How soon can I refile if dismissed?

[overspent]

Filed chapter 7 in 2005. Just filed chapter 13 in october 2010. Due to complication about mortgage issue, the trustee insists on surrnding house to servicer while I want to fight, I may let the trustee dismiss the case for now. How soon can I refile?

[HHM]

Let's back up, because this case sounds like a total mess. Do you have an attorney?

Why does the trustee want to dismiss? It is the trustee's job to find objections and file a motion to dismiss; your job (or your attorney's job) is to fight and otherwise satisfy the trustee to keep the case moving along. The mortgage complication is not really the trustees concern so there must be something else at issue in your case, what is that issue?

[despritfreya]

I agree with HHM. Something else is going on. Please give more details.

Des.

[overspent]

I am not paying mortgage currently. Due to the large arrearage ($28K) and mortgage payment is well over comparable rent for the same house, my payment plus arrearage would be 2900/monh plus tax and insurance while I can rent for1400. That's why I submitted a plan with 1400 rent budget. Now the trustee is saying since I am not paying rent he want to include the 1500 in the plan which is OK with me. Howeve, he also mentions that I will apply for loan mod to cure for arrearagewith Bank Of America (servicer) or surender the house. I do not want to surrender the house since I knowBOfA can not foreclose since they do have the note, even if they do, it's not properly indorsed. My credit card debt is only about 35K, so my thinking is I can settle the crdit card debt for 20%, then fight BOfA in state court and Federal court since this BK trustee do not understand that BOfA is not my note holder and do not have the legal standing to foreclose. Refiling is my backupplan if I go this route. How long I can refile if I voluntarily dismiss and how long if dismissed by th Trustee?

[HHM]

Your case is FUBAR (look it up) from the start, no legal basis in chapter 13 to reduce the mortgage payment. Sorry.

I am guessing you do not have an attorney and haven't even met with one to discuss your options. I hate to be harsh, but your case is headed to dismissal and eventually you will lose your house short of a miracle modification or the money becoming available to cure the arrears.

[despritfreya]

Again, I must agree with HHM. If you cannot afford the home let it go. Going down the path you have chosen will only end in loosing it anyway. Move on. Life is just too short.

Des.

[shark66]

I might not be following your train of thoughts correctly, overspent, but if I understand your game plan there's really no room - or need - for filing BK of any kind in it.

If you know how to challenge the validity of note in courts, that's the route you should be on right now...

Good luck.

[jetsfan2010]

Its not worth it. Take it from someone who had to let 1 case dismiss and come to realization that overpaying for a house that isn't worth what they say it is just isnt worth it. Get a GOOD attorney and refile.

[HHM]

Let's back up on the "challenge validity" of the mortgage idea for a second...

First, you are not challenging the validity of the underlying mortgage (short of predatory lending issues). YOU TOOK OUT THE LOAN AND PRESUMABLY MADE PAYMENTS. So, you, the borrower, KNOWS there is a mortgage, and at some point you stopped paying. What is being challenged is a "particular" servicers right to foreclose. Those are wildly different issues. The problem is, the lay person, the media, etc are confusing the issues. Also, in my view, in the big picture, not much is going to come of the all this "foreclosure mistakes" because the mortgage's themselves are valid insofar as "someone" had the right to foreclosure when the debtor didn't make the payment, the only issue is who?

The only homeowners that may eventually benefit from this issue are those that were accidentally foreclosed upon who were actually current on their mortgages. Everyone else IS subject to foreclosure. For any action, there needs to be the wrongful act and there needs to be damages. If the homeowner defaulted on the mortgage, then a foreclosure at that point, even if handled somewhat improperly (the wrongful act), hasn't "damaged" the homeowner. Despite all the rumblings and uproar over the mistakes in the foreclosure process, not much is going to come of it that will benefit the individual homeowner. It will mostly be states attorneys' general extracting fines from the banks, but there will be very few private causes of action that get any benefit to the individual homeowner.

Bankruptcy wasn't necessarily the wrong venue to bring this action, my guess is you did so because you needed to stop the foreclosure in a hurry. However, you need to to do the BANKRUPTCY side of that case correctly so you can go on and have the fight with the mortgage lender. The problem is, you didn't do the BK side correctly and now you have problems. Reason being, assuming there was an active foreclosure and the bank filed a Motion for Relief from stay; when, or if, you refile, the automatic stay will not apply to any foreclosure action. You will need file a motion and have a hearing to stop the foreclosure.

My admonition for a situation like this...if you were really serious (not just desperate) to save your house, you would have hired an attorney. You would have found a way. Anything less, your actions do not appear to match your conviction and amount to someone planning to go to Hawaii by driving.

[overspent]

I think my case is turning out to be OK. Had confirmation scheduled last week but setover. The trustee objected to theplan initially because I filed with a rental budget ($1300 rent monthly)butnot currently paying due to dispute with BOfA and still staying in the house, he wanted me to pay the extra 1300 into the plan as long as we are not paying the mortgage whch is OK with me. BOfA objected to the plan because there was no payment to them in the plan. They wanted me topay 2150/month while applying for a loan mod. I can not afford this payment so we'll tell them if you can prove you own the note you can have the house. Furthermore, if we agree to pay 2150.month it's like we admit that they are the legitimate holder of the note. We know that BOfA is servicer for Bank Of NY who came in when my loan defaulted and bought my loan for pennies on the dollar and tryingto foreclose to realized their gain. We'l figh them to the end.

[overspent]

By the way, HHH I do have an attorney. Inintially, he thought Oh you must pay BOfA what they want or lose the house. But after 2 hours of explaining to him about the broken chain of title on my house and showing the fraudulent Assignmnent and the 10 BK cases where debtors prevail when Movant can not prov their standing, he fnally gets it and agree to go along. I am in my 14 month of fighting. Thanks for the encouragement anyway.

[justbroke]

How much are you paying your attorney to fight the ownership issue? I think, in the end, you'll end up without a house or in a plan with huge arrears to pay. From what you're writing, they are not foreclosing! Are you just challenging the Proof of Claim filed? Did they even file a proof of claim? I suppose that you are paying your attorney to fight the Objection to Confirmation on the basis that the Movant (party objecting) is not a party in interest?

Strange strategy... very strange.

I recommend looking at this thread that touched on the same topic.

As an aside, can you list those 10 BK case citations?

[despritfreya]

In the end, the "show me the note" argument will be a loser but, you will get to live in the property "rent free" for another year. . .

However, sounds like the Trustee has caught onto the "free ride trick" and wants the line item in J which states you are paying "rent", actually paid, but to him. Wish more Trustees would pick up on this.

Keep us posted on your efforts. Will be interesting to see how it all ends up, be it in your favor or not.

Des.

[justbroke]

However, sounds like the Trustee has caught onto the "free ride trick" and wants the line item in J which states you are paying "rent", actually paid, but to him. Wish more Trustees would pick up on this.

I must admit, there are some very smart Chapter 13 trustees!

[overspent]

John Kemp vs. Contrywide Case No. 08-18700-JHW New Jersey Mde naional headlines: CNB, Bloomberg, Yahoo
Bailey vs. BONY Arizona pro se debtor
In re: KANG JIN HWANG, Debtor. Case No.: LA08-15337SB, Chapter 7
ROBIN HAYES, Chapter 13 Debtor Case No. 07-13967-JNF
LAVERL H. WILHELM Case No. 08-20577-TLM Idaho
KERMAN J. MINBATIWALLA, : Case No. 09-15693 New York
OLGA D. PAREDES vs. PHH Case No. 09-22261 New York
KENNETH WELLS vs. US BankCase No. 08-17639 Ohio