Real property & mortgages Archives - Northern California Bankruptcy Lawyer

Mortgage Payments During California Shelter-in-Place

Is my house at risk if I have no income due to coronavirus?

With economic activity at a dead halt due to COVID-19, California homeowners worry about next month’s mortgage payment. And the month after that, for as far as the pandemic can see.

While it’s early days, and I fully expect broad governmental measures to protect homeownership, here’s what we know at present.

Federal protections from foreclosure

HUD has imposed a 60 day suspension of foreclosures and evictions on loans from the FHA. Loans backed by Fannie Mae and Freddie Mac will also get a 60 day reprieve, with promises of further extensions if the circumstances require.

So, how do you know if Fannie or Freddie owns or guarantees your home loan. There’s a tool, or rather two tools, for that.

Look up your loan.

Fannie:

Freddie

Thus, California homeowners with existing foreclosure or eviction actions are protected for at least two months. I fully expect that period will be extended.

Dealing with missed payments

What if you were current when the shut-down was imposed but you can’t make next month’s payment?

What’s a loan servicer?

If your loan is owned or guaranteed by Fannie or Freddie, servicers have been directed to offer flexible payments or a suspension of all payments for up to a year.

I anticipate federal regulations that will require servicers to offer loan modifications or payment extensions. We can hope that the system has more teeth than the HAMP modifications following the Great Recession.

Not Fannie or Freddie?

It’s less clear, at this point, how lenders with loans that aren’t federally insured will proceed.

Early data suggests that lenders are prepared to be flexible. We’ll have to wait to see if the federal government requires it some time down the road.

Check on line for the latest from your lender/servicer.

California 90 day grace period

Governor Newsom has reached agreement with 4 of the top five federally chartered banks who own or service home loans. (Bank of America is the hold out.)

Two hundred state chartered banks and credit unions have joined the agreement

The banks agreed to waive mortgage payments for 3 month regardless of income level. No fees or penalties will accrue, and there will be no negative credit reporting.

Borrowers do have to document that their inability to make payments was traceable to the coronavirus. Details on what kind of documentation is required varies among lenders.

For Californians, the most reassuring news is that California foreclosures take a long time. While California foreclosures don’t involve the courts, the notice and cure periods mandate 4-6 months between the start of foreclosure and an actual foreclosure sale.

And the people who conduct foreclosure sales are in lock-down, too.

Write and call

For every debt that you can’t pay because of the shelter in place order, call the creditor to tell them how you are affected. That’s what the creditors all say.

I say, follow up that call with a short letter repeating the facts of your situation. Doesn’t have to be long or fancy. Just get paper in the creditor’s hands.

Keep a copy for yourself. Don’t count on the creditor to be able to file your letter and find it later.

Then you’ve made a record of your call and your situation.

Looking forward

I fully expect that we will see muscular, nationwide programs to keep people in their homes. As a society, and an economy, no one benefits if masses of families lose their homes.

It will take time to work out just what those programs look like and how well they work.

But work it out we will.

Updated 3/30/2020

When you can’t pay your bills during pandemic

Home Mortgage Forbearance: Will It Save Your Home From Pandemic?

By Cathy Moran

Mortgage forbearance for homeowners, shout the headlines. No need to make a house payment.

Borrowers who can’t make this month’s mortgage payment were thrown a lifeline of sorts in the coronavirus rescue package.

Only it’s probably not the help you think it is.

And the lifeline may be far more fragile than you will need in the long run.

So, let’s take a tour of the CARES Act as it applies to home loans and see what the neighborhood looks like.

Not all home mortgages are covered

Only home loans that are made, owned or backed by an arm of the federal government are covered. That’s approximately two-thirds of all home loans.

Fannie Mae and Freddie Mac handle most of the federal loans. See whether your loan is one of the covered federally-backed loans with these look up tools.

Fannie Mae

Freddie Mac

If your loan is not federally backed, you need to look to your loan servicer or to local and state protections if you can’t make your mortgage payments.

Hardship must be virus-related

To invoke the protections of the rescue package, your inability to make the mortgage payment has to be traceable to the virus or the fight against the virus.

Apparently, all that is required is a statement that your financial hardship is caused by the National Emergency.

No magic words, no sworn statements, no documentary proof. Just blame the virus.

Claiming the protection

Early discussions said “call your lender”. Well, we know how practical that is when millions are trying to get through on the phone.

Calling works, if you can connect.

Better, check out your servicer’s website for a Coronavirus hardship page. Many allow you to sign up for help by checking a box, or sending an email through their site.

Always, when claiming a benefit, follow up in writing with the statement of hardship and your contact info and loan number.

We have to expect screwups and delays. As a society, we’ve never experienced a crisis this sudden, dire, and widespread. So back up your claim in writing, and keep a copy.

What is forbearance

The CARES Act offers forbearance to borrowers with federally backed loans. Just what is forbearance.

Forbearance is a suspension of payments

In essence, the lender puts on hold its right to invoke legal consequences for failing to pay.

Contrast forbearance with deferral: deferral adds missed payments to end of loan

Forbearance doesn’t change the amount due monthly, or change the life of the loan.

Importantly, at the end of the period of suspension, all of the suspended payments are then fully due.

Ouch!

So, take the six month forbearance provided in the law, and in month seven, those six months of payments are due. (The law allows for a request to extend the period of forbearance for another six months. A request for a further forbearance MUST be made during the first period of forbearance.

What comes after forbearance

Here’s where the short-term nature of the remedy comes up short. This bill just pushes the nonpayment problem down the pike.

What the feds are saying is that at the end of the forbearance period, each borrower will have to make a deal with their servicer to get current.

UPDATE: Feds assure borrowers that their homes aren’t at risk of loss due to forbearance. The alternatives are still to be worked out individually.

At the current time, there are no regulations or even templates about what that “deal” might look like.

But if you were involved in mortgage modifications following the Great Recession, you’ve looked into the maw of chaos.

Given the much broader path of these troubles, the mess to follow will make 2008 look orderly.

What lenders are offering

I’ve seen a number of offers stuffed in mortgage statements in the last month offering forbearance to borrowers, apparently without asking.

Typically, the lender offers to suspend payments for three months, with all missed payments due in month 4. I’m fearful that borrowers will snap at that offer without understanding it, or without any real expectation of how they’ll make four months’ payment at the end of the forbearance.

Neither do I know whether these offers are going to homeowners with federally backed loans or whether they are being offered more broadly.

I suspect the offers are made in good faith and on the spur of the moment. However, I’m fearful about the lender’s plans (or lack of plans) for what happens after forbearance.

Details to follow

Obviously, the CARES Act was cobbled together quickly in the face of emergency. It surely won’t be the last word from Congress on getting homeowners through this crisis.

Watch for the next round of remedies, and raise your voice for a fair, enforceable, efficient process to preserve homeownership in a time of pandemic.

Don’t Fall For Your Mortgage Lender’s Insurance

By Cathy Moran

If the mortgage company provides your property insurance, you are not in good hands.

No matter how much time it saves you.

Your lender is not a good neighbor when it comes to insurance.

When your insurance lapses

Somehow my client let her homeowners insurance lapse. She wasn’t worried about it, she told me, because the mortgage lender had gotten insurance on her home.

She was content, she said, to let the lender take care of that complication in her life.

Only the complication wasn’t being “taken care of” because the lender’s force-placed insurance didn’t protect my client or her interest in her home.

Lender protects only themselves

Normally, you pick out an insurance carrier to insure your home and to protect yourself against the risks that property owners have.

Your mortgage requires that you insure the property and name the lender as an additional insured. That way, if the house, which is part of the collateral for the loan, burns down, the lender gets all or part of the insurance proceeds to make up for the loss of the structure.

Your mortgage also provides that if you don’t get insurance to protect the lender, they can get it for you, and you’ll have to pay for it.

But here’s the catch: force placed insurance protects only the lender up to the amount of its loan.

Your equity in the property is not covered, nor are you insured against personal injury claims related to the property.

Not to mention the fact that force-placed insurance is very expensive.

So, my client who thought she’d off-loaded the job of providing insurance, had no protection from the lender’s insurance. All she had was the bill for three times what she was paying before, for half the coverage.

Homeowners exposed to injury liability

Homeowner’s insurance usually protects far more than the house on the lot. It protects you from claims by visitors to your property for injuries they suffer on your property.

And other, quite unexpected stuff.

Early in my legal career, I found that my client’s homeowner’s policy covered the damages his son caused spinning wheelies in his dad’s car on the high school football field in the dark of night.

Our legal system assigns liability to property owners for injuries that occur on the property, often without regard to fault,. For that reason, I advise that people walking away from homes or investment property continue to pay for liability insurance even if they aren’t paying the mortgage and are indifferent if the property burns down.

Take insurance matters into your own hands and be genuinely protected.

Little known step that’s critical before listing house for sale

Your house needs an annual check up

How California homesteads work

Your home provides a poor retirement

Image courtesy of Artotem

5 Essential Tips To Understand Your Mortgage Loan

By Cathy Moran

$mortgage debt$

Figuring out what you owe on your home loan can be harder than a calculus exam.

For most people, their mortgage is their biggest debt. And their home is their most important asset.

Yet, the people accounting for your payments are increasingly incapable of the very basics of their job. And that makes your job, as borrower and homeowner, more challenging.

Not your parents’ home loan

Things have changed since the local bank made you a loan to buy a house and collected the payments you made on that loan.

Now, home loans get sold to someone else the moment the deal closes. The right to collect the loan payments is bought and sold separately from the right to the payment amount.

And increasingly, the servicers make mistakes as they cut corners to make a buck.

What do you need to know to assess whether your loan servicer has got the numbers right?

1. Principal balance isn’t what you owe

Ask someone what they owe on their mortgage and they’ll recite the principal balance. The principal balance is the remaining part of the amount originally borrowed that is still unpaid.

Yet you may well owe additional sums: delinquent payments that are mostly interest; late fees; escrow advances; or the junk fees that most delinquent loans are larded with.

Finding the principal balance gets trickier yet if the loan has been modified to include a non-interest bearing amount or some other, non standard adjustment.

So the amount necessary to pay off the loan upon sale, or refinance, may well include charges from the past, plus fees for calculating what you need to pay to satisfy the debt.

2. Payments are credited to oldest month unpaid

If you fall behind on a home loan, then resume making payments, your payment is credited to the oldest month still unpaid.

So the payment you make in June may be credited to February if you haven’t paid the payment that came due then.

And the servicer will report that you remain due for June, even though you sent a check in June. It’s all in the rules about how payments are credited under the terms of the note.

3. Payments may not be credited

Loan servicers seem to have a separate “pocket” labeled “Suspense” into which they sometimes dump your payment. They’ve got your money, they just haven’t credited it to the amount you owe.

The only reason for putting funds in suspense that seems justified is when the payment is too little to make a full payment on the loan. Servicers don’t have to credit partial payments.

So, they put the money in suspense until they receive enough money to make the regular payment.

For reasons no servicer has ever adequately explained, I’ve seen suspense accounts in the tens or even a hundred thousand dollars.

So, a mortgage statement that doesn’t address any funds held in suspense doesn’t tell the whole story.

4. Escrow accounts contain something extra

If your property taxes and hazard insurance are paid by the lender, you have an escrow account.

Under federal law, the lender is allowed to collect more than the sum of the year’s taxes and insurance as protection against the borrower’s non payment.

The extra money, the “cushion”, can be no more than 1/6 th of the annual expenditures. It remains your money, it’s just held by the servicer should it have to pay when you haven’t paid.

You should get an annual escrow analysis that shows income and expenses in the past year’s escrow account and a projection of the coming year’s expenses.

That projection will determine what you pay in escrow payments going forward.

5. Statement doesn’t come from owner of note

Ever since loans were bundled up and sold on Wall Street to investment trusts, the work of collecting your payments has been handed off to loan “servicers”.

The owner of the note pays a company to deposit your payments, keep track of fees and expenses, and take action if you don’t pay.

The servicer seldom owns the note, they just own the right to collect the money for the holder of the note.

And servicers change. Sometimes as often as we change the oil in our car.

When there’s a loan handoff from one servicer to a new servicer, details about anything unusual in the loan account sometimes get lost.

Get behind the monthly statement

The problem of finding out what the servicer thinks you owe became such a problem that regulations written pursuant to the Dodd-Frank act gave borrowers some clout.

Now, a borrower with a home loan can make a Request For Information about their loan and expect answers within a shorter period than under the old law.

If the servicing of the loan has changed hands, the borrower has a window in which to request information from the old servicer, to compare with what the new servicer thinks.

Find the “how-to” for a Request for Information.

Your mortgage and your credit report after Chapter 13

Bad mortgage accounting violates your Chapter 13 discharge

Get tax credit for curing mortgage defaults in Chapter 13

How Chapter 13 works

Your Right To Credit Reporting After Bankruptcy

By Cathy Moran

You’ve finished your Chapter 13 and emerged from bankruptcy with your home loan current.

But your credit report is a blank page as to your mortgage.

The mortgage servicer isn’t reporting your payments to the credit reporting agencies [CRA’s].

Nothing. Nada. Crickets.

So, even though you’re making regular payments, you’re not visibly rebuilding your credit.

Ask the servicer and they’ll tell you that they can’t report your payments “because of your bankruptcy discharge“.

But they are wrong: a little-discussed provision of Chapter 13 says that long-term mortgage debt is not discharged in 13.

Yup. The mortgage loan is not discharged as a personal obligation.

And therefore, there is no bar to the servicer reporting your payments, and every danger should they not report.

Servicer’s obligation to report

Put simply, if a creditor reported to credit reporting agencies before the bankruptcy was filed, then there is an obligation to report after the bankruptcy. The “furnisher”, the creditor who supplies information to the credit reporting agency, has an obligation to make the information on file fully accurate.

In contrast to an unsecured debt like a credit card, which should be reported as having a zero balance after the discharge, the mortgage loan after Chapter 13 has a balance.

Presumably, it is also current. Both facts which should appear on your credit report.

Mortgages excluded from Chapter 13 discharge

I’m certain you will have to cite to bankruptcy law when you challenge the improper reporting on a mortgage loan after Chapter 13.

Here’s the part of the Bankruptcy Code that excludes long term debt like your mortgage.

Section 1328 says,

(a)… the court shall grant the debtor a discharge of all debts provided for by the plan …, except any debt—

(1)provided for under section 1322(b)(5);

Section 1322(b), that §1328 refers to, says

(b)Subject to subsections (a) and (c) of this section, the plan may—

(5) … provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due;

Get mortgage payments reported

If you find that your post discharge payments on your home loan aren’t being reported, challenge the accuracy of what is on your report about that loan with the credit reporting agency.

It is the CRA’s responsibility to see that information in your credit file is accurate. The CRA is supposed to ask the furnisher to reinvestigate the challenged tradeline.

The Consumer Financial Protection Bureau has a how-to, with a template letter, on how to dispute inaccurate information on your credit report.

Get the good information reported.

How to find and fix credit reporting errors

Your post bankruptcy to-do list

7 Keys To Keeping Your House: Chapter 13 After You File

By Cathy Moran

Filing Chapter 13 bankruptcy stops the foreclosure. You’ve protected your home, for the moment.

Bankruptcy gets you a sheltered legal environment to address the problems with your mortgage.

You heave a sigh of relief.

But the fight to keep your house isn’t over, just because there’s a stay. You’ve just gotten through the first round.

You need to stay on your toes for the balance of the match to emerge with your house safe at the end of your bankruptcy.

Here’s what you need to know.

Mortgage lenders get special consideration

In the bankruptcy context, the mortgage lender gets privileged treatment.

Anglo Saxon law, from which US law is drawn, has long given particular protection to the claims of property owners. After all, it was those who owned property who wrote the laws.

The mortgage lender gets that special treatment because the lender’s lien is a property interest in your home.

That lien entitles the lender to regular payments; if payments aren’t made, the lender can ask for relief from stay to foreclose.

The exception is if the value of the collateral is less than the total of the liens ahead of the lien in question. Think: underwater second mortgage.

Follow these 7 keys for keeping your house AND getting a discharge in Chapter 13.

1. Regular mortgage payments required

Most Chapter 13 plans provide that the trustee pays the arrears on your mortgage, while you make the payments that come due after filing.

Make the payments- that means property taxes and insurance as well.

Too often, homeowners get fixated on paying the arrearages on their mortgage that they overlook, or struggle, with the ongoing payments.

Court are intolerant of borrowers who want the protection of the bankruptcy stay, but don’t take seriously their obligation to pay the monthly payments that come due after filing.

That intolerance spills over into dismissal of Chapter 13 cases without a discharge when debtors fail to make current payments.

2. Look for other liens

Chapter 13 isn’t limited to fixing problems with mortgage liens. Your plan can either avoid altogether or reduce the amount of tax or judgment liens,

Make sure that you check the public record to see if any avoidable liens have attached, unnoticed, to your home.

If you find liens, your plan can cut them down to size.

3. Pursue modification

Your best bet may be to agree with the lender on a modification of your mortgage. Nothing in Chapter 13 stops the parties from considering modification.

Northern California bankruptcy judges have decreed that negotiations for a modification do not violate the automatic stay

Frequently, the modified mortgage either folds the arrears into the loan balance, to be paid over the life of the loan. Or, modification designates a portion of the amount owed as not bearing interest, but payable at loan-end or sale.

A modification that cures the arrears may eliminate the mortgage arrears portion of a Chapter 13 monthly payment, thereby increasing the chances of success.

4. Review the lender’s claim

In order to be paid in a Chapter 13, a creditor must file a proof of claim. For mortgages secured by the debtor’s principal residence, a detailed attachment is required.

The mortgage attachment must account for payments and charges to the loan from the date of the first, uncured default.

The POC also contains an analysis of any escrowed taxes and insurance, and the adequacy of the monthly payment to pay those expenses.

Dig into these numbers and see if they match your payment records and whether they are otherwise complete.

There’s lots of data there, some of it correct and some woefully wrong.

5. Keep records of your payments

Too many mortgage servicers fail the fundamental task of accepting your payments and crediting them properly.

The method of accounting changes with bankruptcy: payments made after filing are supposed to be credited to a separate accounting for your loan, while the pre bankruptcy record stands alone

Servicers don’t always do that. Payments sometimes sit for months on someone’s desk, undeposited.

I tell clients to pay with paper checks on their accounts and send the payment by a method that gets you a receipt upon delivery to the servicer.

It’s a hassle, I know, but you end up with a record from your bank that the check was cashed, and you have proof that it was delivered. The added expense is nothing to the cost of your attorney having to track down the facts showing you paid.

6. Read payment change notices

If your monthly mortgage payment changes after you file bankruptcy, the servicer must send you a Notice Of Payment Change.

The change may be driven by an interest rate change or a change in the cost of escrowed taxes or insurance.

Even though it comes on a court form, and looks dense, you’ve got to read it and adjust your post filing payments on your mortgage accordingly.

If you’re uncertain, ask your lawyer.

7. Exploit case-end rules

When you’ve made your last payment to the trustee, bankruptcy rules require a notice to the mortgage servicer about the state of your loan balance.

If the lender claims that either the pre-bankruptcy claim hasn’t been paid in full, OR, that there are unpaid amounts arising after you filed, they must file a reply.

This call-and-response procedure flushes out any difficulties that show in the lender’s books, and provides a mechanism and a judge to sort things out.

The goal is to exit bankruptcy knowing exactly where you stand on the home loan.

Make sure this happens in your case.

If you change your mind

Things change over time. If you find that keeping the house no longer fits with your financial future, tell your lawyer immediately.

The confirmed Chapter 13 plan obligates you to make the payments you promised as well as obligating your creditors to stand down.

There’s nothing wrong with changing your mind, so long as you change your Chapter 13 plan to match.

Far too many debtors recently get to the end of the case and get their cases dismissed, without a discharge, because they stopped paying on the mortgage and didn’t alert their lawyer.

Make sure you don’t lose house and discharge

Monitoring your mortgage loan

Before you list your house for sale

The Foreclosure That Was Longer Than War & Peace

By Cathy Moran

Foreclosure is coming. Whether by choice or circumstances, you know the bank will take the house.

Should you start packing immediately?

The way banks are currently operating, the answer is: not yet, not soon, not for a long time.

For one of my clients, the answer to how long was well more than 735 days. And they did nothing to delay the inevitable.

Here’s the foreclosure timeline for this California couple.

A year of missed payments

When they filed bankruptcy in June, 2013, they were 13 months behind on their mortgage. That’s 390 days without paying.

The house was waaaaay underwater and they decided upfront to let it go. And said so in the Chapter 13 plan.

From bankruptcy filing to relief from stay

It took 477 days from the commencement of the bankruptcy case for the lender to request and get an order from the bankruptcy court permitting them to foreclose.

Court order til foreclosure

It took another 180 days to actually conduct a sale. At that point, the lender owned the house, but the couple was still living there.

Sale to eviction

Then, remarkably, another 271 days went by before the bank took steps to evict the former owners from the house that it had owned for more than 8 months. And the bank paid the former owners some cash to move out voluntarily.

Your mileage may vary

The experience of this couple doesn’t assure you of a mortgage servicer with a similarly lackadaisical approach. But it is consistent with the data on California foreclosure.

The takeaway is: don’t move out until you absolutely have to.

Living rent free til the foreclosure allows you to build up a kitty to finance the move. Or feed your retirement fund. Or start saving for a new house.

Get paid to surrender possession

Your rights while you’re in foreclosure

Buying a house after foreclosure

Basics of California foreclosure

How To Keep Your House In Chapter 13 Bankruptcy

By Cathy Moran

Saving your home ranks high on the list of reasons people file Chapter 13.

The automatic stay stops foreclosures; Chapter 13 gives you time to fix the problem.

Powerful stuff.

But the stay and more time, alone, isn’t enough to save the day if you run afoul of other rules, written and unwritten, about homeownership in Chapter 13.

So, here’s your manual for Keeping Your Home Through Bankruptcy.

Read your Chapter 13 plan

The basic premise of Chapter 13 is that you continue making payments on your home loan during the plan. Typically, you make the payments that come due after you file, plus catch up on any missed payments via your payments to the Chapter 13 trustee.

In the Bay Area, debtors can choose direct payment or a conduit plan

Every Chapter 13 district does things a little differently but they all treat post filing payments in one of two ways:

either the homeowner makes the payments directly to the mortgage servicer, just as if there were no bankruptcy.
or, the on going payments are made to the Chapter 13 trustee, who in turn pays the mortgage servicer. (Those are called conduit payments.)

Make sure you know how it works in your district, and when your first payment after filing bankruptcy is due.

Keep track of payments you make

Future disputes about whether you made payments directly to the servicer are virtually certain. Arm yourself with a paper record.

You want your paper trail to be complete and retrievable. Chances are, the servicer’s records won’t be as good.

I suggest clients pay by personal check (so you get a cancelled check) and transmit that payment by a means that gets you a receipt showing delivery. With a receipt, you can monitor whether the servicer is promptly crediting your payment, as they are required to do.

Any automatic payments from your bank account or even your ability to pay electronically will undoubtedly be canceled by the servicer.

Compare monthly statements

A new federal rule requires servicers to continue sending you monthly mortgage statements. That’s a welcome change.

More on the new mortgage statement format

The rule breaks out what is happening with your loan, both as to any pre-bankruptcy default and as to the post-filing payments.

Check out the statements to see if they are consistent, and save them for support in case there’s a dispute in the future.

Watch for payment changes

Your monthly payment on your home loan may change during the Chapter 13. Escrow amounts for taxes or insurance may change; your loan may have an adjustable rate, or a time-limited interest only feature.

Bankruptcy rule 3002.1 now requires the servicer to give you advance notice of any change in the monthly payment you must make. If you are in a conduit district, where the trustee makes the on-going payment, ask your attorney how increases in payments are handled.

The rule also requires the servicer to disclose any fees, expenses or charges that it adds to the loan balance during your case. The disclosure must be made to you, your attorney and the court within 180 days of the expense being incurred. You have the right to challenge the expense and have a hearing on whether it’s truly owed.

Pay your property taxes

Depending on your loan terms, you may pay property taxes directly to the local taxing authority. Staying current on property taxes is a condition of being in good standing on your loan.

Know whether your property taxes are escrowed and thus included in your monthly payment, or whether you pay them directly.

If you pay property taxes directly, make it a habit to set aside 1/12th of your annual property taxes when you make your mortgage payment, so you don’t fall behind.

Avoid suffering a motion for relief from stay

The automatic stay is automatic, but it’s not necessarily forever.

If you fail to make required ongoing payments or fail to keep the property insured, the servicer can file a motion asking the court to lift the stay and allow it to foreclose.

More about motions for relief from the stay

Even if you manage to get a deal to cure any defaults, a motion to lift the stay will add to the lender’s attorneys fees, which they will want to collect from you. And that’s on top of whatever you have to pay your own attorney to protect your property.

Don’t go there: stay current.

Deduct the mortgage interest you pay

A large part of most mortgage payments is made up of interest on the loan balance. That interest and any property taxes you pay to the lender are probably tax deductible. But for reasons I can’t explain, servicers don’t give you a tax form 1098 showing the deductible payments you’ve made or the trustee has made on your behalf.

Follow our how-to on calculating your deduction and assembling the records to support your claimed deduction. If you don’t do it, you can be sure the IRS won’t do it for you.

Reducing your income tax bill frees up money to make your plan payments.

Heads up and keep your house

This post bankruptcy to-do list isn’t complicated but it is important. Armed with knowledge of the possible pitfalls, you can head off trouble and sail through Chapter 13.

Mistakes that crater Chapter 13 plans

If you can’t make your plan payments

Why discharge gets snatched away at plan’s end

How 13 Works To Save Your House From Foreclosure

By Cathy Moran

Saving a house from foreclosure is the single reason most people file bankruptcy.

Bankruptcy stops foreclosure- that’s a given.

But then what?

How can bankruptcy save the house, rather than just putting off the inevitable loss?

The mortgage lender has a lien on the house, and liens aren’t discharged in bankruptcy.

So, how does bankruptcy help? Meet Chapter 13 of the Bankruptcy Code.

Chapter 13 bankruptcy is the chapter of choice if your goal is to keep living in the house, as opposed to selling it to realize equity or to avoid the credit hit of a foreclosure.

Chapter 13 imposes a payment plan on lender

Chapter 13 is built to allow the homeowener to cure defaults on long term debts like mortgages.

Gone is the ability of the lender to refuse to take catch-up payments or to insist on cure in a single payment.

This is federal law, and the homeowner is at the helm of this ship.

The homeowner in Chapter 13 proposes a plan for payments to the Chapter 13 trustee. The trustee, in turn, pays creditors according to the plan. The usual distribution scheme pays secured claims, like home loans, first.

So, if you are, say, $24,000 behind on your mortgage, your plan can provide that you pay the trustee a monthly payment that catches up on that default. Chapter 13 plans last a minimum of three years and a maximum of five years.

Your plan will need to provide that you make the on going payments on the mortgage as well. Each district has its own protocol as to whether you write the check to the mortgage lender for ongoing payments or whether you pay the trustee, who pays the lender.

Once your plan is confirmed, the lender is required to accept the payments. Absent some post filing breach on your part, the lender is unlikely to have any way to push back against the payment plan.

Trustee challenges to confirmation

Because the confirmed Chapter 13 plan has such power, both the Chapter 13 trustee and the mortgage lender have opportunity and incentive to object to your plan.

The trustee’s objection is often focused on feasibility. Does your projected budget show that you can pay enough into the plan to do what’s required?

Remember that the amount necessary to fund the plan is not just the $24,000 that our hypothetical debtor owes on the mortgage.

The Chapter 13 trustee gets a commission on the money she handles in the case. So, to get $1000 to the mortgage lender, you have to pay the trustee $1100, where the trustee’s commission is the 10% maximum.

Also, if you owe priority taxes, the Bankruptcy Code requires that those taxes be paid in full over the life of the plan. Likewise, any delinquent family support claims must be paid in full.

So, the total payments to creditors through the plan may need to cover other creditors as well.

The trustee will look at the total amount your plan provides over the life of the plan and comparing it to your projected income on schedules I and J. Does it look like you can pay your current living expenses and the amount required by the plan? If you propose to increase plan payments in future months, is there reason to think you will have the money to do that?

If not, your plan may not be feasible. If it’s not feasible, it doesn’t get confirmed.

Mortgage creditor fights back

The mortgage creditor has standing to oppose confirmation as well.

Even if the secured creditor doesn’t challenge feasibility or good faith, both required for confirmation, the secured creditor has another, less direct weapon.

When you file bankruptcy, the secured creditor gets to claim not only the missed mortgage payments, but any money the lender has advanced for taxes or insurance. And, they may have an escrow shortage projected for the current year’s payments. That’s not to mention foreclosure costs and other fees.

So the lender’s claim may be larger than you expected.

The beauty of Chapter 13 is that the lender has to make full disclosure of those claims and you get to challenge whether the accounting is correct. You can also challenge whether the fees sought are really allowed by the mortgage.

Mortgage check up at plan’s end

So let’s assume that you get your plan confirmed and faithfully make all the payments required.

New bankruptcy rules work to make sure that you emerge from Chapter 13 fully current on your home loan.

Bankruptcy Rule 3002.1 requires a lender secured by a principal residence to give notice to the court, the trustee and the homeowner of payment changes that occur during the case.

Also, if the required escrow payment changes, or any fees get added to the loan during the case, the lender has to file a notice describing the change.

And the homeowner can challenge changes or additions to the debt. If it doesn’t get sorted out, a judge will look at the situation and make a ruling.

After the last payment to the plan, if the lender contends you aren’t fully current on the loan, it has to file a detailed accounting showing how much it claims is unpaid. That accounting is subject to challenge.

Debtor’s rights after 13 is over

One of the few good things included in the 2005 amendments to the Bankruptcy Code, in my opinion, are the provisions that make it a violation of the debtor’s discharge to improperly credit payments made pursuant to a Chapter 13 plan.

All too often, the lender or mortgage servicer either has two sets of books on a loan, or the entries it has made for payments during the plan get altered after the Chapter 13 is over.

Bingo, the lender now claims the borrower is in default, and foreclosure looms.

The bankruptcy court is now a forum for challenging those contentions and getting redress, including the borrower’s attorneys fees to make it happen.

Chapter 13 saves houses

The power of Chapter 13 goes far beyond the automatic stay in giving homeowners a chance to keep their homes.

Not only does it get the homeowner some law to counter balance the endless rights of the lender in the loan documents, it gives the homeowner a referee in the form of a bankruptcy judge who can resolve disputes.

Because bankruptcy judges over the last decade have seen some much of the mortgage meltdown and the deterioration of mortgage servicing up close, they are familiar with the problems and less and less tolerant of lender abuses.

Chapter 13 can be a struggling homeowner’s lucky number.

Our best advice on keeping your house

Image copyright Fotolia and Jakub Krechowicz

Make Sure Your Mortgage Is Current At Bankruptcy’s End

By Cathy Moran

What do you really owe on your home mortgage when you get to the end of your Chapter 13 case?

For years, homeowners couldn’t tell where they were or how to get answers.

But with the recent changes to bankruptcy rules, you don’t have to wonder where you stand with your mortgage lender.

Are you really, fully current with the mortgage?
Are there fees and charges that you don’t know about?
Are you ready to emerge from bankruptcy 100% paid up?
Is the lender really poised to start foreclosure?

Starting December 1, 2016, your Chapter 13 trustee is required to flush out any surprises that lurk in your home loan servicer’s accounts.

And a federal judge stands by to sort it out.

When my client’s Chapter 13 case was through, she was $62,000 better off, because of the rule.

Let’s hear it for Bankruptcy Rule 3002.1.

Why we needed this rule

Rule 3002.1 addresses the lack of transparency that used to exist about your home loan during a Chapter 13.

The Chapter 13 runs 3 to 5 years, and the automatic stay limits the lender’s ability to let you know what’s happening with the loan. (This assumes that the lender ever really wanted to let you know what’s happening, but that’s another rant, another day.)

Lots can happen during those years. Too often, before the rule, debtors would get their Chapter 13 discharge and a foreclosure notice practically in the same day’s mail.

It might be late fees, forced placed insurance, or just plain accounting mistakes. Whatever the reason, the consequences were horrific.

What the rule does

If your Chapter 13 plan provides for payment on your home mortgage, your lender (or the servicer for the lender) must give certain notices to you, the court, and the trustee during the case.

First, they must file a notice if the payment amount changes during the case. The notice must be given at least 21 days before the change takes place.

Second, they must file a notice of any fees, expenses or charges added to the loan balance that were incurred after the case was filed. The notice must be given within 180 days of the time when the charge was incurred.

If you dispute that the charge is allowable, you have a year from the filing of the notice to file a motion and schedule a hearing before the court about the charge.

Current at case end

When you’ve made the last payment to your Chapter 13 plan, the trustee must file a notice of final cure payment and send the notice to you, your attorney, and the creditor.

The notice says that the trustee believes you to have cured any pre bankruptcy default and alleges that you are fully current with payments and fees that came due after you filed.

The mortgage lender must file a responsive pleading within 21 days. If the lender claims that there are unpaid amounts, they must itemize the fees and expenses that they claim are still outstanding in a payment history.

Bingo: you have visibility. And you have a right to file a motion before the court to determine if you’ve cured the default and paid everything that is required of you afterwards.

If the lender screwed up

Chances are pretty high that the servicer has screwed up. Often that takes the form of failure to have given you timely notice of fees added to the loan. Remember, notice must be given within 180 days of when the fees were incurred.

If the lender has failed to give proper notice, the judge can bar the lender from offering evidence in the hearing to determine if you’re current and can award you your attorneys fees caused by the failure.

The rule in action

A lender’s failure to follow the rule in the case of one of my clients resulted in the lender having to forgive some $62,000 in post filing fees and taxes they’d paid without telling my client. In addition, they paid my fees for getting the charges wiped out.

You can read the court’s opinion with the details of each blunder the bank made.

I believe that such results are just the tip of the iceberg in this field.

Get through the maze

The beauty of Rule 3002.1 is that it gets to the heart of your dealings with your home mortgage lender while you still have access to a bankruptcy judge to make things right.

It’s up to you and your attorney to see that the trustee gives the required notice. If the trustee doesn’t, the debtor can.

Then you need analyze the response of the lender and challenge behavior that isn’t compliant with the law.

Don’t miss out on getting all the relief that Chapter 13 entitles you to.

RESPA to the rescue: send information

Mortgage statements after bankruptcy

What’s discharged in a bankruptcy

Federal protections from foreclosure

Dealing with missed payments

Not Fannie or Freddie?

California 90 day grace period

Write and call

Looking forward

More

Not all home mortgages are covered

Hardship must be virus-related

Claiming the protection

What is forbearance

What comes after forbearance

What lenders are offering

Details to follow

When your insurance lapses

Lender protects only themselves

Homeowners exposed to injury liability

More

Not your parents’ home loan

1. Principal balance isn’t what you owe

2. Payments are credited to oldest month unpaid

3. Payments may not be credited

4. Escrow accounts contain something extra

5. Statement doesn’t come from owner of note

Get behind the monthly statement

More

Servicer’s obligation to report

Mortgages excluded from Chapter 13 discharge

Get mortgage payments reported

More

Mortgage lenders get special consideration

1. Regular mortgage payments required

2. Look for other liens

3. Pursue modification

4. Review the lender’s claim

5. Keep records of your payments

6. Read payment change notices

7. Exploit case-end rules

If you change your mind

More

A year of missed payments

From bankruptcy filing to relief from stay

Court order til foreclosure

Sale to eviction

Your mileage may vary

More:

Read your Chapter 13 plan

Keep track of payments you make

Compare monthly statements

Watch for payment changes

Pay your property taxes

Avoid suffering a motion for relief from stay

Deduct the mortgage interest you pay

Heads up and keep your house

More

Chapter 13 imposes a payment plan on lender

Trustee challenges to confirmation

Mortgage creditor fights back

Mortgage check up at plan’s end

Debtor’s rights after 13 is over

Chapter 13 saves houses

More

Why we needed this rule

What the rule does

Current at case end

If the lender screwed up

The rule in action

Get through the maze

More

Categories