Chap 13 bankruptcy question-2nd mortgage note

5 Replies

Fellow Note Investors,

I am reviewing the Chap 13 BK filing and plan in Pacer on a 2nd mortgage that is 100% secured.  The Chapter 13 plan calls for the arrearages to be repaid over 60 months, but does not include the original mortgage payment anywhere in the plan.  

Once the debtor reaffirms the debt, is it a given that the debtor will begin making the regular monthly payment as well as the payment towards arrearages during the term of the plan?

I want to make sure that since the original payment is not in the plan, that the plan does not create a "forbearance" in which the debtor only makes payments towards arrearages and the monthly payment is put on hold until the end of the plan.  

Thank you for your help!

@Eric S.
Since the arrearages are noted the current lender must have filed a proof of claim. Check to confirm the proof of claim and it has the proper amounts in it. The approved plan or some document within the BK should not the mortgage is to be paid outside of the BK.

This is not uncommon - I own 6 notes in BK and it's been 50/50 on whether the mortgage was through the BK or outside the BK

In BK, NOTHING is a given.  I owed a well secured second and borrower was suppose to make payments to the first outside of the plan. He did not.  The first filed for a relief of stay because the borrower failed to pay them during the BK period.  I can only assume that they will be filing for FC as soon as the stay is lifted.

BK attorneys for the borrower have gotten very crafty these days in ways to try to protect their clients and make the note holders very uncomfortable. I had one file an adversarial proceeding against my company-totally bogus but I had to spend money fighting it in court. They attempted to cram down a loan that had over $50,000 in equity because the HELOC was coming due during the BK period citing HELOCs as a "short term loan." The tricks go on and on......

Hello:

It has been a while since I prosecuted a claim in BK court but I do recall that we always petitioned to have the secured asset excluded from the BK estate.  However, that was in a foreclosure posture and not in a situation where we were trying to get payments.  We were more concerned with moving forward with a foreclosure/eviction than in getting cash from the buyer.

Is your note secured by the property or just a 2nd note not linked to a mortgage?

Bob

I would make sure there is a POC from the last note owner filed in BK court and if you buy you should file a TOC (transfer of claim).  I was not sure if you own note now or looking to buy it.  I would look over the BK plan again and see if it states somewhere that the mortgage payment is made directly to lender or BK court.