The bills in both the House and Senate which would have allowed bankruptcy judges to modify the terms of certain mortgages died long ago. However, one prominent Chapter 13 bankruptcy trustee is promoting his own version of reform by promoting the use of HAMP (Homeowners Affordable Modification Program) in concert with a Chapter 13 bankruptcy. Lenders and Servicers need to be aware of this and the issues it presents.
The idea is to submit an application for
The assumptions behind this idea show its inherent problem - delay. Among the assumptions are the following: the debtor is a viable candidate for
Even if the modification process goes smoothly, a huge delay is overlooked. Confirmation hearings are usually set within 60-90 days after a case is filed, and plans can be confirmed in 60 days in some jurisdictions. Under HAMP, a signed modification will not be permanent until and unless the debtor pays according to the modification for three consecutive months. Assuming that a plan cannot be confirmed until the modification is finalized, it will be at least 4 ½ months until the plan can be confirmed. Meanwhile, the creditor is bound by the automatic stay.
Moreover, if the debtor cannot afford the existing mortgage payments, how will it be paid after the bankruptcy is filed? If a post-petition default accumulates, creditors have grounds for relief from stay. Will courts put off granting relief while
How could a debtor propose a budget and a plan if he or she cannot afford the current mortgage payments? If not, the debtor must file a budget and plan that are unfeasible or based on a future unknown payment. With either option, creditors have grounds for denial of confirmation, dismissal of the case or relief from stay. Will courts delay or deny creditors this relief while a debtor is waiting for a loan modification? Again, more delay.
Or would debtor’s counsel seek and obtain an extension of time to file a plan and budget while waiting for
While
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