I have a lawyer. He gave me some really bad advise about claiming I could reduce my default interest rate from 18% to 6% and spread the payments over 30 years. I now know that is impossible under a 2016 case that recently came out in 9th Circuit. Now the lawyer is basically hiding from me. I paid him $20k and lost all bk stay protection on 4 houses over 3 bk's and he told me to do transfers the day I file bk which apparently the court did not like. He will not return my calls. My house is scheduled for foreclosure on 3/6 and I can get the lender to refi 3/3, but cannot get a call back. What in the world can I do? My mentally impaired brother lives in that home. Can it be taken off the asset list?
If you are in an active chapter 11 you should not be facing a foreclosure in a few days. We would need a lot more information to figure out what your options are. If you are not happy with your current lawyer you can look for a second opinion. I would start with a search on this site or on the California state bar website. Perhaps a state bar certified specialist in bankruptcy would be suitable given the complex nature of what you are facing. You should expect to pay 1000+ for a review of a chapter 11. Good luck with this
Please consult or retain a lawyer for your particular issue.
You could possibly get the case dismissed by filing a motion for dismissal. If all of the creditors are mortgage holders and the stay has been lifted, the chapter 11 may serve no purpose. Getting it dismissed within days is between difficult and impossible. Perhaps the foreclosing creditor will put off the sale until after the case is dismissed, or approve the refinancing subject to the case being dismissed.
This answer is for discussion purposes only and will not be considered legal advice. Further, a court could potentially decide the question contrary to my answer.
In short, yes, you can refinance while in an active chapter 11 bankruptcy. However, refinancing a mortgage loan may be construed as an action outside the ordinary course which would require authorization by the court. However, the answer can change depending on the more specific facts of your matter.
One thing is clear: you need to hire new counsel to substitute in immediately so that you have a competent attorney handling your matter. An attorney who understands bankruptcy law, and specifically chapter 11 bankruptcy law. The fact that your current counsel “advise[d]” you to transfer assets on the day you filed for bankruptcy leads me to believe he is incompetent.
Unfortunately, I do not have sufficient facts to provide you a more thorough answer. Normally, when a chapter 11 is filed AFTER a foreclosure date is set, the lender continuously reschedules the foreclosure date throughout the bankruptcy case until either the loan is reinstated, or the case is no longer pending. This may be the case. Do you know if relief from stay was granted on the subject property (as opposed to other properties involved in other bks)? If the subject property was initially involved in a prior bk, do you know if there is an in rem judgment attached to the subject property? Also, if you transferred the subject property, did it activate an acceleration clause in the mortgage? Have you tried to obtain a loan modification with the lender? If you have already completed or near-completed a loan modification application, try to work with the lender to push it through to the loan modification review stage (so that your file is transferred into the loan modification department). Files in the loan modification department (and bankruptcy department) continuously have rescheduled foreclosure dates until the file is returned to the foreclosure department (i.e. if relief from stay is granted, the bankruptcy case is dismissed, or a loan modification application is rejected).
It sounds as if the lender received a relief from stay. It looks like the CH 11 is no longer benefiting you and you should consider dismissing it.
You may be able to sue the lender for worngful foreclosure and stop the immediately pending foreclosure. What were the circumstance under which the loan was obtained?.
I guess I would not feel lawyerly unless I wrote a disclaimer to this answer - after all, that is what we lawyers are trained to do. So here it is. Disclaimer: Trying to provide a complete answer to a brief question without meeting the questioner and without getting all the facts is much like internet dating. Despite what you have been told by the person you have met online (and they tend to always put everything in the best light for themselves), once you meet them face to face you realize how much has been left out. People tend to bend the facts and there is always the other side to the story. So, this answer is about as valuable as the price that was paid for it. It should not be considered legal advice. It is meant as a general overview of how the law could apply to a very broad set of facts that may not have any applicability to the actual circumstances of the person making the question. It is hoped to provide some understanding of the broad field of law that could come into play. No attorney-client relationship has been formed with the questioner and no attorney client relationship was ever anticipated by my response to this question. I would also like to remind you that I am only licensed in the State of California, and the answer provided is based upon my knowledge of California law.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline