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Can a loan servicer paid 2 year old property taxes that are in an comfirned BR chapter 13 plan and demand escrow after filing.

Redding, CA |

My in-laws and we share a lot with 2 homes. After my father in-law lost his job and 4k a month due to the turn down. Our loan servicer would not give us a fair loan mod, what they gave us was a fix rate at 6.75% from 7.25% and kept our 2nd at 12.3%. It was a $65.00 a month reduction. When my wife lost her job for the same reason as her father we missed 2 mortgage payments and the 2008 property taxes. July 2009 my in-laws filed bankruptcy to drop the 2nd mortgage and cover the 2008 property taxes. We paid all the taxes in 2009 and the first half of 2010. Even with my in-laws chapter 13 plan being confirmed and our 2008 property taxes being included and being paid and current, without a word our loan servicer paid the 2008 property taxes to Tehama County, also are 2010 house insurance after we already made the payment. Our deed confirms we are to pay the property taxes, house insurance, and POA fees. My wife and I filed BR chapter 13, Aug. 2010. Sept 2010 our loan servicer demanded escrow to be included with the mortgage payment. Are BR attorney told us just to pay are normal mortgage payment, no escrow and she would check with the court on how the back taxes got paid while in a confirmed repayment plan and how our loan servicer could change our mortgage payment while we were in BR. We ask the BR court to keep our mortgage out of our chapter 13 plan because we could not afford another $270.00 a month for the trustee just to mail our mortgage payment. The trustee rejected our plan for a year because we would not put our mortgage in our chapter13 plan. We were forced to include our mortgage in our plan. He stated in court doc’s we needed supervision because of the amount of escrow. Up to Sept 2010 we had 18 months with no latté’s and no missed mortgage payments. The trustee did not see that our loan servicer increased our mortgage payment by adding escrow after we filed bankruptcy and our attorney did not get a ruling on the escrow. Because of these 2 points, it has cost us more than $7000.00 plus $270.00 a month. Have tried numerous times to have our attorney do something with the 2 points above, we asked her to go back to court, all she does is nothing. Since we paid the property taxes for 2009 and first half of 2010, all the house insurance for 2009 and half of 2010 and with our 2008 property taxes being paid under a confirm chapter 13 plan. Should our loan servicer have been able to pay the2008 property taxes I do not thing so? For 2 reasons, it allow them to force escrow on us ( the taxes were 2 years old) and then they added $2000.00 to our escrow arrearages. We would gladly pay an attorney $270. a month for at least 36 months, to help us.

Attorney Answers 2

  1. First, you have to file a motion to disallow the lender's proof of claim. The loan documents generally give the lender the right to impound taxes and insurance on a monthly basis. However, you have the right to amortize monies advanced by the lender for delinquent property taxes and insurance through the plan over 5 years instead of paying them directly to the lender over a shorter period of time. Also, if the plan provides for the payment of delinquent property taxes and/or homeowner's insurance NOT paid by the lender, the lender cannot disregard the plan and advance monies for the same and then demand payment outside the plan. You have to file motion to compel the lender's compliance with the plan.

  2. Unfortunately it sounds like you need a new lawyer who will talk to you and knows ch 13 procedures in your district. Without knowing all of your circumstances it is hard to give specific advice but ch 13 is generally designed to have some flexibility so you can complete a successful plan. Perhaps, you need to convert to ch 7 because of the changes in your financial situation. See an experienced lawyer.

    This response is intended to give a general overview of the law and should not be treated as legal advice. There are too many factual issues and exceptions in the law to provide definitive conclusions about your circumstances.

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