I read somewhere that if the automatic stay release date is longer than one year, the bank will have to start the process again from the beginning. Right after bk 13 was discharged, I received a letter from the bank saying I have 30 days to pay the delinquent amount of $73,000. This letter confused me. I need to know if the bank needs to file a formal notice of default again. This will give me an additional 90 days to figure out what to do. I had a 10 year fixed rate that adjusted in 5. The rate adjusted to current rates making the payment for the next five years totally affordable. I have been making payments since I filed Bankruptcy in 2010. Does that mean anything?? Thank you in advance for taking the time to read this.
Estate Planning Attorney
I would agree with my colleague above. In addition, if the only operative Notice of Default on your property was filed 3 years ago, Yes, they would need to re-file a new one, giving you, as you said, another 90+ days or so to figure out your options.
4 lawyers agree
Your facts are a bit confusing. If you had mortgage arrears when you filed your bankruptcy case, then presumably you included those arrears in your monthly plan payments so that by the time you received your discharge, you should have brought your loan current and the discharge should reinstate your loan. If for some reason you did not seek to cure your arrearages through your Plan, then the mortgage lender would have grounds to get permission from the bankruptcy court (via a Motion for Relief From the Automatic Stay) to continue with (or commence) the foreclosure sale.
I'm not sure of the answer to your question though, because it is a non-bankruptcy question and is exclusively based on state law as to whether the mortgage lender needs to start over again with a new Notice of Default. The requirements for foreclosures has changed quite a bit recently in California, so I will leave this to others to clarify.
Mark Markus has been practicing exclusively bankruptcy law in California since 1991. He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization, AV-Rated by martindale.com, and A+ rated by the Better Business Bureau. His webpage is www.bklaw.com
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.
5 lawyers agree
I agree with my colleagues.
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Chapter 7 Bankruptcy Attorney
I, too, wonder why you are in default for $73,000 when you contend that you have been making your post-petition mtg payments and plan payments. Were you in arrears on the mortgage when your Ch 13 Plan was confirmed? Nevertheless, if your mortgage lender posted and recorded a Notice of Sale that had an original trustee's sale date that is now more than 12 months old, they do not need to re-start the foreclosure from scratch. They merely need to "re-notice" the sale by posting and recording a new Notice of Sale (NOS) with a new sale date. This only gets you an additional 20 days or so. They cannot set the new sale date sooner than 20 days from the date they post your property with a new NOS. The exception is if you cured the default and paid the arrears in full since they recorded the original Notice of Default (NOD). Then, the lender would have to start over with a new NOD. This gets you 90 days, plus the 20 days after the NOS is posted. I suggest you check with your BK attorney to confirm if the arrears were paid in full through the Plan.