CH 13 Pro Se: ReOpen, Motion to Dismiss, or NEW CH13 - please help!


G

Grandma

I read many previous msgs and found very helpful info re: Jan posts
from Jarrett Lennon Kaufman. The replies were very informative and I
will utilize the links and help posted in them if I can get advice on
which method may be the best option for me in this scenario:

June 2001: filed BK13 with legal representation
March 2002: I lost my job for inablity to perform as I got seriously
ill with Lead Poisioning. It wasn't until late April that it was
determined the cause and proof supplied for high level lead in my
system. Unemployment was denied as I "was to sick to have worked,
therefore the employer had every right to terminate me."
May 2002: I met with my attorney to request he ask Trustee for
deferment. He phoned the Trustee's office who was out. I was
promised he would follow up, but learned much later that had not
happened. I actually ran into the Trustee who said under those
circumstances, he would have given me some time to get a new job, etc.
July 2002: My case was dismissed due to lack of payments. (I see
no bar with the 180 day rule - just reference to Montana code for
compliance, LBR 1017-1(a) and (b), for the dismissal).
August 2002: I began my new employment.

NOW comes the hard part to follow as it falls within the above listing
of dates:

FEB 7th, 2002: Wells Fargo "sold" back my mortgage to original
mortgagor. I had made my final payment to them on Feb 1st, with a
principal balance owing in the amount of $58,331.88. The BK plan
provided for the arrears separately within the 13 plan payments.

March 4th, 2002: I still had not received any info from new
mortgagor, but went to the bank to make my payment. They had to
"make" a loan number for me in order to accept payment. I continued
to make house payments and subsequently did receive a payment book,
but only received my payment receipts with no monthly statement.

May 2002: I met with bank officer to let him know what had happened
with employment, etc. It was then that I found out that the "arrears"
amount was set up by them into a separate account at the BK Plans
stated interest of 6%, as a ballon payment not due until 2006. I also
inquired as to what appeared to be a MUCH higher principal balance
than what I believed to be the case and was told, "Just keep making
your payments and you'll be just fine". Right after this mtg is when
I went to my attorney to request deferment. I also asked atty to
request payment modification to reduce or zero the amounts to be
provided to the arrears account (currently was $350 monthly to just
that account), and that I would sell the house asap to pay off the
balloon "loan". Of course, none of that was done.

At some point I reviewed all my paperwork and discovered that Wells
Fargo on 2/7/02 had zeroed out my $760 escrow balance. When I phoned
to inquire, I was told that $ went to their "fees". After a few more
attempts to get written docs from the current lender, I finally
marched in and somehow managed to get a rep to print off my account
statement. It shows that my current mortgage began with them on March
1st of 2001 NOT the correct year of 2002! Additionally, the beginning
principal balance shown is $3,330.14 MORE than the pay off made to
Wells Fargo!!! Now mind you, I was still current and in a Chapter 13
at that time!

In Dec 2002 I was given custody of my 2 yr old grandson, which hugely
affected my budget (day care!). Along with other issues, I got behind
on mtg payment, began to actively sell the house. Although I have a
very interested buyer, my price is too much because of the incorrect
bank balances. To avoid foreclosure, I filed Chapter 13 and
immediately was sent a "Motion to Dismiss or Alternative Relief from
Automatic Stay". I'm typing my response to that motion now. But I
now wonder if I should have asked to "Reopen" the CH13 in which the
mtg inaccuracies were committed? That is what I had planned to do
initially, but was told that Montana just doesn't deal with them. If
I use Rule 2004 to demand documentation from each mtg bank, does my
subpoena request go to the court, and then it is up to that judge to
decide if the 2004 goes out? WHO gets the documentation, me or the
court? OR, can I just make motion to dismiss the bank's Proof of
Claim and make them prove their case at a hearing, with me having
mine? Yes, I realize I should get the original attorney back on the
case, but he has already done me an injustice and I can't let that
happen again! I have NO money to spend on legal advice, although I
sincerely appreciate the legal knowledge of true professionals! Any
help? Thank you!
 
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G

Grandma

Good Morning! Well, I didn't get any opinions on my situation as yet
and had a deadline so proceeded in my case as follows. All the
paperwork went out yesterday, so now I get to sit on pins and needles
to see what happens!

Sent to the court:

Motion to Dismiss the CH13 petion I just filed in August, in order to
reopen 2001 case (I listed all the reasons, banks errors, posted my
payments from trustee incorrectly, etc.

Motion(s) for Rule 2004 Examination for each bank (and a separate
Order ready for the judge to hopefully sign!)

Motion to reopen/dismiss order to dismiss (the 2001 case)

Objection to Motion to Dismiss (bank's motion for the recent case)

As the bank's attorney had requested Special Notice, I sent their
office a copy of everything but the blank Orders. . . just the
motions. Sent copies of same to the trustee.

I now have to type a motion (?) to request a hearing date, correct?
Next calendar date available is Sept. 30th. I assume I still have to
be at the scheduled creditor's meeting on the 18th if I don't hear
anything prior.

However, I want to get the figures worked out asap so would be very
open to arbitration. Any suggestions from here? I realize completely
I've left my self wide open to have no protection from foreclosure if
I'm denied any of my motions, but approved my motion to dismiss the
current case. Since I'm absolutely correct that the banks "messed
with my money and loan" while protected by the 2001 bankruptcy plan -
don't have I have other legal remedies? Thanks for anything guys! I
see a lot of help being given in this group - keep up the great work!
 

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