Four ways bankrupcy could help youWhen do secured creditors try to remove the stay in order to foreclose on your house?
Secured creditors are likely to ask the court to remove the stay if you are not making payments or the collateral is not adequately protected. (To learn more about secured debts, see What Is a Secured Debt?)
Not making payments on a secured debt. Secured creditors often file motions to lift the stay when the debtor is not making payments. Since property used as collateral must be paid for or returned during bankruptcy, the court will normally lift the stay unless the debtor can bring the payments current or show another good reason to deny the motion (for example, the debtor will use one of the available methods for dealing with secured debts in Chapter 7 bankruptcy, or the debtor has provided for payment of the debt in a Chapter 13 repayment plan). For example, if you are behind on your mortgage when you file for Chapter 7 bankruptcy, your mortgage lender is likely to ask the court to lift the stay so it can continue with foreclosure.
(To learn more about secured debts in Chapter 7, see Secured Debt & Property in Chapter 7 Bankruptcy. For more on the repayment plan, see The Chapter 13 Repayment Plan.)
Lack of adequate protection. A secured creditor may also complain that it is not adequately protected. Lack of adequate protection usually means that there is no insurance on the collateral, or it is likely that the debtor will not make future payments.
A creditor must also prove to the court that it has standing. In these cases standing usually boils down to showing that the debtor is actually indebted to the creditor seeking the relief. During the recent mortgage crisis, standing has been a sore subject for the banking industry. Some banks have been unable to prove standing as a subsequent creditor on mortgages that were transferred several times and the original notes are now lost.
Motions by Unsecured Creditors
Sometimes unsecured creditors and other parties seek to lift the automatic stay. The court will often grant the request if the unsecured debt will be excluded from the bankruptcy discharge, like child support obligations, spousal support, or criminal restitution. This is especially true when the debtor has filed a Chapter 7 bankruptcy case. Chapter 13 debtors are often able to repay these non-dischargeable debts over three to five years and remain under the protection of the bankruptcy court.
A landlord may seek relief in order to evict for non-payment of rent. A bankruptcy debtor’s rent obligation is divided on the bankruptcy filing date into pre-bankruptcy and post-bankruptcy debts. Pre-bankruptcy rents are dischargeable, and post-bankruptcy rents are not dischargeable and not subject to the automatic stay. This means that while the automatic stay would prohibit the landlord from collecting on unpaid pre-bankruptcy rent, the landlord may evict if post-bankruptcy rents are not paid.
Can credit repair help you in Montana to achieve financial stability? How can I tell a credit repair scam from a reputable credit counselor?
Answer: There are counselors who can help you with your credit report, and others who take your money but don’t help you. Warning signs for credit repair scams include companies that ask you to pay before providing services. The company may claim that it can guarantee a specific increase in your credit score or get rid of negative credit information in your credit report, even though the information is accurate and current.
Recognizing a credit repair scam
Warning signs for credit repair scams include companies that ask you to pay before providing services. The company may tell you it can guarantee a specific increase in your credit score or get rid of negative credit information in your credit report, even though the information is accurate and current.
If you see ads or receive offers to repair or fix your credit, it could be a warning sign if the company:
Pressures you to pay up-front fees. The company wants you to pay before it provides any services. A simple rule to follow is “Don’t pay upfront.” If the company uses telemarketing such that the federal Telemarketing Sales Rule applies, the credit repair company may not request or receive fees until it gives you a credit report generated more than six months after the promised results that shows the results. Under the federal Credit Repair Organizations Act, credit repair companies can’t request or receive payment until they’ve completed the services they’ve promised. Some companies will structure monthly payment plans to try to avoid this requirement. You should know that all forms of upfront payment before services are completed are illegal.
Promises to remove negative information from your credit report. The company tells you it can get rid of the negative credit information, even if that information is accurate and current. No one can do this.
Requests you dispute accurate information in your credit report. The company advises you to dispute all the information in your credit report, regardless of its accuracy or timeliness.
Refuses or avoids explaining your rights to you. The company doesn’t tell you your rights and what you can do for yourself for free. Disputing errors in your credit reports is a free legal right available to you under the Fair Credit Reporting Act; you don’t need to pay a credit repair organization to do it for you. Also, if you have just signed up for a credit repair service, you have the right to cancel your contract with any credit repair organization for any reason within three business days at no charge to you.
Tells you to not contact credit reporting companies. The company recommends that you don’t contact any of the nationwide credit reporting companies directly.
Credit repair companies are subject to numerous federal laws, including the Credit Repair Organizations Act and often the Telemarketing Sales Rule, both of which forbid credit repair organizations from using deceptive practices and from accepting up-front fees. These laws prohibit many deceptive practices by credit repair organizations. You may have a right to sue a credit repair organization using these laws.
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