorney from your case and going with a different one, (Question #3) you are going to find it very difficult to find one that will take your case now that you have this much time and money invested in your case with your present attorney. Very few attorneys will want to take on someone else's half-done case, and if you do, you are going to be charged HUGE amounts of money, and you probably wouldn't want such an attorney anyway if you are unsatisfied with your present one. It can be done, but is very problematic.

If you find your present attorney to be unresponsive, report him or her to the State Bar. You may also try contacting your trustee directly, although the office staff will try to defer you because you do have representation.

As to your mortgage questions, I will defer to someone with more knowledge in those areas.

My best wishes go with you~~

[lrprn]

1. Can I modify my plan? My wife lost her job and unemployment benefits are ending soon leaving me the sole income in the house,

Yes, because your wife's job loss is likely to last awhile, your lawyer can help you modify your plan accordingly. Your trustee is likely to ask for an update on your wife's job situation periodically, and if she becomes employed again, will require modifying your plan again to account for the reinstated income.

2. My mortgage payments were supposed to have decreased due to an overpayment in my escrow but since the mortgage company never filed the proper documentation to the trustee is there anyway I can have them lower my payments or take the difference and apply it to the balance that I owe,

If your plan does not require your trustee to make the current payments directly to your mortgage lender and you don't intend to cash out the difference, then yes, it should be fine to roll the overage back into your loan. Do ask your lawyer to be certain it's ok before you do anything.

3. What are the rules to possibly removing an attorney and seeking a new one if I find that person grossly incompetent or refuses to assist me in anyway,

You can fire your attorney at any time you are dissatisfied with his/her services. However, keep in mind that it can be challenging to find a second attorney to take on your case. Most bk attorneys don't like to take on a case they did not prepare themselves. Also the second attorney may charge you more to fix whatever mess the first attorney left behind.

However, having said that, staying with an attorney who is truly not representing you well is not a good idea either. It won't hurt a thing to test the waters with a few free initial consultations with local bk attorneys to see where you stand.

4. Do I have any legal rights under the Obama Plan to modify my mortgage?

The Making Home Affordable program doesn't give you "legal rights". It only opens doors to mortgage lenders who wish to participate in the program. Not all do.