My husband filed chapter 13 and because our lawyer did not appear in court to object to the motion for relief of stay, the court

Asked almost 5 years ago - Saint Louis, MO

granted the motion and our home is headed to foreclosure. He was well aware before filing that we wanted to keep the house and was included in our repayment plan. The only way we could stop the foreclosure is by applying for a modification loan. Our lawyer has cost us alot of heartache, time and money. Is this malpractice on his part?

Attorney answers (3)

  1. Robert W. Kovacs Jr.


    Contributor Level 14

    Answered . There is not enough information here to know if your lawyer committed malpractice or not.
    One thing that does drive me crazy is when lawyers do not communicate well with their clients. It is not likely malpractice when a lawyer does not keep the client well informed but it is bad for the profession, the attorney, and the client.

    More directly getting to your question, the law regarding a Motion for Relief from Stay is clear, if you miss a payment on your mortgage after the filing of your case the Court WILL and must grant relief, it is simply not discretionary. Sometimes responding to a Motion for relief gets the motion in from of the judge sooner and thus relief is granted sooner. So waiting and doing nothing is the best move.

    Some general information about chapter 13. Chapter 13 bankruptcy, if filed prior to a foreclosure sale, will stop the sale, at least temporarily. In order to save your home permanently from foreclosure, you will need to make all your future mortgage payments on time AND cure the arrears (missed payments) over the course of the Bankruptcy Plan. You must prove to the Court that you have enough money to pay for your daily living expenses and your mortgage and the plan payments.

    Good luck.

    Robert Kovacs

  2. Mitchell Paul Goldstein

    Contributor Level 20

    Answered . Depending on how long ago relief was granted. You may be able to get a motion to rehear before the court. Motions for Relief from Stay can be stopped by catching up the payments by the hearing, entering into an agreement with the lender, proving the lender wrong, or amending the plan to include the missed payments. If none of that was possible, then losing the house might have be the only possible outcome.

  3. Mitchell Paul Goldstein

    Contributor Level 20

    Answered . One more thought, contact a local attorney. You may be able to file a Chapter 13 bankruptcy to save the house.

Related Topics

Chapter 13 bankruptcy

Chapter 13 bankruptcy is called a wage earner's plan because it lets people who earn an income repay their debt (all or some) over time and keep their property.

Legal malpractice and negligence

Legal malpractice is when an attorney harms a client through unreasonable errors, and harm would not have occurred "but for" the errors.

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