Relief of Stay

[dew2015]

Hi I am in Georgia.

 

I am currently in chapter 13 for 2 years. My mortgage company has filed a motion for relief of stay. I want to walk away from my house but I would rather

sell than have it foreclosed. Do you think the mortgage company would give me a time frame to try and sell before foreclosure since it has went this far?

I have contacted them and they wont talk to me because of the bankruptcy. I do have an appt. with my attorney this week but I was just trying to get info

before that.

 

M&T Bank serviced by Bay View Loan Svcs.

 

Thanks

[Kuuner]

If they filed for relief, they intend to foreclose. They would get their hearing on the motion and more than likely (Unless you present compelling information to the contrary) would be granted relief if they can demonstrate that the property is not necessary for your reorganization. They would do that typically if you had no equity and if you weren't paying (Which apparently you aren't).

 

QUESTION: Why do you care if you sell it instead of foreclosure? You haven't paid and are already at the point of foreclosure (or they wouldn't be filing the MFR). The house will be considered "IIB" and the foreclosure would be part of the BK so it isn't hurting you one way or another. Is there equity in the property? If not, quit losing sleep over it. Are you currently living in it? If so, you'll have to work on the arrears for the second. You can usually get on a mini plan within the BK court to stop the MFR. You had to have made an agreement in your plan originally to pay them and have apparently defaulted on that agreement or they wouldn't be filing the motion.

[dew2015]

Yes I am living in the home. Yes there is equity of about 20K.

thanks

 

[Kuuner]

Yes I am living in the home. Yes there is equity of about 20K.

thanks

 

You are in BK. None of the equity will go to you, only to the trustee to pay your creditors. You say you have about $20K in equity? You haven't discussed any values or loan balances but suffice it to say, a good portion of that "equity" would be eaten up by the fees/costs associated with selling the home. You would also have to get court approval to sell it. That's a good tactic for a response to the motion for relief filed by the lender but their response is going to be that they have a professional appraisal that states there is no equity and/or that you have not paid on the loan and are in breach of your confirmed plan. Either one is enough to get relief granted. Unless you have a plan to attack both arguments, chances are that relief will be granted (Anything can happen and usually does though). On the lack of equity argument...your counter is, "No your honor, there is equity". Be prepared to have a CMA (Comparable Market Analysis) provided by your realtor to substantiate your argument. Be prepared to have a listing agreement ready to go. I've see the courts give debtors time to list and sell the property with a stipulation that if it doesn't sell within X number of days, the lender has automatic lift from stay and can proceed to foreclosure without further notice or hearing. On the counter to the argument that you haven't paid...start paying. The courts are liberal with the granting of second chances. Good luck.