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Bankruptcy Law/In chapter 13, behind on mortgage

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Expert: - 10/18/2007


Question
My husband and I had our Chapter 13 plan confirmed in Dec 2006. Things were going good until we had an illness in our family and now we are 2 months behind on our mortgage payments. We haven't received a notice of a motion to lift automatic stay, but fear that we will soon. We have contacted our mortgage company who refuses to talk to us and says that our lawyer has to contact them. He hasn't returned our phone calls either. With my husband working overtime, we will be able to pay the two payments that we are behind plus our payment for November by November 20. My question is what do we do? The mortgage company won't accept partial payment. We don't want to lose our home. If a motion is filed, what happens next and what do we have to provide our lawyer with in order to try to stop the motion?

Thanks so much for your time!

Answer
I am very disappointed to hear that you have a lawyer that will not return calls. That is inexcusable. I suggest that you inform the trustee in writing that your lawyer will not communicate with you, and consider filing a complaint with your state bar, and send a letter to the judge that your case is assigned to and request that the court's discipline committee investigate this.

If the motion for relief from stay is filed before you are caught up, you may oppose the motion by filing a correct legal response and showing the court what you propose to do to get caught up. When a motion is filed, it will be served on you by sending you a copy via regular mail. Usually you will have 14 days or more to file your response.

Most lenders will work with you at that point, after you have responded to the motion, provided that you agree to an Order from the court spelling out the terms of the agreement and consenting to give the lender relief from stay automatically if you don't live up to the agreement. This is what we call an "Adequate Protection Order." Unfortunately you will incur some attorney fees for responding to the motion.

All things considered, I think maybe you should be looking to change lawyers? In any event, I really like the fact that you are being so proactive on this and have already established a plan to deal with this problem. I wish all of my own clients were as well organized and on top of things as your are!

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Los Angeles Bankruptcy Lawyer Leon D. Bayer

Expertise

Leon Bayer has successfully represented clients in bankruptcy for over 30 years. He is frequently called upon by the media, the California Bar and other associations to provide insight and help educate attorneys on bankruptcy issues. If you or other readers want to keep up with my blog postings about life in and out of bankruptcy, you can follow my blog at http://www.bankruptcyblogger.org/ and my personal web site at http://www.debt-relief-bankruptcy.com and A Human Guide to Bankruptcy at http://www.thebankruptcyguide.net/ Leon also writes about bankruptcy law for Nolo, see http://www.nolo.com/law-authors/leon-bayer.html and his "Ask Leon" bankruptcy law blog column at http://blog.nolo.com/bankruptcy/

Experience

Leon is a Certified Specialist in Bankruptcy Law by the State Bar of California, and has been a practicing bankruptcy lawyer in Los Angeles, California for 33 years.

Organizations
National Association of Consumer Bankruptcy Lawyers, California Bar Association, Los Angeles County Bar Association.

Publications
Author, ?The Essentials Of Chapter 13,? Daily Journal Report, December 18, 1987.
Contributing Editor, Basic Bankruptcy, California Practice Handbook, Matthew Bender 1992, 1993.
CEB Consultant, CEB-Personal and Small Business Bankruptcy Practice in California, 2003.


Education/Credentials
B.A., J.D.

Awards and Honors
President, 1995-1996-Los Angeles Bankruptcy Forum; Member - Los Angeles County Bar Association Committee on Commercial Law & Bankruptcy, 1988. Law Advisory
Commission-Personal & Small Business Bankruptcy Law of the State Bar of California, 1996-2000

MR. BAYER SAYS: The big banks and credit card companys have been working overtime for many years to undermine the Consitutional right of the American people to be able to claim bankruptcy protection. In 2005 the banking lobby successfully convinced Congress and the President to make the laws and proceedures more complicated, hopeing that it will stymie legitimate people from filing bankruptcy. They succeeded in gaining these complex new legal proceedures by greasing the legislative system with hundreds of millions of dollars in "campaign contributions." The good news for the American people is that while the new laws have made the proceedures needlessly complex to the point where inexperienced people can't help but trip over the maze of new rules and regulations, the process is still doable, especially with a lawyer who is well trained and experienced in this specialty.

Past/Present Clients
I have probably handled something on the order of about 15,000 bankruptcy cases thropughout my career.

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