Clerk of Court question

[BROKEDED]

Is there a limit to how many times a Clerk of Court can postpone a hearing or foreclosure sale?

[BROKEDED]

Anybody?

[tcreegan]

not court clerk

Hi Brokeded,

The clerk of the court only enters what other people tell them to enter. The postponements are coming from the trustee (likely), your lawyer (you should know about this), a creditor filed an objection or AP (hopefully not), or the judge (rarely)

The foreclosure is automatically stopped when you file b/c of the automatic stay. The lender has to file a motion for relief from the stay, there will be a hearing on this, and unless anyone objects, the stay is lifted and the lender can proceed with the foreclosure. (Doesn't mean they will, just that they can, I have no idea how to force a lender to foreclose quickly)

You can use PACER to see what has been filed in your case, who filed it, when they filed it, and why they filed it.

Hopefully you are just in a busy district and they are just delaying b/c they are swamped with cases. Some people have posted up to 90 day delays in really busy districts.

Tom in Colo

[justbroke]

Generally speaking, most jurisdictions have "triggers" for "lack of want" for prosecution of a case. In Florida, I've noticed that it's about 7-11 month where if nothing happens, the court will dismiss. My county court just dismissed about 3,000 cases in one omnibus sua sponte order from the court dismissing the cases for lack of want of prosecution.

I mean, the court doesn't want them just dangling on their calendar, right.

[BROKEDED]

Tom - I have a modification app being processed. It hasn't been assigned to a case worker as of yet. The app was submitted only a couple weeks prior to our foreclosure hearing. The Clerk of Court asked my wife and I if we would like the hearing suspended to a later date...at the hearing. We said YES, of course so a new hearing date was set for about 60 days later and a new sale date about 20 days after that. The Clerk looked at the Trustee after we said yes and he simply nodded yes. He really seemed like he could care less since he's probably getting paid by the hour anyway.

A modification rep said that it would be assigned before the sale date but may not be assigned before the new hearing date. Therefore, I was wondering if the Clerk had the authority to keep postponing the hearing up to 60 days at a time or if it was a one time deal.

I'll call the clerk's office tomorrow and see if the office people know and I'll update this post if anyone's wondering.

justbroke - I don't think it's lack of want in my case. I think it's maybe lack of need for another foreclosed house. I posed a few questions to the main receptionist at the Clerk's office and she let me know that the trustee attorney's firm that I had were always nice and layed back but she said there were some they saw that were kind of nasty.

Thanks guys for responding. I'll post what I find out tomorrow.

[tcreegan]

loan mod time frame

Hi Brokeded,

Kinda confused....when you say 'foreclosure' hearing, do you mean 'reaffirmation' hearing? (The loan mod process, foreclosure process occur outside the BK court.)

The clerk moved the hearing date back b/c you requested it. Again, the clerk can only do what they are told, so if you need more time to get it together with the mortgage company, ask for another continuance (legal term there for 'moving the date back')

....but, getting a loan mod from most lenders today is a loooooong process. They are swamped with requests and sometimes deliberately dragging their feet. Plus the mod may come back and not be what you expected, you send it back, they want more documentation, etc.

....so, ask your lender what the time frame is from the loan mod app getting assigned to someone to actually signing papers. Take that time frame and add a few days to it, then ask for that much continuance from the court. To cover all your bases, I would keep the trustee informed of everything and ask for their approval along the way.

Good luck with all this, especially getting a loan mod, they seem to be scarcer than hen's teeth....

Tom in Colo

[BROKEDED]

Tom - I have a Power of Sale clause in my mortgage contract and I live in a non-judicial state. That means the Lender/Servicer can use a substitute trustee to initiate the foreclosure process. My foreclosure case goes before the Clerk of Superior Court, for a hearing to find cause, in my county and if they approve the sale, it can take place as quick as 20 days later.

Most people do not attend the hearing to fight the inevitable and everthing proceeds, by default. We went to our hearing and asked...actually we were asked if we wanted the hearing to be postponed. We said yes and the Clerk delayed the hearing about 70 days. By law it's supposed to be up to 60 days but I guess he has some discretion based on his calendar.

The 1st mortgage mod app we have in is really a long shot. We have a 1st and 2nd mortgage. The 2nd hasn't said didley squat since they know that they probably won't see a dime in the end. IF...we get a mod on the first, we may pay for a while or until the 1st decides to pull the rug out (which seems to be quite common) or until the 2nd mortgage or credit cards get serious with legal action. At that time we will pursue Chapter 7. Either way, we gain a few more months in the house to prepare for post-bankruptcy, post-home ownership, life.

We would never reaffirm the 1st and 2nd as-is and probably not even if we could mod both. There would have to be some drastic changes to both mortgage agreements and only after BKing our $45k in CC debt.

[BROKEDED]

UPDATE - I spoke with a person at the Clerk of Superior Court's office this morning and asked if the Clerk of Court could delay the hearing/sale just once or if they could do it multiple times. She told me that the Clerk COULD postpone more than once. She added that she had seen the Clerk do this although it was not often and it was on a case by case basis.

So my goal is to stay abreast of the modification process and keep good notes to show the Clerk at our next hearing that we are actively involved. Hopefully if we DO get turned down for the modification, it will be after the next hearing and hopefully the Clerk will have postponed it once again.

[tcreegan]

foreclosure state, federal BK

Hello again brokeded,

I think I am getting the picture now....

You are in a State court covering the foreclosure process. NOT in a federal BK court.

The trustee you are talking about is a county or state trustee. Used to handle foreclosures, short sales, etc. outside of a BK.

You are trying to drag this out until you file the BK. Maximize the "rent free" days in the house, save $$ for your "fresh start" I assume.

Look over on the repo forum, they have many artful dodgers over there with ways to delay court processes....

Good luck with it,

Tom in Colo

[BROKEDED]

That pretty much sums it up. Some states allow a gracious amount of time for homeowners to work out a mod or save money towards rent/moving etc... My state is NOT one of them.

When I first started reading on this forum I saw that some people were still in their homes 2 and 3 years or more after stopping payments and I thought, "What a help that would be." But I quickly realized that many states were drastically different in their allowances for process and exemptions. My experience in NC is that the timeline has been pretty much by the book, give or take a few weeks. The hope that the lender would somehow ignore us due to a "backlog" vanished some time ago.

The only pleasant surprises have been the amount of notice we got before the hearing which was about 2.5 months compared to the required 10 days which is probably due to the fact that the Sheriff's office is fairly laid back here. The other is that the Clerk so willingly postponed the hearing date which I was afraid was going to be more like, "Did you fail to pay? Yes. Case closed. Proceed with the sale." The Clerk AND the Trustee were actually very pleasant and encouraged us to engage the lender to the end.

Once we made a conscious decision that we were going to miss our first mortgage payment and credit card payment, we were past the point of no return. There's no looking back. I figured if we were going to lose the house, we might as well take advantage of everything that the law allows.

I've seen quite a few families in my own neighborhood move out well before their lender foreclosed and forced them out. I can't understand that, unless a one time opportunity arises. Not only were they not SAVING money but they were SPENDING money in rent elsewhere.

Oh well, to each his own. Thanks for the tip about the repo forum. I'll check it out.