Went into Chapter-13 plan in 2009. In 2011, after reviewing creditor balances, I voluntarily had the plan dismissed to deal with creditors directly. All creditors were easy to work with. Only issue was with Bank of America mortgage. Arrears amount was large due to time lag from when BOA first started receiving payments in the plan, having been a few months behind when starting the plan, and BOA taking forever to acknowlege plan was dismissed and not accepting payments during that time. Re-filed a C-13 due to that. It has now been 5 months and BOA has not filed a claim on the new plan. C-13 trustee has now dispersed monies held for mortgage payments to other creditors, and attorney has been unable to get BOA to file a claim. What happens now? If an attorney can't get BOA to respond?It is beyond frustrating since when first starting the original Chapter-13 plan we were only a few months behind on mortgage payments. Now with the time lags from when BOA first started receiving original plan payments, period when original plan was dismissed and BOA taking way too long to acknowledge plan dismissal and be ready to accept payments again, it turned into many months of arrears. Now even more behind since they won't file on the new plan. There are so many horror stories on the Internet about the way BOA operates these days, I'm living in fear of what they might do. They seem to be operating almost outside the law from what many people report about how they are handling various mortgage issues.
Your old case is not really applicable to the current case with respect to proof of claims filed. However, if your mortgage lender does not file a proof of claim in your chapter 13 case, they will not receive any payments from the Trustee. This is obviously a problem for you because you owe the lender arrears based upon your questions. That does not negate the fact that you owe money to the lender which is secured by collateral. I presume that Bank of America has received notice, since you say your attorney has contacted them. In some situations you can actually file a proof of claim for the creditor, if they have not done so, but this is something you need to run by your attorney and find out what the standard procedure is in your jurisdiction.
I hope this helps.
I don't ordinarily second-guess the attorneys people hire to represent them, but what you're describing seems very unusual. Your district allows you to make "adequate protection" payments directly to a creditor so long as you indicate you're going to do so in your plan, and that is what I would normally recommend in order to save the trustee's commission on a large mortgage payment. Section 501(c) of the Bankruptcy Code also allows a debtor to file a proof of claim on behalf of a creditor who doesn't timely file a claim. "Timely" means within 90 days after the first date set for the 341 meeting, which itself is normally about a month after filing. Local rules often govern the deadline for filing for filing 501(c) claims, but I couldn't find a rule in a quick scan through your district's local rules. Since you are five months into the case, I'm going to guess that the trustee disbursed the funds he was holding for BOA because you missed the deadline.
You should ask your attorney what happened. If you don't get a satisfactory answer, a call to the U.S. Trustee's office would be in order. You can find contact information for them at www.tneb.uscourts.gov.
You may want to contact the chapter 13 trustee and ask if they have disbursed plan funds to unsecured creditors that were allocated to the mortgage company to cover your arrears. Your chapter 13 plan specifies a particular allocation scheme for the funds you pay to the trustee. Even though the trustee is making disbursements to some of your creditors, the trustee may simply be holding the funds for Bank of America until they file a proof of claim.
A phone call from your attorney to the secured creditor will often solve the proof of claim issue. A protective claim for Bank of America can also be filed by your attorney. Once that is filed, the chapter 13 trustee can begin disbursing funds to Bank of America.
This information should not be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.
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