Can I be locked out.... Today?

[Mark80]

I tried to do a search for this but no luck. I filed with the court my decision to surrender the property. My mortgage company filed something to the court just today, I found it on PACER. (Noted this in my PACER question thread)

Anyways my wife was talking to her sister who has a friend that came out and out of the blue her house was locked up with all her possessions inside. The bank had foreclosed and locked her out without a formal warning, time period etc.

Since I already told them I was surrendering, and they filed something with the court. Could I come home any day now and be locked out? Or since I'm in bankruptcy will I get some kind of notice saying, get out by this day or else?

We plan on moving the week of December 29th, I just don't want to go home and find a surprise! Thanks

[justbroke]

No!

[Mark80]

LOL, thanks Just

So why do you think this people had that happen to them?

[justbroke]

(This post contains my full response.)

Your lender filed a Notice of Appearance which really means nothing to you. It just lets the court know where to send documents, papers, pleadings and that some particular lawyer represents the creditor/lender.

When you should start worrying is when you actually get sued in foreclosure. You'll get a totally different stack of papers from your local courts (not U.S. District Court where the Bankrutpcy Court sits).

Your lender has yet to file a Motion for Relief from Automatic Stay. They can't touch your home until they get that Relief and they then go to the County/Local courts, get a Lis Pendens (lawsuit) for Foreclosure filed, and then, a judgment ordered. This can take 180+ days in some states!!! (If you were already in foreclosure prior to filing, it could be sped up in some States.)

Even then, if you don't leave voluntarily, they then need to go back to court to get an Order for an Eviction. Then, if you still don't leave... they need to get and execute a Writ of Restitution (or Writ of Eviction) (or something like that), in order to have the Sheriff "remove you and your possessions onto the street"... literally.

You have time.

Your "friend of a friend of a friend" sounds like urban legend. If you're in Bankruptcy... the process is much more technical and procedural in nature. They just don't come lock up your house... unless you've avoided the Writs and Sheriff's service!!!

[Mark80]

I can get sued during foreclosure, I wasn't warned against that by my Attorney? I thought during a bankruptcy case you were protected from something like that?

[justbroke]

I can get sued during foreclosure, I wasn't warned against that by my Attorney? I thought during a bankruptcy case you were protected from something like that?

Let's back up.

Foreclosure is a lawsuit. In Florida, they file a Lis Pendens (lawsuit pending) to get the process started.

The lender is suing you, for the deed, basically. This is the only way for them to legally take the collateral (your home) from you.

Despite popular belief that the Bank owns your home, they don't own your home. You own your home. In order to seize the collateral which secures your mortgage... that collateral being the home itself... the Bank must sue you for the deed. Actually, in some States, they can only force a sale of the property. Since they aren't really suing for the deed itself... they are suing to force a sale of the property so that they can recover their losses ($$$) from the sale. if they can't recover the $$$, then they will buy it themselves and now they will have the deed.

In some States, the Bank may only need to get permission from the Court to exercise a "Power of Sale" clause in your Note/Mortgage!!! (These "non-judicial" foreclosures are quicker this way. Less Court time and pretty hard to fight.)

One they sue you and the Court grants them a judgment (summary or otherwise), they can then proceed to sell the home at public auction. I won't go into the different scenarios about who bids and if you have a 2nd mortgage, how that affects it.

Disclaimer: There are Bank, Real Estate Owned (REO) properties, but that's after foreclosure or a deed-in-lieu or other arrangement.

[BassBoy]

Very excellent explanation and break down justbroke!

To Mark80: Try not to sweat over this. Along the way, you'll receive every single document in relation to the foreclosure. It's all going to be legal mumbo-jumbo and your attorney should be able to answer any questions you have about those documents, and probably will be able to inform you when you should consider leaving. Even though most all BK attorneys do not necessairly speacialize in foreclosure proceedings, their knowledge comes from all of their experiences.

You will be well informed and you won't have sleepless nights. Everything will go as planned, and because you'll know what's going on, you'll be able to prepare yourself. And remember, we're here to help as well, just as justbroke did.

[Mark80]

Thanks bassBoy, my Attorney told me a few weeks ago to find a place to move. Keep the rent no more then my current mortgage payment, and start enjoying life.

I guess its just hard for me not to be overly paranoid about everything. I never knew there were so many "what ifs" that could happen on every level. I just have to think no matter what things will be better off down the road!