New judge not accepting original lien strip order?

[spidge]

I received a notice from my attorney stating the judge that took over last year on our case will not accept the original judges motion to strip the 2nd lien on our home. The reason given is that the lender did not respond to the original motion. The attorney want $2K to prepare, file, serve a motion, and represent us in the adversary proceeding if required. OUCH!!!!!!!!!!! The letter states that I have to supply copies of our 1st and 2nd deeds from the county records.
Is there a cost involved for these records?

My 2nd(heloc) is with BofA and many that met their criteria were forgiven last year, but I was in a 13 and I believe that left me out. Has anyone found a way to be included in the program while in an active 13?

This judge is a royal PITA and even my attorney does not understand why all these changes. Is there a way to post a complaint concerning any unorthodox actions from the judge? Is there a higher BK judge to plead my case?

This guy is just making it less and less likely that 13 filers succeed. Does not make sense to me mostly, but I do understand that he seems mainly to be fishing for the lender to respond and therefor acknowledge the lien strip. My lender did not respond to the original filing.

There's already way too much going on.

[justbroke]

There is a higher court the Bankruptcy Appellate Panel, then the U.S. District Court, then the U.S. Circuit Court of Appeals and the SCOTUS.

As for procedure, your District must either require a response to a Motion to Determine Secured Status and Strip Lien (not allowing "negative" noticing), or it is required to be done by complaint (Adversary Proceeding - AP). It seems to be the latter. (Some Districts allow stripping by merely a contested matter by motion and others require an AP/complaint.) That's too bad because the complaint process is expensive, as you can see.

For fun I looked at CASB (Southern District of California) and the local rules allow negative noticing, but the service of the Motion to Strip requires service specifically the same as Complaints (contested matters). Maybe the service was improper? If so, then yes you would do it again so that the creditor can't come back at the end and claim that they were never properly served notice. (California calls may call their "negative noticing" as something else... but we in Florida use the same "caption" information... "Notice and Opportunity for Hearing")

Again, this may just be a service issue.

[spidge]

Thanks for the response JB. I see the cost if the deeds at the recorders office are not expensive, so that will be the easy part it seems. BofA also sold my loan to Green Tree and is now with SLS. The letter stated to work on the fee over the life of my BK and they can take care of it near the end. So no hurry, but so frustrating to have to add it to the list of holes in my wallet.

[spidge]

This is still just burning me up. I don't understand how the originally approved lien strip motion from Jan. 2011 can not be considered valid three years later. I paid additional fees for this in the beginning of my case. Doesn't the servicing of the notice have to be perfected before a judge grants the strip?

So now if I want to buy out of my 13 early I have to come up with more funds.

Still fired up.

[justbroke]

The court relies on the presentations in the papers (Rule 11). Service for a lien strip is the same as service for a contested matter or an adversary (Rule 7004). (At least in my District, that's how it works.)

If a defendant (creditor) says that service was improper and they had no notice, then that is a good defense/offense. You would have to prove that they were noticed since your attorney probably used "negative" noticing (meaning if you don't respond to the original motion, then the court can consider the motion on the merits presented in the original paper/motion). Most things are done on negative notice because it saves the court a lot of time when something is unopposed.

However, what if it was not unopposed, but simply mis-served? Then you have an issue.

[spidge]

I understand jb, it just adds to the depression.

If I go to the deed office and there is no info concerning a heloc(2nd) then would this be a mute point or will I still have to go through with the AP?

[justbroke]

If your 2nd was forgiven, this is moot! If the 2nd was forgiven, there should be some sort of Release of Mortgage or Release of Lien filed with the recorder. In Florida, we have online access to all the Public Records, so it's quite easy and fast to find out!

[spidge]

As a follow up in the link below the way I read it I may have to obtain a new appraisal. Between my mortgage and BK payments the balance on the 1st has gone down quite a bit. I am still upside down but I am concerned the cost of completing this may spiral. Obtain deeds, apprasial, attorney fees=apx.$3k.

http://www.rodan13.com/PDF%20Files/Chapter%2013%20Guidelines%20-%20Motions%20to%20Value.pdf

In my opinion the judge is wasting time and money as even his own writings state that only 8 percent of 13's finish. So deal with those few that are already in the works and change the rules going forward.

Any thoughts?

[LadyInTheRed]

As a follow up in the link below the way I read it I may have to obtain a new appraisal. Between my mortgage and BK payments the balance on the 1st has gone down quite a bit.

The current mortgage balance and value are irrelevant. A lien strip is based on the balance and value as of the date you filed BK.

If the problem is a service issue, then it seems that your attorney erred and should refile and properly serve the petition without charge. If he does that and the creditor objects to the strip, then he would be justified in charging you to respond to the objection if responding to opposition was not included in your fee agreement.

[AngelinaCat]

In Florida, we have online access to all the Public Records, so it's quite easy and fast to find out!

Maybe. Not all of Florida's counties have creaked their way into the 21st century. And if a record is listed, it may not be viewable, although things are improving.

Spidge, if your record is not viewable, and you have to go to the recording department for a copy, it is usually $1.00 per page. But as JB suggested see if it is online and viewable.

[LadyInTheRed]

I'm posting here again because this came up again in another thread. Spidge is in the Central District of California. Current local rules require that a hearing be set for a lien strip motion, which is a motion under 11 USC Sec. 506. See Local Rule 9013-1 (o)(2)(M) that includes a list of motions that cannot be made by negative notice.

The rule as of May 1, 2012, also did not allow negative noticing for a lien strip motion. See Rule 9014-1(k) http://www.caeb.uscourts.gov/documen...ocal_Rules.pdf

According to the notice archives, there was a change in local rules as of 1/2/14 to "Clarify practice for motions and contested matters, and motions and matters determined without additional notice and without a hearing." http://www.cacb.uscourts.gov/news/re...january-2-2014 I can't find the rules effective 1/2/14, but since Rule 3015-1 did not exist as of may 1, 2012 and it does in the current rules, I am guessing that 3015-1 was the clarifying provision. Either that or it was added in 2013.

If negative noticing was not allowed in 2010 when Spidge filed, which I can't tell for sure is the case, but it seems likely, then the prior judge should not have issued the order valuing lien. It may be that the judge routinely did and so the attorney did what he knew the judge would allow. It sounds like this judge doesn't think the prior judge followed the local court rules and that the creditor could argue that the lien strip is invalid. Whether the attorney should have followed the written rules instead of the judges procedures is a question I don't know the answer to. But, if the attorney truly does not understand what is going on, he should figure it out.

I wonder if the past or current judges have any specific procedures on this point. The judges are listed at http://www.cacb.uscourts.gov/judges/judge-directory. If you click on the judge, you can find their individual procedures if they have any. Is there anything helpful there, Spidge? Did the new judge actually issue an order saying that you have to file an AP? Have you seen the order? If you don't have a PACER account, this may be a good time to get one.

Without looking through the case file and the local rules in effect on the date of the lien strip order, all we can do is guess at what happened. But, if I were Spidge, I would want a good explanation from my attorney about what is going on. If my attorney really was confused, I'd insist my attorney figure out what is going on and explain it to me before I paid him $2,000.

ETA: Spidge, please remember that I am not an attorney. I am just reading the court rules and what you have written. Please read the rules and draw your own conclusions and talk to your attorney about this if you think that makes sense. Or maybe even try to call the new judge's clerk or somebody else in the court to see if they can shed some light on the issue.

[justbroke]

LITR, that was a very informative review of the local rules. I still wish Spidge the best.

[spidge]

The explanation given me is that this is the only judge that is not allowing cases that were confirmed to close or discharge without the AP to complete the lien strip regardless of confirmation date. My understanding from the attorney is that the other judges were allowing cases that were confirmed before the rules changed were not requiring the AP. As much as I do not want to spend another bunch of my hard earned money I think in the long run it will be better to have it completed even if the lender does not respond. Now if there is an order for them to take care of it and they don't I will gladly seek sanctions.

http://www.cacb.uscourts.gov/sites/cacb/files/documents/JudicialPracticesSurvey.pdf

Reference pg83. You will see which judges require the AP.

Thanks for your explanation LITR. You tend to help us plain folks understand things more plainly and that is always helpful. I don't feel confused by the requirement and although frustrating in the end I think doing the AP will save me frustration later. I don't want to concern myself with the lender selling the debt and collections starting all over again and more frustration for me. I still stand by my attorney as I do believe they served them in the manor required by the court at the time and that proof was recorded and I do have the court copy.

I will attempt to allow the fees to be paid from the ch13 funds as the rules changed mid plan. The attorney said no, but I don't see why not. I just don't know where to start on that front. Trustee, court clerk, appellate court?

[spidge]

LITR, that was a very informative review of the local rules. I still wish Spidge the best.

Thanks JB. Right back at ya.