BofA has an incorrect record of our BK being dismissed & my lawyer is useless

[justbroke]

Thanks everyone for the good ideas. Sounds like stuff I can definitely handle (attorney still hasn't called us back and my husband called twice more last week).

I think that your attorney still should help you out. However, many Chapter 13 fee agreements only include the attorney's fees up to and including confirmation. Anything post-confirmation is on an hourly rate. Still, though, he should help you more than just "writing" a letter, but generally speaking, an initial stay violation is handled by "just" writing a letter.

It's the subsequent violation after the letter (and a cooling off period) which you should really get mad about.

[justbroke]

So if this is the case, JB, then why do mortgage lenders have to file with the court to get permission to foreclose, even if the filer indicates they intend to surrender?

In a confirmed Chapter 13, they don't have to if they wait for confirmation. However, since confirmation takes many months in most Districts (at least 5 months in Florida), the lender would generally file for relief from the automatic stay so as to speed up the process. Many lenders also file for relief just to make sure. I have read cases where lenders filed for relief from stay in a Chapter 7 case a week or so before discharge, only to have the Judge deny the relief as "moot".

Simply put, a secured creditor does not need to file a motion for relief from the automatic stay if the plan surrenders the property and the plan is confirmed.

[Ifonly]

I would love it if they took the darn house - I made peace with surrendering it a long time ago.

What bothers me is that we spoke to their bankruptcy department and they said that our bankruptcy was dismissed on the first mortgage - this is the one they're trying to collect on. The second mortgage shows our bankruptcy as being an active chapter 13 - same case # and everything. They don't seem to realize how contradictory that is.

So on the second mortgage, I get the little "this isn't a bill, we know you're in bankruptcy and listen to the court and your lawyer" statements.

I used to get those on the first mortgage.

Now I get actual invoices with escrow amounts, ACT 91s, collection calls, the whole kit and kaboodle. Thanks everyone for the advice. I know the end result of them taking the house is the same - that's not what bothers me. What bothers me is that they're hitting my credit report with late payments again and it's as if I'm back where I started. I paid $4K in attorney's costs and went thru this process for the protections so I don't think it's unreasonable to get the protection I paid for.

Thanks everyone for the good ideas. Sounds like stuff I can definitely handle (attorney still hasn't called us back and my husband called twice more last week).

The only sortof fun thing here is now that BofA is so screwed up with this - they just paid the property taxes for us. Hey, that's good for my community and township - I never wanted to see them suffer and now BofA footed the bill versus a prospective buyer.

[lrprn]

Simply put, the confirmation of a Chapter 13 Reorganization Plan automatically lifts the stay as to any property not provided for in the Plan. This also means that any secured creditor not provided for in the plan, is no longer bound by the automatic stay. It ceases as to those claims.

So if this is the case, JB, then why do mortgage lenders have to file with the court to get permission to foreclose, even if the filer indicates they intend to surrender?

[justbroke]

Please forgive me, and it may be just me and how tired I am. When your Chapter 13 plan is confirmed, anything that you listed as surrendered is no longer under the proection of the automatic stay. This is by design.

Simply put, the confirmation of a Chapter 13 Reorganization Plan automatically lifts the stay as to any property not provided for in the Plan. This also means that any secured creditor not provided for in the plan, is no longer bound by the automatic stay. It ceases as to those claims.

Now, they can send invoices and even inform you of foreclosure proceedings. However, they can't "bill" you. This is why they put the obnoxious, but required, notice that you should ignore the bill if the debt was discharged in Bankruptcy. I would try to keep them from calling you.

[lrprn]

Given that your lawyer is useless, you need to do three things:

1. Send BofA a copy of your confirmation order from PACER along with your case number. Have it notarized, then send it registered, return receipt, and send it to both the current BofA address that is sending you notices of payment and also to their bankruptcy division (if they have one).

2. Contact a NACA (National Assn of Consumer Attorneys) lawyer in your area. They will be *very* interested that BofA is violating your automatic stay even after notification that your Ch 13 case is active. They work for a % of they will earn from winning the court case that BofA is going to lose, so your costs going in should be minimal to zero. Here's how to locate and contact a NACA lawyer in your area - http://naca.networkats.com/members_o...rya.asp?token=

3. Immediately report your lawyer to your state's lawyer regulation body or bodies for misrepresentation and ethics violations. You can find the contact information for your state's lawyer disciplinary body here - http://www.abanet.org/cpr/regulation/directory.pdf - scroll down to find your state.

Here's how to report your current lawyer for ethics violations - http://research.lawyers.com/Reportin...iolations.html and scroll down to find the link for your state. In some states, the legal disciplinary and ethics agency are the same.

Pursue getting this mis-communication with BofA resolved every single business day, and be assertive. BofA might be able to convince a court to allow them to take your house as things stand now, and getting it back if they get permission to legally foreclose on it is much more difficult than stopping that from happening in the first place. Good luck! Please keep us posted on how this progresses - we'll help you as much as we can.

[forgotten]

Make sure you read over your plan and the confirmation order and make sure the automatic stay did not terminate upon confirmation of the plan since you are surrendering the home.

I know my plan has a section for property you are surrendering and it clearly says the automatic stay is terminated to allow the lender to foreclose or take posession of the collateral.

Edit: I just realized they are trying to collect money from you also. Either way, they can't do that!

[walkthaplank]

Like Newbie said, get it off of PACER and let the games begin.

[newbie2]

You're not wrong, newbie, but that's not what they're doing. I would love it if they lifted the automatic stay and took the house back like they're supposed to.

They've resumed collection activities against us which they are threatening foreclosure for non-payment and then threatening a deficiency suit. Basically, as if we never filed for bankruptcy at all. They've started hitting our credit again.

walktheplank gave me some good advice. I'm not sure if my lawyer ever sent me a copy of our confirmation but if he did, I have it. I know the date was December 5. I'll start with that.

Gotcha. I get it now.

You can go on Pacer and print out a copy of your confirmation order. Good luck, I hope you get satisfaction soon.

[Ifonly]

You're not wrong, newbie, but that's not what they're doing. I would love it if they lifted the automatic stay and took the house back like they're supposed to.

They've resumed collection activities against us which they are threatening foreclosure for non-payment and then threatening a deficiency suit. Basically, as if we never filed for bankruptcy at all. They've started hitting our credit again.

walktheplank gave me some good advice. I'm not sure if my lawyer ever sent me a copy of our confirmation but if he did, I have it. I know the date was December 5. I'll start with that.

[newbie2]

We surrendered our home in the bankruptcy therefore we stopped paying over a year ago. The house has been vacant for months. They're supposed to take the house back as part of the bankruptcy, not pursuing us thru the normal collections/foreclosure actions - they are basically saying that our bankruptcy doesn't exist anymore even this is completely and patently untrue. Couldn't they just check our case in the system? They're such a-holes.

I may be wrong, but I thought even if you surrendered the home that the lenders had to follow normal foreclosure proceedings that applied for your state. Sending you notice of the impending foreclosure would be following the normal course of action, as long as it says somewhere on their statements/documents "this is not an attempt to collect a debt".

[walkthaplank]

Your attorney is useless, I'm sorry.

What you need to do is send a copy of your order of confirmation to BofA mortgage department and a copy to BofA's General Counsel (certified mail return receipt) with a letter advising them that continued violation of the Federal Bankruptcy Court's order will be met with an Order To Show Cause Why Sanctions Should Not Be Imposed. That you will be seeking damages and legal fees. Advise them that if you have not received notice from them acknowledging receipt and conforming to the court order within 10 days will result in filing this motion. Include in the letter that your mortgage department has already confirmed to you that they have notice that the plan was confirmed, they are choosing to ignore it. Reference both accounts so there is no wiggle room. Be very firm, short but concise. If they continue their harassment, contact a couple of BK attorney's in the area and see if they are willing to take this on, if not you may want file the motion pro-se and fire your lawyer. This is a slam dunk.

Now how you proceed with your attorney is another story. You should not be dealing with this, this is something that your lawyer should have done. For goodness sakes, we're talking about a form letter where you plug in pertinent names and addresses. If you do fire your lawyer, you may want to go to the bar and see about refunding the extra expenses.

[Ifonly]

Nope, they didn't file for relief. They literally think that our bankruptcy no longer exists because that's what their little computer system says - that it was dismissed, meanwhile I know for a fact it wasn't dismissed. I still make payments, I get my little quarterly statement from the trustee, in fact I just got the request to mail in my tax return. They're breaking the automatic stay and my attorney seems to simply not give a crap.

[cwillie]

You say you let your house go? Maybe they got a relief from the automatic stay from the bankruptcy court and can now proceed with the foreclosure? just a thought. Although not sure why you wouldn't have received a copy of the Relief from Automatic Stay.

[Ifonly]

We surrendered our home in the bankruptcy therefore we stopped paying over a year ago. The house has been vacant for months. They're supposed to take the house back as part of the bankruptcy, not pursuing us thru the normal collections/foreclosure actions - they are basically saying that our bankruptcy doesn't exist anymore even this is completely and patently untrue. Couldn't they just check our case in the system? They're such a-holes.