CH13/Foreclosure

[faroff]

Long story short with a question.

I have been in BOA loan mod. hell and currently under review(have
been for 61/2 months now) with HAMP. However I have a sale date looming
for 3/21.

I had filed for CH7 in 2010, never got a discharge as a AP was filed,AP was
dropped if I agreed not to seek the discharge. Just a crazy nightmare. The stay
of relief was lifted on my primary residence.

So question- Can I now file CH13, stop the foreclosure and keep my home?

[despritfreya]

I cannot tell from your posting history if you were denied a discharge under 11 USC 727 or if your case was dismissed. Nor can I tell if the AP that was filed was anything more than a turnover complaint.

1. If you were denied a discharge under 11 USC 727, while you can file the 13 you will not be entitled to a Chapter 13 discharge of any debt that was incurred prior to the filing date of the Chapter 7.

2. If your Chapter 7 was simply dismissed (not denied a discharge) then you should be entitled to a Chapter 13 discharge if you complete the Plan, but one would have to look at the Order dismissing the Chapter 7 to see if any limits to refiling were placed upon you.

Des.

[faroff]

Desprit- Thanks for the feedback. I'm still relatively confused, Not unusual . We had an AP filed against as frankly our attorney was
inept. Now I will certainly own up to my mistakes, but this one was out of my hands. The trustee stated he would drop the AP if we
agreed to not go after a Discharge. So I don't know where we stand. The AP was dropped but I honestly don't know if the actual case
is dismissed. I believe since we can not get a discharge we are still saddled with the debt,albeit most of it has expired with S.O.L. in our
state.

I do know the stay of relief was lifted on the house which is our primary residence. We are in a HAMP review but still have a foreclosure
sale date looming. I may not be able to file to resolve any debts I put in the original 7 case, but if the Stay of Relief was lifted can I not
still file 13 to protect my house?

[despritfreya]

I think you need to find out exactly what happened to the 7. There has to be an Order signed by the Judge either DISMISSING the case or DENYING the entry of a Discharge. Get a copy of it.

Regardless, assuming your case was either dismissed or the discharged denied, you CAN file a 13 unless the Order dismissing contained a provision from barring you from filing again. If you were denied a discharge you may not be entitled to a discharge in the 13 but that does not mean you cannot file.

Assuming no bar to filing another case, if your 7 was dismissed within 1 year prior to the filing of the 13 the stay is good for 30 days. You must get the Court to extend it beyond that (not a big deal).

Edt: Need to add. . . if your case was dismissed due to a failure to obey a court order (such a reference would be in the Order dismissing), then you would be automatically barred from filing a new case within 180 days of the dismissal.

Hope this helps.

Des.