(Florida) I filed Chapter 7 BK & it was discharged in June 09. In it I included a piece of property that I was way upside down on. My business slowed WAY down, wife had a baby and could not work, so I filed to protect my self and my fam., or so I thought. Now I receive "Motion for summary final judgment of foreclosure & taxation of attorney and costs" from Law Offices of David J Stern in South Florida.
The letter says "Plaintiff is entitled to recover it's principal, interest, late charges, costs, attorneys fees and other expenses"
I googled this firm and there is a ton of complaints on them, mostly cause they are shady. Can they do this and what should I do?? I was told that my liability in the matter was extinguished in the bankruptcy, and to throw throw the letter away. Is this true?
Criminal Defense Attorney
I cannot comment on the firm's reputation but will say that if you throw away and ignore the letter you may in fact be giving that firm a default win and entitle them to summary judgment.
I say "may" because there has to be valid service of process if a lawsuit has indeed been filed against you for foreclosure. Has that happened, to your knowledge? Call the clerk of the county in which the property is located and inquire as to any causes of action filed against you.
If a suit has been filed you need to respond in order to preserve your rights, even if it is to ask the court for additional time to respond. I would consult with a foreclosure defense attorney immediately. Often, these firms file suit and win simply because they are not challenged. Sounds like you have some valid defenses and challenging a suit can essentially stop it in its tracks.
So, don't ignore the letter. Instead, do the minimum of investigating whether or not a suit has been filed and if so, respond without delay by either getting an attorney to do so or by asking, in writing, for more time to respond, or by denying everything in the filed suit. Ultimately, if suit has been filed, you should get an attornet to review your documents and advise accordingly. Good luck!
Landlord / Tenant Lawyer
You should have a bankruptcy attorney review the Motion to determine if the David Stern's office has violated the bankruptcy Discharge. You may be able to bring an action in the bankruptcy court. Some attorneys will take the case on a contingency basis which means you pay only if there is a recovery. You can e-mail me dchen@ChenLaw.net
You usually have two options in a Chapter 7 Bankruptcy when it comes to your house - A) Surrender the house and get the mortgage discharged or B) Reaffirm the debt to keep the house.
In Chapter 7 bankruptcy, you do NOT get to discharge the mortgage AND keep the house. That's two bites to the apple. At best you get a delay in the foreclosure by several months so you can put your life back together and get a fresh start, and at the same time discharge your debts.
The purpose of a Chapter 7 bankruptcy is to discharge all your debts in exchange for liquidation (giving up) some or all of those assets that are not exempt. Even though your home may be a homestead property, it is not exempt from the mortgage because the mortgage was for the purchase of the house.
Please do not get the false impression that a Chapter 7 bankruptcy was supposed to save your house. It only delayed the inevitable, but at the same time discharged you of your debt obligations. You are lucky. Countless people lost their homes to foreclosure but did not do a bankruptcy, and there is a deficiency judgment hanging over them for the next 10 to 20 years. Some people may get garnished on those deficiency judgments.
In a Chapter 13 payment plan bankruptcy, you would have been able to save your house but you would still be paying your mortgage, and you would have to have steady income to do it successfully.