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GA state bankruptcy laws, chapter 13, dispute of discharge of debt by creditor

Asked over 3 years ago - Covington, GA

I loaned my brother and his wife money for a house. We did a contract and I am the 2 mortgage holder, I filed the paperwork with the State. My brother and his wife filed Bankruptcy, they continued to pay me the money each month. I did not file a claim, because he continue to pay me. They received their discharge from the court and stop paying me and when I asked for my money they tell me that they do not owe me because i did not secure my claim. When they filed for the chapter 13 they were behind 2 months but because they continued to pay me I was willing to let the 2 months go, but now they are not paying anything on the loan and I want to know if I gave up my rights, because I failed to file a claim. HELP I NEED MY MONEY BAD!!!

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Attorney answers (3)

Dainen N Penta

Reputation Level 10

Answered over 3 years ago. Bankruptcy Attorney in Seattle, WA.

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Wow, what an unpleasant situation! Your description tends to indicate that you are not a secured creditor - that is, although you prepared a "contract" and "filed with the State," that the paperwork you prepared is deficient, or you did not follow the proper procedure to have a security interest - that is, an interest in your brother's home. Generally, you have to follow the proper procedure in order to be a secured creditor, and to have superior rights to payment and rights to try and collect against the property.

You indicated that your brother filed a Chapter 13. In order to receive payment from the "trustee" - the person who received payments from your brother and paid his creditors from those funds - you MUST file a claim with the Bankruptcy Court. Did your brother list you on his bankruptcy schedules as a creditor, or someone he owes money to? If he did not, then you might have some recourse if your brother filed a Chapter 13, because debts that are not listed are also not discharged in a Chapter 13. In most jurisdictions, it is also not OK to pay debts separately.

Certainly, it is possible that your brother is wrong, and if you followed Georgia and local procedure on how to secure a home loan, then you should be concerned that your rights were not protected in the Chapter 13 case. In either event, I recommend that you contact an experienced attorney in your area who can help you figure out what your rights are under Georgia law and under the bankruptcy laws.

Hopefully your brother will pay you back, because it's the right thing to do, and because you are family.

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Lesley Abigail Hoenig

Reputation Level 14

Answered over 3 years ago. Bankruptcy Attorney in Mount Pleasant, MI.

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If you properly filed your mortgage against the land before the bankruptcy, your mortgage should still be valid. I have no way of giving you a definitive answer, but I'd recommend you consult with an attorney experienced with creditor side foreclosure.

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Brett D Weiss

Reputation Level 14

Answered over 3 years ago. Chapter 13 Bankruptcy Attorney in Greenbelt, MD.

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If you have a secured claim, such as a second mortgage, the lien on their house was not discharged in the bankruptcy, and you can foreclose on it if the payments are not brought/kept current. While a bankruptcy discharge wipes out the personal obligation for a secured claim, meaning that you could not go after them for any deficiency or garnish their wages or bank accounts, you still may proceed against the property.

I strongly recommend speaking with a local collection attorney. He or she can let you know what you can and can't do, and will make sure that you don't run afoul of the bankruptcy discharge.

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