What happens if the home is treated as returned on the payment plan and the lender doesn't file a claim? Can they proceed with foreclosure without the need of proper proof of claim after the debt is discharged? If that's the case how can I sue them to produce the note before that happens!
Texas Non judicial foreclosure state.
Yes, they can foreclose once the bankruptcy case is over if you are not current with the payments and in default under the Note.
The filing of the claim only gives them the right to receive payments through the plan on any arrearages (if you're so providing) or on an unsecured portion (if you're doing a Lien Strip). Otherwise, they don't need to. It has nothing to do with their right to foreclose, during or after your bankruptcy case. (During would require bankruptcy court approval).
If you are disputing that they even have a valid lien against your property, you can probably file some sort of action to determine that in the bankruptcy court (or in state court) and then subpoena documents as part of the litigation. You might also be able to just demand the document with a simple letter pursuant to RESPA, but I will leave the more litigation-oriented attorneys on here to respond to those aspects more fully.
Mark J. Markus, Attorney at Law
Handling exclusively bankruptcy law cases in California since 1991.
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Legal disclaimer: Mark J. Markus practices law in California only. The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Answering this question does not in any way constitute legal representation.
Chapter 7 Bankruptcy Attorney
The Trustee or the Attorney has to object to the proof of claim. The Note is required to substantiate the Proof of Claim and should have been attached to it.
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship.
I agree with Mr. Markus. If they do not file a claim, they don't get paid in this case. If the debt is later discharged, the lender cannot come after you later. The lien is still valid and the property is still subject to foreclosure. During the case, that requires relief from the stay.
Mr. Goldstein is a Virginia-licensed attorney only. The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Answering this question does not in any way constitute legal representation. Contacting Mitchell Goldstein or the Goldstein Law Group does not constitute legal representation, nor is any information you provide protected by attorney-client privilege until otherwise advised.
If your Chapter 13 plan provided for surrender of the property, then the lender need not have done anything to preserve any rights in the Chapter 13 case. The discharge ends any personal liability you have on the debt.
As far as 'produce the note' type arguments, you could commence that in bankruptcy court, if the case is still open, or you can start an action in state district court. This not easy litigation and you need someone with a great deal of experience doing this work, or you will wind up losing and making bad law for other homeowners along the way.
I am licensed only in Texas. Offering information of a general nature in response to a question is not intended to be legal advice in your state.