Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

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13 converting to 7, then filing 13 again?

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  • 13 converting to 7, then filing 13 again?

    Has anyone been through this? We filed a chapter 13 a little over 2 years ago. Things were good until my husband lost his job-twice! Of course during that time, we got behind in all things including the mortgage (mortal sin, I know). We paid them when we could and they kept cashing the checks. Well, it comes to the fact that this caught up with us and they were dismissed from the BK (arrears). Fine. We thought we could work something out with them, no dice. They don't seem to want to work anything out (SPS is the servicer). We've tried all sorts of rearranging the budget, dumping things including life insurance, etc. Unfortunately we don't qualify for the HAMP program because our mortgage isn't any of the MAEs and we have an FHA and more than 12 months arrears. There is an HAMP for FHA loans but since it's more than 12 months, we don't qualify and our loan holder isn't participating anyway.
    Sooo, we talked to the lawyer and he says, we can convert to a 7 to dump everything else-CCs, medical, etc. and then refile a 13 right away. We can't dismiss the 13 easily because we would have to voluntarily dismiss it and have to wait the 180 days. It's automatically taken out of my check so we really can't get it dismissed for non-payment, in which case would only be a 4 month waiting period to refile.
    Don't mention selling the house, letting it foreclose-we both have jobs and finally we are ready to get back on track. We have kids, school, etc to keep us here. I was hoping the mortgage company would work with us, but unfortunately they say they'll try and then ask for a "down payment" for a loan mod. If we had that money readily available, we would have given it to them.
    So, just wondering if anyone else has gone through this. Please no bashing. We know our credit is shot. I'm just looking for a little support.

  • #2
    Your attorney is smart. I have been researching this, but have not actually done it. Everything you convey from your attorney is true. If you want to "try" to save your home, you can do as your attorney says. However, there is absolutely no guarantee.

    Some things I had been noting... just some thoughts...
    • Do not voluntarily dismiss your Chapter 13. This will cause the Judge to issue a dismissal with prejudice, precluding you from filing again within 180 days of the Order.
    • File a Notice of Conversion to Chapter 7. You have a one-time absolute right to convert. This doesn't even require a hearing, just a Notice of Conversion filed with the Court (and probably served on the UST and/or Trustee).
    • Depending on your expenses, you may need the house payment in order to pass the means test (to qualify for a Chapter 7). You may need to list your intentions to reaffirm the home. This may be complicated because you're actually in arrears on the mortgage, but you can still try.
    • The mortgage company is likely to file for Relief From (the Automatic) Stay (RFS). They will almost certainly get this RFS granted.
    • Hopefully, the Chapter 7 goes well and the discharge is granted.
    • File the Chapter 13 immediately after you get that discharge. As in, have the papers ready to sign the day after the Chapter 7 discharge.
    • A new Stay is in place. (Hopefully, the lender who received the RFS in the Chapter 7, did not actually foreclose.)
    • Your attorney (or you) files a first-day motion to extend the stay as to the home lender (and others)
    • Hopefully your Stay is Extended.
    • Include the lender in your Chapter 13 Plan.
    • Know that you can't receive a discharge in the new Chapter 13.
    • Know that you need to complete the Chapter 13 in order to correc the arrears
    • This is effectively a Chapter 20, and some Districts are not so accommodating.
    • If this all fails and your Chapter 7 is dismissed... refile a new Chapter 13! You will still need to do first day motions and hopefully the Judge will grant the extension for the RFS on the home lender.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog

    I am not an attorney. Any advice provided is not legal advice.


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