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Debtor enteres Loan Mod Agreement after Confirmed
I think you can sue in either forum. BK is a more powerful forum because
when a case is open, most people think the stay is in effect when it
probably isn't. However, it's probably, technically the wrong forum,
although forum challenge may not be made.
If this is your client's residence, then what did the Plan purport to do?
Cure arrears? Your client did not cure arrears because she entered into a
modification agreement correct? I am thinking out loud, but what violation
of the Plan is there?
In 2009 Chase may have fraudulently extracted money from your client by
this alleged "loan mod" that your client received. Is this lawsuit reserved
by the confirmed Plan or does confirmation bar it? Can you think of ways to
bring it back to life? If not, it's gone.
Considering the Plan did not do anything to Chase's claim except try to
cure it, the loan modification trumps the Plan. That's how it's done, but
wait, we're lawyers so everything can be read in every kind of way. So
maybe Dennis would make the argument that the order confirming the Plan
directs the parties to follow and be bound by the Plan (even the Judge), so
unless a loan modification was contemplated by the Plan, how can you
unilaterally modify it?
I think all of this mucks things up enough that you should be able to
settle without trial etc.
I hope this helped. I would call the attorney representing SPS and speak
with him. It's up to you how aggressive you want to be with opening the
case and/or filing a state court action (and/or another chapter 11).
I don't think you need a 9019 or anything for the loan mod. I do think
technically you need to comply with 1127(e) and (f).
Sincerely,
Michael Avanesian
On Fri, Aug 29, 2014 at 12:07 PM, Catherine Christiansen
christiansenlaw@yahoo.com [cdcbaa] wrote:
>
>
> Need advice:
>
> Plan confirmed just last year (11/2013). Debtor enters Loan Modification
> Agreement on residence 1/2014. Debtor has proof paying according to Loan
> Mod. Case administratively closed earlier this year. Lender's servicer
> SPS moved file from bankruptcy to loss mitigation - began calling and
> filing NOD.
>
> Does the Loan Modification trump the confirmed plan?
>
> Debtor had a long hard battle with Chase to save their home, since 2009,
> during the chapter 11 Chase the "lender" refused to accept monthly payments
> which created a default, then during the Chapter 11 US Bank raised its hand
> to claim it is the "actual lender" - yeah whatever. Stipulation entered
> for plan treatment of debt. Debtor actually already had a loan
> modification in place before the Chapter 11, so during the Chapter 11
> Debtor was told that the loan could not be modified because it already
> was. I administratively closed the case for the 5 year period of payments
> to the unsecured creditors and to save the Debtor the quarterly trustee
> fees. Debtor has called and spoken with SPS representatives who apologize,
> tell the debtor that the NOD's are not correct, etc. , yet issue another
> NOD and continue calling.
>
> I just sent QWR.
>
> So . . . is this a state court matter? Because the Debtor is paying
> according to post confirmation loan mod not the confirmed plan.
> Or . . . Reopen BK case for approval of Loan Mod and/or modify plan? Then
> go after lender for violation of Loan Mod/modified plan?
>
> It just seems like there is a nasty can of serpents no matter which way.
>
> Thanks for your ideas in advance.
>
>
> Law Office of Catherine Christiansen
> Certified Specialist, Bankruptcy Law, The State Bar of California Board of
> Legal Specialization.
>
>
>
>
I think you can sue in either forum. BK is a more powerful forum because when a case is open, most people think the stay is in effect
The post was migrated from Yahoo.