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Increased mortgage payment due to impound
What can I do in preparing my Debtor for filing?
My Debtor had his impounds increase by $850/month for property tax arrears. Does this increased property tax impound get included in the allowable housing expenses for the Means Test? If so, my Debtor has a negative cash flow. Can he now file a Chapter 7?
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> I remember a Texas case stating that the lender was allowed to advance escrow post petition based on the pre-petition failure to maintain the taxes. The pre-pet taxes were part of the original claim and the post pet escrow was allowed so long as reasonable...
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> Afterall, the note does allow for the advance of property taxes...
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> I hope I am wrong...and by Davids post, I might be...
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> ----- Original Message -----
> To: cdcbaa@yahoogroups.com
> Sent: Monday, April 20, 2009 11:14:42 AM GMT -08:00 US/Canada Pacific
> Subject: RE: [cdcbaa] Increased mortgage payment due to impound
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> Nancy:
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> Some research will be needed to confirm my assessment that it is a stay violation, but their advance subjects the debtor to an increase in interest rates, penalties and other changes in terms from what the County Tax Assessor would charge. Further, one could make a reasonable argument that there was no need to make the advance because their collateral is not in serious jeopardy for at least 4 years as a result of the nonpayment of tax.
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> I would do an objection the claim and provide for the payment of the taxes to them over the cure period of the plan. If the facts show a post-petition advance and if the research bears out my assessment, then consider an OSC re contempt.
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>
> David A. Tilem
> Certified Bankruptcy Specialist *
> Law Offices of David A. Tilem (a debt relief agency)
> 206 N. Jackson Street, #201 , Glendale, CA 91206
> Tel: 818-507-6000 Fax: 818-507-6800
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
>
>
>
> -----Original Message-----
Nancy Clark
> Sent: Monday, April 20, 2009 10:49 AM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Increased mortgage payment due to impound
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> So it is a violation of the automatic stay if they change the mortgage payment post petition and it is not a scheduled change and it is also a violation of the automatic stay to pay the post petition debt owed by debtors to a separate entity (debtors do not have the money). So, how do I resolve the issue if the debtors dont have the money? Should I wait for an objection from the creditor or an MFR? Should I file my own objection to claim?
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> Nancy Clark
> Borowitz, Lozano & Clark, LLP
> 100 N. Barranca Avenue, Suite 250
> West Covina, CA 91791
> Office: (626) 332-8600
> Fax: (626) 332-8644
>
> Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it.
>
> IRS Circular 230 Disclosure: To ensure compliance with Treasury Department Regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication was
> not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matter addressed herein.
>
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David A. Tilem
> Sent: Monday, April 20, 2009 10:26 AM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Increased mortgage payment due to impound
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> They may have violated automatic stay if it was post-filing. Even if not, you can still reimburse them over the life of the plan the same way you cure any arrearage. Put it in your plan that way and let them object.
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> David A. Tilem
>
>
> Certified Bankruptcy Specialist *
>
>
> Law Offices of David A. Tilem (a debt relief agency)
>
>
> 206 N. Jackson Street, #201 , Glendale, CA 91206
>
>
> Tel: 818-507-6000 Fax: 818-507-6800
>
>
>
>
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
>
>
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
>
>
>
>
>
>
>
> -----Original Message-----
Nancy Clark
> Sent: Monday, April 20, 2009 10:25 AM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Increased mortgage payment due to impound
>
>
>
> We dont know. We asked for the information and they have not sent it. So, we sent a QWR and they still have not responded yet.
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David A. Tilem
> Sent: Monday, April 20, 2009 10:20 AM
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] Increased mortgage payment due to impound
>
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> When did the lender make the advance? Pre or post petition?
>
> David A. Tilem
>
>
> Certified Bankruptcy Specialist *
>
>
> Law Offices of David A. Tilem (a debt relief agency)
>
>
> 206 N. Jackson Street, #201 , Glendale, CA 91206
>
>
> Tel: 818-507-6000 Fax: 818-507-6800
>
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal Specialization.
>
>
> Business bankruptcy specialist cert. by Amer. Bd. of Certification
>
> -----Original Message-----
nancybonaccorso
> Sent: Monday, April 20, 2009 9:50 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Increased mortgage payment due to impound
>
>
> I have clients in chapter 13 who have not paid their property taxes. Case was filed 9/30/08. Our plan made provisions to pay the property taxes throught the plan but upon filing the mortgage company impounded the taxes and on 10/6/08 the mortgage company notified the debtor that their payment increased by over $1100. The mortgage company send them a notice stating that their mortgage was increasing by $585 per month starting in December to pay the current years impound. They also informed the debtor that the mortgage payment was increaseing by another $524 for future impounds. By my calculations twelve months of $585 amount would pay off the escrow shortage as of 12/2008 and the continued $524 would pay all future taxes.
>
> I realize the mortgage company can impound the taxes but can they require the debtor to pay the $585 amount for 12 months while the debtor is in bankruptcy? The taxes were technically due in June 2008 but are payable in December and April. The letter to the debtor came in October.
>
> Nancy Clark
> Borowitz, Lozano & Clark, LLP
> 100 N. Barranca Avenue, Suite 250
> West Covina, CA 91791
> Office: (626) 332-8600
> Fax: (626) 332-8644
>
> Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it.
>
> IRS Circular 230 Disclosure: To ensure compliance with Treasury Department Regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication was
> not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matter addressed herein.
>
>
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>
>
> --
> Matthew D. Resnik
> Attorney at Law
> Simon and Resnik LLP
> 449 S. Beverly Drive
> Suite 210
> Beverly Hills, Ca
> 90212
> T:310-788-9777
> F: 310-788-0017
> Matt@...
> www.simonresnik.com
>
The post was migrated from Yahoo.
Nancy:
Some research will be needed to confirm my assessment that it is a stay
violation, but their advance subjects the debtor to an increase in interest
rates, penalties and other changes in terms from what the County Tax
Assessor would charge. Further, one could make a reasonable argument that
there was no need to make the advance because their collateral is not in
serious jeopardy for at least 4 years as a result of the nonpayment of tax.
I would do an objection the claim and provide for the payment of the taxes
to them over the cure period of the plan. If the facts show a post-petition
advance and if the research bears out my assessment, then consider an OSC re
contempt.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Nancy Clark
Sent: Monday, April 20, 2009 10:49 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Increased mortgage payment due to impound
So it is a violation of the automatic stay if they change the mortgage
payment post petition and it is not a scheduled change and it is also a
violation of the automatic stay to pay the post petition debt owed by
debtors to a separate entity (debtors do not have the money). So, how do I
resolve the issue if the debtors dont have the money? Should I wait for an
objection from the creditor or an MFR? Should I file my own objection to
claim?
Nancy Clark
Borowitz, Lozano & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Privileged/Confidential Information may be contained in this message. If you
are not the addressee indicated in this message (or responsible for delivery
of the message to such person), you may not copy or deliver this message to
anyone. In such case, you should destroy this message and kindly notify the
sender by reply email. Please advise immediately if you or your employer
does not consent to Internet email for messages of this kind. Opinions,
conclusions and other information in this message that do not relate to the
official business of my firm shall be understood as neither given nor
endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department
Regulations, we advise you that, unless otherwise expressly indicated, any
federal tax advice contained in this communication was
not intended or written to be used, and cannot be used, for the purpose of
(i) avoiding tax-related penalties under the Internal Revenue Code or
applicable state or local tax law provisions or (ii) promoting, marketing or
recommending to another party any tax-related matter addressed herein.
_____
The post was migrated from Yahoo.
I did a Motion to Disallow on this very issue which was heard before MT last
week. One of my arguments was the violation of stay issue, and was prepared
to bring in the subsequent 9th Circuit Griffin v. Wardrobe to provide
further support if needed at oral argument. After proper service, our
motion to disallow the post-petition impounds was unopposed and the learned
judge granted our motion.
Remember: Griffin held that amending (post-petition) a state court
complaint was a violation of the stay. While I'm sure it can be
distinguished from post-petition mortgage impounds, I can also very easily
analogize it, as Class 2 is being increased post-petition to collect
"something else" that wasn't due pre-petition. I sent the case around on
3/19. Hale
_____
The post was migrated from Yahoo.
So it is a violation of the automatic stay if they change the mortgage payment post petition and it is not a scheduled change and it is also a violation of the automatic stay to pay the post petition debt owed by debtors to a separate entity (debtors do not have the money). So, how do I resolve the issue if the debtors dont have the money? Should I wait for an objection from the creditor or an MFR? Should I file my own objection to claim?
Nancy Clark
Borowitz, Lozano & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department Regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication was
not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matter addressed herein.
________________________________
The post was migrated from Yahoo.
They may have violated automatic stay if it was post-filing. Even if not,
you can still reimburse them over the life of the plan the same way you cure
any arrearage. Put it in your plan that way and let them object.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Nancy Clark
Sent: Monday, April 20, 2009 10:25 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Increased mortgage payment due to impound
We dont know. We asked for the information and they have not sent it. So,
we sent a QWR and they still have not responded yet.
_____
The post was migrated from Yahoo.
When did the lender make the advance? Pre or post petition?
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
nancybonaccorso
Sent: Monday, April 20, 2009 9:50 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Increased mortgage payment due to impound
I have clients in chapter 13 who have not paid their property taxes. Case
was filed 9/30/08. Our plan made provisions to pay the property taxes
throught the plan but upon filing the mortgage company impounded the taxes
and on 10/6/08 the mortgage company notified the debtor that their payment
increased by over $1100. The mortgage company send them a notice stating
that their mortgage was increasing by $585 per month starting in December to
pay the current years impound. They also informed the debtor that the
mortgage payment was increaseing by another $524 for future impounds. By my
calculations twelve months of $585 amount would pay off the escrow shortage
as of 12/2008 and the continued $524 would pay all future taxes.
I realize the mortgage company can impound the taxes but can they require
the debtor to pay the $585 amount for 12 months while the debtor is in
bankruptcy? The taxes were technically due in June 2008 but are payable in
December and April. The letter to the debtor came in October.
Nancy Clark
Borowitz, Lozano & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Privileged/Confidential Information may be contained in this message. If you
are not the addressee indicated in this message (or responsible for delivery
of the message to such person), you may not copy or deliver this message to
anyone. In such case, you should destroy this message and kindly notify the
sender by reply email. Please advise immediately if you or your employer
does not consent to Internet email for messages of this kind. Opinions,
conclusions and other information in this message that do not relate to the
official business of my firm shall be understood as neither given nor
endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department
Regulations, we advise you that, unless otherwise expressly indicated, any
federal tax advice contained in this communication was
not intended or written to be used, and cannot be used, for the purpose of
(i) avoiding tax-related penalties under the Internal Revenue Code or
applicable state or local tax law provisions or (ii) promoting, marketing or
recommending to another party any tax-related matter addressed herein.
Message
When did the lender make
the advance? Pre or post petition?
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
I have clients in chapter 13 who have not paid their property taxes. Case was filed 9/30/08. Our plan made provisions to pay the property taxes throught the plan but upon filing the mortgage company impounded the taxes and on 10/6/08 the mortgage company notified the debtor that their payment increased by over $1100. The mortgage company send them a notice stating that their mortgage was increasing by $585 per month starting in December to pay the current years impound. They also informed the debtor that the mortgage payment was increaseing by another $524 for future impounds. By my calculations twelve months of $585 amount would pay off the escrow shortage as of 12/2008 and the continued $524 would pay all future taxes.
I realize the mortgage company can impound the taxes but can they require the debtor to pay the $585 amount for 12 months while the debtor is in bankruptcy? The taxes were technically due in June 2008 but are payable in December and April. The letter to the debtor came in October.
Nancy Clark
Borowitz, Lozano & Clark, LLP
100 N. Barranca Avenue, Suite 250
West Covina, CA 91791
Office: (626) 332-8600
Fax: (626) 332-8644
Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of my firm shall be understood as neither given nor endorsed by it.
IRS Circular 230 Disclosure: To ensure compliance with Treasury Department Regulations, we advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication was
not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matter addressed herein.
The post was migrated from Yahoo.