Mortgage Company seeking a relief of stay from chapter 13 bankruptcy after 3 years

[newtolegal77]

My parents filed for chapter 13 bankruptcy in aug. of 2003. Their repayment plan included all back takes owed which were 2000,2001,2002 and 2003 and the delinquent payments owed to the mortgage company and their current mortgage payment. At no time have they missed any payments as the money had been taking directly from my dad's check and sent to the trustee. My dad's plan was to repay back his creditors $68,000 , he currently paid a total of $72,000 plus into his plan and it is set to be audited soon. They recently recieved a notice from their mortgage company informing them of their intent to ask for a stay of relief from the bankruptcy in order to foreclose on my parents home due to nonpayment of the 2003 taxes which their mortgage company Greentree Financial is claiming to have paid. Needless to say after bringing home $45 checks and blank checkstubs for the past 3 years my father is stressed which has cause him to be hospitalized.

My parents contacted our county treasuer who stated the 2003 taxes had been paid by the trustee last year but they also stated they recieved a check in october which had been applied to my parents account.

The taxes are current on the property as my parents were responsible for paying the 2004, 2005 and so on taxes.

My question is, how can the mortgage company foreclose when they have recieve all delinquent payments,the mortage is current and was paid via the chpater 13 trustee on nov.1 and the delinquent taxes were paid through the bankruptcy? Can my parents sue if they lose their house do to any mistakes caused by their attorney or the bankruptcy trustee?

Any information you can provide will be appericated.

[Just Breath]

Does the current mortgage payment amount include escrow for taxes and insurance? Is the current mortgage payment included in the Chapter 13 and paid by the Trustee, or does the Ch 13 plan call for direct payments by your parents to the mortgage on the current house payments, with only the past due balance rolled into the plan.

If the bankruptcy court approved the Chapter 13 plan, and the plan included the past due mortgage balance and addressed maintenance of current payments, either directly or through the plan, and then also addressed the past due and future tax payments, I do not believe the court will lift the stay to allow them to foreclose provided your parents and lived up to their part of the court's order confirming the plan.

Since the mortgage company sent a notice to your parents rather than just proceeding with a motion to lift the stay, my guess is that they have realized their "goof" in paying the 2003 taxes before realizing that the confirmation order included 2003 taxes to be paid by the trustee out of the bankruptcy estate. They may simply be seeking a modification to the plan to include repayment of the tax "overpayment" by them. Did they send a copy of this notice to your parents' bankruptcy attorney? Your parents need to talk to their attorney and let him/her respond to the mortgage company to resolve the discrepancy.

Your parents SHOULD NOT IGNORE the notice. They should immediately contact their bankruptcy attorney or at least place a call to the Chapter 13 trustee who may be able to act on the notice on behalf of the Ch 13 estate.

[newtolegal77]

thanks for the response,
The current mortgage payments are paid through the bankruptcy plan by the trustee as was the 2003 taxes. My parents had to pay the 2004,2005,2006 taxes directly to our city which they have done. The taxes are current. My parents contacted their attorney immediately when they got notice and their attorney stated he recieved a copy as well and would write a response to it.

[Just Breath]

So, apparently the mortgage company is not suppose to hold any escrow for payment of future taxes. Consequently, they are "out" the money they paid for the 2003 taxes that had already been paid by the Ch 13 trustee. So, as I said, I'm sure they simply want to be repaid. Your attorney should be able to work it out with them.