About Robert Vitt Expertise I am able to answer general questions regarding Chapter 7 and Chapter 13 bankruptcy cases. I have particular experience in personal (i.e., non-business) bankruptcies. I am unable to answer any questions pertaining to Chapter 11 bankruptcies.
Experience www.bankruptcy-ie.com
I am admitted to practice in the Central District of California and currently run my own law firm which specializes in bankruptcy.
Organizations San Bernardino County Bar Association, California State Bar
Education/Credentials Bachelor of Arts, Philosophy
Master of Business Administration
Juris Doctor
Master of Arts, Philosophy
Past/Present Clients I have had a variety of clients throughout my career. However, my immediate past clients have been predominantly individuals filing for debt discharge under Chapter 7.
Bankruptcy Law - mortgage listed in bankruptcy then sold to another lender after plan accepted
Expert: Robert Vitt - 6/9/2009
Question I filed a chapter 7 in 2004. There were two non-residence investment properties with mortgages on them. These two properties each had a first mortgage that was listed in my bankruptcy schedule "D". The mortgage company (that held both mortgages) requested the automatic stay be lifted to pursue foreclosure on these two properties and the court granted the termination of the automatic stay to the allow the mortgagee company "to exercise its rights under the Power of Sale provisions in the security deed". The bankruptcy was changed to a ch13 and the mortgage company did not file an adversarial proceeding. The bankruptcy plan was approved for the the only debts that filed claims. Approximately six months later (and without my knowledge) the original mortgage company sold the loans to another mortgage company that eventually foreclosed on the properties. This other company is now listing these accounts as collection accounts with very large outstanding balances. I am told the debts are discharged pursuant to the ch13 because it was listed, the debt holder was notified but failed to file an Adversarial Proceeding claim in the bankruptcy, and the bankruptcy in now final and closed for several years. The second company acts like they are not subject to the discharge. What should I do?
Answer Wow, Andrea this is a complex question!
I will preface this answer by stating that I am just not very familiar with Chapter 13. I do mostly Chapter 7. Further, I'm guessing on something in your answer that you are not in California...but maybe I am misreading it.
My guess is that you have a colorable argument here. I would try first to inform these creditors that they are in violation of the bankruptcy discharge. Advise them that you are entitled to (these are the magic words) ATTORNEY'S FEES and sanctions if you are forced to reopen your case to enforce the discharge, or tell them that you will bring a contempt of court order lawsuit against them outright. This threat alone may make them leave you alone. Be sure to put it in writing and send them a copy of the discharge.
This much being said, you may not have a leg to stand on, there is some strange case law out there. In re Gunter, 2008 WL 2440623 (Bkrtcy.S.D.Ohio 2008) There, the collector was served with the discharge order but that was before it was hired to collect the account. The court held the notice was useless, like receiving the wrong person’s junk mail!
The next thing I would do is take all of your paperwork to a local bk attorney. Ask for a free consultation. You may just be able to find an attorney who would be willing to take the case at a discounted rate knowing that he or she may be able to get fees from the other side!
I hope this helps, sorry for the delayed response,
