Ladynred ...or anyone that can answer this....

[ogwhit]

What is the name of your state? PA
When you file for chapter 13, is the mortgage company included on the trustees payments, suposed to "separate" pre-petition from post-petition payments?
Our mortgage company has been using our post petition payments and applying them to the pre-petition arrears, has been taking the trustees money and putting it in a suspense account , and then using it to pay for attorney's fees , late fees, and also for post petition payments , which by the way are higher than the pre-petition payments.
To top that off, they screwed themselves with the POC , they didn't give the court the correct amounts and now they expect $2500 more than they actually will get, but they are SOL.
I'm so tired of having to figure out what they are doing , that I'm going to start charging them for my time!

 

[Elmo-1]

ogwhit - this is where you need to get your attorney involved. Secured debts have to be satisfied, pre-petition and post to keep the asset. It might not seem fair, but the debtor has to make sure the secured creditor files an accurate proof of claim so every penny of their pre-petition debts is cured.

Talk to your lawyer to see if the banks attorney fees can be added to your case as unsecured. Even if it's not, you'll be better off ammending your plan than having unresolved secured pre-petition debt waiting for you on the other side of Ch13.

 

[ogwhit]

We do have an attorney , but you see, the problem is first they filed one POC with one specific amount, and before the plan was confirmed, they never objected. Then 11 months later they filed a second POC and they added the $2500 extra BUT the only reason why we found out was because WE asked the mortgage company to send us a copy of the POC ( we thought they would send us the original one ) and they sent us one, filed 7 months after the plan was confirmed. The courts filed it as "received" but never made any changes , the trustee , the attorney or ourselves never got any notices about any possible changes and nothing was filed by the court.
My opinion is , if the mortgage company made a mistake and underestimated the POC, they should eat up the mistake, not me.

 

[Elmo-1]

As long as the 2nd claim was accepted and approved by the Trustee that will do one of two things:

1) reduce the amount the unsecured creditors get, or
2) increase the number of months in your plan to cover the additional claim by the mortgage company.

Neither of the above adjustments would require a payment increase. A 60-month plan can't be extended, but if your plan is something less, look for the courts to tack on a few more months.

If their latest POC wasn't accepted contact your attorney and have him work out the details. He'll need to contact the bank's lawyers to make sure all the pre-petition 'tack-on' charges are legitimate and will be cured by the Trustee payments.

If not, this could be a real mess down the road. Because it's secured, they will not eat a mistake on a POC. Their unpaid 'mistakes' will be tacked on with late charges, etc that will show up after your discharge.

The only thing Bk is doing is prohibiting collection actions on the debt for the term of your plan. A kind of false sense of security. The debt is secured so it will be there after Bk, along with all the associated charges that accumulate while you're in Bk.

If you don't straighten this out before your plan is done, you'll be right back in Ch13 to cure those accumulated debts to keep them from foreclosing. The longer you wait the more it'll be.

Right now you can get all of what they're claiming into THIS plan and be done with it in a few years. I'm not trying to alarm you (well, maybe I am), but only because your house and financial recoup is in the balance.

 

[ogwhit]

Thanks Elmo, I understand what you are saying , but the attorney really needs to get a hold of this because some of the charges they raised from the original POC.
But eventhough this is a secured claim , where does the expiration date for the POC come into place? Is there not a deadline where the court says, no , you didn't submit this on time, you didn't object to the plan and now you cannot collect this?
The trustee never got the second POC, neither did the attorney, we received it in October 2003 because we asked for it, but this thing is stamped as August 2000, the 341 meeting was in September 1999.
If it wasn't for us asking for this, we would not even know about the existence of this second POC. We can see from it that it was "filed" by the court but nothing was done with it , it doesn't show on PACER, the attorney and trustee didn't get one , so I am assuming it wasn't accepted, the court never notified us of anything.
This is just one of the many mistakes they have made, truthfully I'm tired of them.

IF , as you said the second POC was accepted by the trustee, I think he would have contacted us and our attorney to let us know, but that hasn't been the case.