My CH7 was discharged July 2012, then I filed emergency 13 on Oct, 2012 for the purpose of:
1) postpone trustee sale on my SECOND PROPERTY.
2) Rescind the sale of Oct. 2012 and prevent UD on my PRIMARY RESIDENCE.
After filing 13, the sale date was postpone pending modification on second property.
However, I got 3 days notice to vacate on my primary residence. My sisters and niece are renting room. I missed to complete the 14 days deadline on my chapter 13. I am confused and not sure if I am qualified on BK 13 since my BK 7 was discharged 4 months ago and have limited income. What steps or option do I have?
I would greatly appreciate your time in this matter. Thank you so much...
Nima Stephen VokshoriBankruptcy AttorneyLos Angeles, CA ·
An active Chapter 13 bankruptcy will serve to postpone the sale date on your second property. On the other hand, it will not help you rescind the sale on your primary residence. There are other civil remedies available for homeowners that wish to rescind a foreclosure sale but the burden is very high and often difficult to prove.
If you missed the 14 day window to complete your petition, you will likely receive an order from the court dismissing your case. If your case is dismissed, you won't benefit from the automatic stay protections and the lender can move forward with a sale. Upon dismissal and before the home is sold, you have the option to refile a new Chapter 13 but the automatic stay will only last you for 30 days in the new case unless you petition the court for an extension. That said, I would highly recommend that you hire counsel before doing anything else.
A chapter 13 cannot serve to undo a foreclosure sale that has already taken place. It might delay a foreclosure sale that has not happened yet, but for you that would not be automatic if you tried to refile at this point. You should consult with an attorney to see whether it is possible to try to save the second property. From what you said it seems to be too late to save the primary residence.
I agree with my colleague. You can file Chapter 13. Whether that will succeed in doing what you want is another question all together. You need the advice of a local attorney.
David Lloyd MerrillChapter 11 Bankruptcy AttorneyWest Palm Beach, FL ·
There is not enough information here to fully answer your question, and I am not certain if a sale was held or if it was set but stopped by a prior filing, and without knowing your income and expenses there is really no way to know if you qualify. Can you fill in some of these blanks so that we can give you more detailed suggestions?
A chapter 13 petition can be filed to postpone a trustee sale indefinitely and catch up on the arrears. You just can't a discharge in the chapter 13 case because less than 4 years have passed since the chapter 7 discharge. Also, filing a second chapter 13 case will not, of itself, reverse a trustee sale that has already occurred.
The only thing a chapter 13 could do for you is to allow you to pay the arrearages on your property over a five year period. However, you would still be required to pay your regularly monthly mortgage payment.
Furthermore, since you had a previous bankruptcy filing within twelve months the automatic stay is only good for thirty days. You would need to file a motion with the court requesting that the stay be continued beyond thirty days.
I would strongly urge you to consult an Attorney prior to attempting filing another chapter 13 on your own.
Jonathan Leventhal, esq.
Leventhal Law Group, P.C.
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Brad Francis WeilChapter 13 Bankruptcy AttorneyLong Beach, CA ·
Your Chapter 7 discharge protected you from personal liability on all of your pre-petition debts. The Chapter 13 following a Chapter 7 can be used to pay back any non-dischargeable debt through the plan and/or to cure arrears on property to save it from foreclosure. Bankruptcy should not be used merely to postpone trustee sales unless you have a plan to save the home long term. Bankruptcy cannot rescind trustee sales. Once a home is sold at a trustee sale it is gone. You can sue the trustee and the bank for damages for wrongful foreclosure but it is rare to get the house back and bankruptcy is not the correct route to take to accomplish that goal. Your Chapter 13 bankruptcy is now dismissed, which means you are no longer in bankruptcy. If your loan modification is granted on the second property you will not need a bankruptcy as you have already lost your primary residnece to foreclosure. As of now you are legally a squater and you are illegally renting rooms in a property you no longer own. Your sister and niece may have more rights against the new owner as tenants than you have as a former owner. You probably do not qualify nor do you need a Chapter 13 bankruptcy. Your options are very limited at this point. See an attorney.
