If I file an emergency bankruptcy pro se because I don’t have all the required documents ready, I read the court will allow 14 days for me to get the rest of the paperwork submitted. And that I could also file for a 30 day extension too if I needed it. So does the automatic stay begin when I first file my petition, or after that 14 day deadline, or after I file an extension of time to submit everything? Also, what if I file bankruptcy earlier than I planned in order to have the foreclosure auction sales date canceled, but then I dismiss my case to give me more time to help qualify for a modification. How long would I then have to wait before I would be allowed to file for bankruptcy again?
The 30 days runs from the date you file your case, which is the petition date. You must file the motion to extend the automatic stay in time for all creditors to be given adequate notice and the hearing on the motion to extend the stay must be heard prior to the expiration of the automatic stay.
The bankruptcy code states that the automatic stay ends on the 31st stay as to property of the debtor. Some courts have held that since the automatic stay does not expire as to property of the estate all property is property of the estate until confirmation of the plan. However, others have held that the stay lifts period.
If you want to have a reals shot at a confirmed plan so that you will have a much longer time in which to work on the loan modification, you need to reconsider moving forward pro se. You should read this paragraph from a 2011 report from the United State Courts website:
Chapter 13 is typically considered the chapter of choice for those wage-earners seeking to catch up on missed car or house payments and avoid repossession of a vehicle or foreclosure of a home. Confirmation of the chapter 13 plan that provides for payment of such arrearages over many months is necessary to begin the process of making up for missed payments. Completion of a chapter 13 plan through discharge can take 36 to 60 months, and is very difficult to achieve even in attorney-represented cases. Approximately 55 percent of attorney-represented cases reach confirmation. The number of self-represented debtors that manage to get to confirmation of a chapter 13 plan is 0.4 percent – clearly demonstrating that it is nearly impossible for this population to succeed in chapter 13.
.4% means 4 out of 1,000 pro se debtors were able to get their plan confirmed, while 550 of attorney represented debtors were able to get their plan confirmed. That study does not consider the number of pro se debtors' that were able to get a confirmed plan, but ended up paying more to creditors than they would have had the retained an experienced bankruptcy attorney.
You really need to take the time to meet with an experienced bankruptcy attorney that handles chapter 7 and chapter 13 cases. Most bankruptcy attorneys will meet with you at no charge for the initial appointment. You can use the Avvo "Find a Lawyer" link at the top of this page to search for an attorney.
Answers and comments provided are for general discussion only. My comments are not to be considered legal advice and they do not create an attorney-client relationship.
If you have not filed bankruptcy in the past year, the automatic stay is effective from the time of filing. However, if you are doing this to stop the foreclosure and have no intention of providing the documents needed to do the bankruptcy that is probably considered a bad faith filing. Since you want a modification of your mortgage, I suggest you don't file pro se but hire a seasoned bankruptcy lawyer to file your petition and request mortgage mediation to obtain a modificaion.
Filing Bankruptcy is not a joke. You cannot use false and deceptive methods by filing and withdrawing a Bankruptcy petition to obtain more time in a foreclosure. The automatic stay goes into effect once the Emergency petition is filed. To properly answer your questions and address your concerns, the best way to handle this is with an in person consultation with an experienced FL bankruptcy attorney. Use AVVO's Find a Lawyer tool to select a qualified attorney. Good luck. THIS IS NOT LEGAL ADVICE! YOU NEED TO SPEAK TO AN ATTORNEY WHO IS LICENSED IN YOUR STATE FOR LEGAL ADVICE. This is merely suggestions for you to think about in discussing your situation with the local attorney.
If you found this Answer helpful, please mark it as "Best Answer" Please be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.
The real question you need to answer is: what is your goal? If you are attempting to modify your mortgage loan to save your home, filing a Chapter 13 Bankruptcy may help you achieve that result. The Southern District of Florida, which includes Vero Beach, has a Mortgage Modification Mediation (MMM) program where you can attempt to modify your mortgage within the Chapter 13.
If you haven’t filed a previous bankruptcy, the filing of a Chapter 13 Petition will cancel the foreclosure sale. If due to emergency time constraints you cannot file all of the required Schedules and Plan with the initial filing, you will have 15 days to file the balance of the documents. Any extension beyond the 15 days is wholly up to the Judge’s discretion based on your circumstances. If you are filing a Bankruptcy for the sole purpose of hindering a creditor, (i.e. – to cancel a foreclosure sale), as the other attorneys correctly point out, it will be deemed a “bad faith” bankruptcy filing by both the Court and your Creditor (approval of any mortgage modification is in the sole discretion of your Creditor).
If you file a Bankruptcy case and do not file the balance of your Schedules, your case will be “dismissed with prejudice as to the filing of any bankruptcy case in any federal bankruptcy court in the United States of America . . . for 180 days.” If you truly want to save your home, you should speak with a qualified bankruptcy attorney in your area.
To begin with, filing a Chapter 13 case pro se is generally not recommended. There are many pitfalls for the inexperienced filer and even more so with some of the concerns you have listed above. Please speak to a professional about using the bankruptcy process as a possible way to save your home. There are options out there and people who can guide you through the process. Many attorneys offer a free consultation and will take payments through the Chapter 13 plan so that you don't have to go it alone.
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