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How long can a pending foreclosure case remain open in Florida after a Motion to Dismiss Foreclosure & Suggestion of BK Filed?

West Palm Beach, FL |

I filed Chapter 13 Bankruptcy for my unsecured debts, and I did not include my mortgage that
is behind. My mortgage is in pending litigation (Lis Pendens). I filed a motion to dismiss forclosure based on great evidence I obtained. The case is still open and pending since Sept 17th 2012 because the Court and the Mortgage plaintiff both received a suggestion of Bankruptcy notice. My first BK payment is due on Nov 18th but it does not include my mortgage which the court and plaintiff may assume it does. I was hoping for a hearing on my motion but it seems the Plaintiff has stopped collection efforts so far. How long can a pending case stay open? Will the court and Plaintiff at some point realize my mortgage is not in the Bk
payment plan or must contact them to move forward on a hearing?

Attorney Answers 5

Posted

Both lawyers are right, especially the statement about asking your BK attorney these questions. You might also instruct your BK attorney to advise you immediately when he/she gets a "motion to lift the bankruptcy 'stay' " from your bank. The case itself is "stayed" or stopped indefinitely until the Federal BK Court signs an order to lift the stay. The case can stay open for as long as the Court will have it stay open, and/or unless the stay is lifted and there is no activity on the matter.

Sounds like you're on the right track with the Motion to Dismiss, but you should MOST CLEARLY have counsel (licensed experienced in foreclosure) review that Motion to Dismiss now to ensure it's done to the T's so to speak.

I would certainly like to see that motion to dismiss!

Good luck--sounds like you're making headway.

NOT LEGAL ADVICE--FOR EDUCATIONAL PURPOSES ONLY. We don't know the facts and this is not legal advice. Seek the advice of licensed property law attorneys immediately so they can secure your rights. Hiring an attorney is a serious and important decision. Please ensure that you take the time necessary to evaluate and interview more than one attorney to determine whom to hire.

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Posted

The bankruptcy stay keeps the foreclosure case from proceeding until the creditor obtains the Court's permission to move forward with the Foreclosure. If your Chapter 13 plan does not pay the mortgage holder I anticipate that it will not be long before the bank files a motion asking the Court for permission to finish foreclosing on the property.

If you do not wish for this to happen you should speak to a local bankruptcy attorney who can give you more specific advise about your situation.

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Posted

Get to an attorney. This is not something you can do yourself and is indeed very, very complicated.

R. Jason de Groot, Esq., 386-337-8239

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1 comment

Keith Adam Halpern

Keith Adam Halpern

Posted

Yes, get back with your bankruptcy attorney, and then get a foreclosure litigator to review that motion to dismiss!

Posted

The Plan that you submitted to the Court will indicate whether or not the $ you are paying to the Trustee includes money for your mortgage. In this District, if you were trying to keep the home you would have to pay both the regular mortgage payment and money toward the arrears. If the Plan did not specify how much you were going to pay for the home mortgage, then the Trustee and the mortgage holder already know that you are not seeking to pay the mortgage in your Chapter 13.

That presumes that you listed the mortgage holder in your schedules. If you did, the Clerk sends them a copy of the Plan. If you didn't, then you need to amend your schedule D right away to include them. In Bankruptcy, you must list all your creditors, even the ones you are not behind on and want to keep, like a car payment. You would want to discharge the mortgage obligation once you completed your Chapter 13 payments, and if they are not listed, the debt will survive the bankruptcy.

I hope you found this response to be of assistance. This response shall not be considered the rendering of legal advise but instead a general response to a general question. While Avvo is a wonderful resource, nothing can be a substitute for an in-depth consultation with an attorney in the jurisdiction in which the law is to be applied. This response shall not be deemed to create an attorney-client relationship, nor shall it create an obligation on the part of the attorney to respond to further inquiry from the questioner.

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Posted

It it seems redundant, but you really need a lawyer. Usually people that do BK will handle FC as well so you'll be able to use the same one and in most cases we are very reasonable with fees because the cases are intermingled. You may have great information and very accurate with what you are doing but you now are dealing with procedural issues that come up in both courts and those alone are enough reason to hire someone. The chances of getting a 13 to work are low unless you have a lawyer that has experience with them and that person may even be able to allow you to use more of the benefits of CH 13. There are some very good uses for it.

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