My bank told me that because I have an active bankruptcy (ch13) that they cannot foreclose even if I stop making mortgage pmts?

Asked over 1 year ago - Worcester, MA

Is this true, that as long as I keep making the Chapter 13 payments so as to keep the bankruptcy active that the bank can't foreclose even if I stop making the regular mortgage payments???

Attorney answers (5)

  1. Derek R. Caldwell

    Pro

    Contributor Level 18

    6

    Lawyers agree

    Best Answer
    chosen by asker

    Answered . No, they can foreclose on your loan, but they first have to seek releif from the automatic stay if the property (the house in question) remained property of the bankruptcy estate, which is common in some districts and not common in others. Check with your attorney and the Order confirming your plan. If the property revested in the debtor (you) upon confirmation and you have defaulted on your post petition (after the date you filed your bankruptcy) then the bank/mortgage company can foreclose. It will also depend on whether your mortgage is being paid through your Ch13 plan. If so and you keep making your payments to the Trustee, then you would not be in default on your post petition payments and they cannot foreclose. If you have an attorney you really need to contact your attorney and talk to them about what is going on.

    DISCLAIMER: This message is intended as a general discussion of legal issues and not as a statement of fact, legal... more
  2. Michael Avanesian

    Pro

    Contributor Level 16

    5

    Lawyers agree

    1

    Answered . I'm just answering the actual question asked, not making any recommendation.

    Yes it is true, they cannot foreclose. However, they can seek relief from the stay and then foreclose. There are many pitfalls here and you should be very careful.

    The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may... more
  3. Alan D. Walton

    Pro

    Contributor Level 19

    5

    Lawyers agree

    1

    Answered . When you stop making the payments, the lender can foreclose. It might need permission of the bankruptcy court to do so, but whoever you talked to about this is wrong.

  4. Alex R. Hess

    Contributor Level 12

    1

    Lawyer agrees

    Answered . This information is Dead Wrong. If you stop making your regular mortgage payments the bank can definitely file a Motion for Relief from the Automatic Stay with the Bankruptcy Court. If the mortgage company shows that you have not paid your mortgage, the Court will allow their motion, and they can begin the foreclosure process. Your Chapter 13 Plan payments are curing arrears (previously outstanding mortgage payments). This has nothing to due with the new, ongoing regular mortgage payments. Think of the Chapter 13 Plan as a tool to payback late mortgage payments, but at the same time you must continue to make your mortgage payments.

    Now there is one thing to note. If you are in the middle of a loan modification process with the bank, sometimes they tell homeowners to stop paying their mortgage since the loan mod will take care of that. In general this is bad advice, and you should never stop paying your mortgage. However, this may be why the bank told you this.

  5. Orfelia Maria Mayor

    Contributor Level 8

    1

    Lawyer agrees

    Answered . TGhey can definitely foreclose. They just need to get permission of the court prior to doing so and if you are not paying, the court is probably granting that permission.

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

26,392 answers this week

2,802 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

26,392 answers this week

2,802 attorneys answering