New? If Note Is Lost, Mortgage is Unsecure-So is included in CH13

[Social Apocalypse]

I just read about a new twist in the defense of foreclosure. This involves the details of filing Ch 13 bankruptcy.

Normally, the first mortgage is not allowed to be included (YET!!) in a Ch 13. There are some attorneys who are now using the "Produce the Note" argument in Chapter 13's and asking that the debt be included in the bankruptcy since it is unsecured.

Anyone heard of this before??

I'll take that one more step, as in my case: I rescinded both of my loans in May. I have not yet declared Ch 13, and trying to avoid it. BUT IF I DO... ?? If I rescinded the loans (and I have no idea what the status is because the mortgage companies didn't respond). Does that NOT leave me with a tender that I owe, with NO LEIN? Does that tender then not become UNSECURED DEBT???

Interesting question, I think. Hmmmm.

...Wish I could find an attorney. I'm just not smart enough to handle this on my own. If I WAS I wouldn't BE in this position because I WOULDN'T HAVE GOTTEN THESE STUPID LOANS TO BEGIN WITH!

...and the wheels on the bus go round and round.... I think I am going crazy. Cheers!

[Paul Molinaro Esq.]

NO LEGAL ADVICE HERE - JUST GENERAL INFORMATION - ANY SIMILARITIES TO ANYONE'S ACTUAL SITUATION IS JUST ONE HECK OF A COINCIDENCE.

WARNING

While this forum is generally (read as 99% of the time, IMHO) very educational and that is a great thing, people need to be cautious when being fed information that is, and this is putting it in the best light possible, "on the fringes. "

At the risk of being flamed on this forum, I say it again... don't throw common sense to the wind because of desperate situations... no matter how bad the financial situation looks, the time is now to stay calm, do your homework, do your OWN research, and not fall for dubious schemes... and DO NOT PAY ANYONE who even has a hint of being a scam or who makes promises that seem to good to be true.

Also, a note to the moderators... i thought this section is designed for questions to and from attorneys... not for attorney bashing. Unless that has changed.

And now back to your regular programming...

- Paul

[Social Apocalypse]

Thank you very much Mr. M;

I agree, very important to learn, learn, learn. I hope my question to the attorneys was not offensive in some way? Your comment about "bashing" was definitely disconcerting. If I did, I apologize VERY much. I am grateful for the attorneys here and their generous feedback.

I have gained incredible insight from this forum and will continue to do so. I also send others to this forum (My UPS driver came up to my home WITHOUT a delivery so that he could ask me the website address to this forum that I speak so highly of. He delivers my "certified threats" from the mortgage companies, and knows how we suffer. He also knows, that we are not typical loan-ditchers and we are in a bad spot in our lives.)

Common sense does get a little out of reach sometimes when the agony of being hosed to the extent that your entire life and family home is threatened, and your days become a monotonous grind of collection calls and everyone wanting to know answers to questions that I do not know the answers to myself. Being lied to by people that you THOUGHT were allies, causes one to be just a wee bit paranoid.

In any case, thanks again for your guidance, suggestions and time... I know that I am among MANY who appreciate it a LOT.

[Social Apocalypse]

4) Whitley v. Rhodes Financial Services Inc., 177 B.R. 142 (Bankr. D. Mass. 1995)Debtor sought to rescind a loan transaction under TILA. Debtor alleged that a brokerage commission should have been disclosed as a finance charge. The Court agreed and found that avalid rescission had occurred, the mortgage was void and at best, the lender had an unsecured claim. The claim was disallowed because a proof of claim was not filed. (Judge Feeney) <----

6) In re Rodriguez , 278 B.R. 683 (Bankr. D. RI 2002)Debtor sought rescission of mortgage loan citing violations of TILA and Home Owners Equal Protection Act (HOEPA). Court found that debtors did not receive two copies of the notice oftheir right to rescind and therefore, the lender violated TELA. The court also found that aprepayment penalty violated HOEPA. The Court ruled that the loan was rescinded and thebalance due to the lender was reclassified as an unsecured claim subject to discharge in thebankruptcy case. (Judge Votolato)