Posted on: 07th Sep, 2009 08:19 pm
I filed chapter 13, mortgage company had stay lifted, I finished the plan and recieved discharge minus the mortgage arrears in the BK and the outside mortgage payments. Turns out the mortgage was never recorded, Mortgage company is now trying to record the mtg. in state court then foreclose, is this a violation of the discharge order? Does it matter that they certified that they had a perfected mortgage in the BK Court when they didnt and had the stay lifted based on being a secured creditor when they werent?
Welcome ally,
As the mortgage was not included in your bankruptcy filing, it was not discharged. Thus, if the lender wants to record the mortgage now and get the property foreclosed, I believe it won't be a violation of the discharge order. A discharge order does not mean that all your debts have been forgiven. If your mortgage would have been included in the bankruptcy filing, then the lender would have given you a repayment plan to clear off the mortgage dues within 3-5 years.
As far as I can understand, though your mortgage was not recorded, it won't be considered as an unsecured debt. The lender is trying to record the mortgage now because this will help him in claiming the deficiency from you. Also, he would be able to go for a judicial foreclosure if it's allowed in your state.
As the mortgage was not included in your bankruptcy filing, it was not discharged. Thus, if the lender wants to record the mortgage now and get the property foreclosed, I believe it won't be a violation of the discharge order. A discharge order does not mean that all your debts have been forgiven. If your mortgage would have been included in the bankruptcy filing, then the lender would have given you a repayment plan to clear off the mortgage dues within 3-5 years.
As far as I can understand, though your mortgage was not recorded, it won't be considered as an unsecured debt. The lender is trying to record the mortgage now because this will help him in claiming the deficiency from you. Also, he would be able to go for a judicial foreclosure if it's allowed in your state.
Hi Ally,
Though the mortgage was included in your bankruptcy filing, the lender received the stay relief. Thus, the lender has the right to foreclose the property and the mortgage won't be considered as included in your bankruptcy filing.
Right now, the lender wants to record the deed or else he won't be able to foreclose the property as you've mentioned that your state requires recording information.
Thanks
Though the mortgage was included in your bankruptcy filing, the lender received the stay relief. Thus, the lender has the right to foreclose the property and the mortgage won't be considered as included in your bankruptcy filing.
Right now, the lender wants to record the deed or else he won't be able to foreclose the property as you've mentioned that your state requires recording information.
Thanks