Can I get a bankruptcy discharge even after I have defaulted on multiple mortgage payments?
Date: Thu, 03/18/2021 - 19:58
Just a follow-up for @wiltoon
Just a follow-up for @wiltoon (OP)’s information.
Here is the Minute Entry from the Hearing on the Trustee’s MTD that I mentioned above. I have removed attorney names and certain dates:
(Attorney for the Trustee) reviews the Motion to Dismiss and advises that the debtor is behind on post-petition mortgage payments as required under the plan. (Attorney for the Trustee) urges that the case be dismissed.
(Attorney for the Debtor)informs the Court that the debtors have recently entered into a new loan forbearance on their mortgage, which covers the time period from ______, 2020 to _____ of 2021. The debtors have also applied for a loan modification, but they will not receive an answer regarding that application for 30 to 60 days.
(Attorney for the Trustee) asks that the Court set a continued hearing in 30 days.
COURT: IT IS ORDERED SETTING A CONTINUED HEARING ON ______, 2021 AT ___ PM. THIS HEARING CAN BE VACATED IF THE MATTER IS RESOLVED.
OP - please discuss this with your attorney. As Debtor's Counsel, I think this approach by the Trustee is BS but, case law supports the Trustee's position as judges buy into the argument. I may have to come up with some clever language to put into the Plans in an effort to avoid this "injustice".
Des.
The answer is no.
The answer is no.
If you have defaulted while repaying your Chapter 13 bankruptcy, the creditor may obtain permission from the court to foreclose on your house.
The correct answer is “maybe”
The correct answer is “maybe” as such depends upon how your Trustee handles this issue AND what the Order Confirming your Plan required you to do to obtain a discharge.
Case in point and, for all I know you are the debtor in this one, a Hearing on the below Motion is set for this week but here is the exact Motion filed by one of the Trustees in Arizona:
Chapter 13Trustee, moves to dismiss this case pursuant to 11U.S.C. § 1307(c)(6) and F.R.B.P. 1017(f). The Debtors have defaulted on a material term of the confirmed pan by failing to complete all payments required. Therefore, pursuant to 11U.S.C. § 1328(a), the Debtors are not eligible for a plan completion discharge.
The terms of the Order Confirming Plan require the Debtors to make post-petition mortgage payments directly to Specialized Loan Servicing LLC, claim number 011. On October 28, 2020, Specialized Loan Servicing LLC filed its response to the notice of final cure payment ("the Response"). The Response states that post-petition mortgage payments due during the term of the Plan are delinquent in the amount of $14,041.22.
The Trustee asserts that the post-petition mortgage payments or other payments, even if to be paid directly by the Debtors or included in the plan payment to the Trustee, constitute "payments under the plan" for purposes of a plan completion discharge under § 1328(a). See In re Mrdutt, 600 B.R. 72 (9th Cir. BAP 2019) and In re Gonzales, 570 B.R. 788 (S.D. Tex 2017).
While the Debtors have completed the plan payments to the Trustee required under the Order Confirming Plan, the Debtors have failed to remain current on the post-petition mortgage obligation and, therefore, have failed to complete all required payments required under the Plan.
The Trustee will submit an order granting this Motion and dismissing this case unless a response is filed by the Debtors by Wednesday, February 1, 2021. If a response is timely filed, the Trustee will set a hearing on the matter.
WHEREFORE, the Trustee respectfully requests that the Court enter an order dismissing the case based on the Debtors failure to comply with the terms of the Order Confirming Plan.
Bottom line - discuss this with your attorney.
Des.