What Do You Do Before You Sue?

Notice & Cure Provisions in Home Mortgages – instructions on what to do before you file a suit against your lender.

Notice and Cure Provisions in Home Mortgages – What do you do before you sue?

By Attorney Peter Francis Geraci, J.D.

It depends. Individuals may consider bringing claims against their mortgage lenders under federal statutes such as the Truth in Lending Act, or the Fair Debt Collection Practices Act, and state statutes such as the Illinois Consumer Fraud and Deceptive Business Practices Act.

But, before you sue, what do you do? Read the mortgage! Many have provisions that have to be followed, or your lawsuit will be dismissed. Examples are “notice and cure”, and “mandatory arbitration”.

In Wortman v. Rushmore Loan Mgmt. Servs. LLC, No 19C2860,(N.D.Ill. Oct 16, 2019) plaintiff’s case against their mortgage service for sending them collection notices after bankruptcy discharge was dismissed. Why? Their personal obligation on the mortgage was discharged in Chapter 13, but only the personal obligation to pay the debt, not their obligation to comply with the terms of the mortgage.

In other words, a mortgage does not disappear because of a bankruptcy discharge. A mortgage servicer can send letters about filing a foreclosure suit to take the property back, and file a foreclosure suit.  All that a bankruptcy discharge does is eliminate the obligation of the discharged debtor to pay anything on the debt. It does not eliminate the other rights of a secured creditor, such as foreclosing on real estate, or repossessing a vehicle.

Not only do “liens”, or interests in property, survive discharge, but so do clauses in such lien documents and notes. That means that, if after discharge, a person wants to file a lawsuit against a creditor who still has a lien, they have to comply with those clauses.

What is a “notice and cure” provision? It says “a party who is in default is entitled to notice of the default, and a period of time to cure the default, before the other party may accelerate the contract and demand full payment, or foreclose or repossess”.

What is an “arbitration clause”? It says “if the borrower wants to make any claims against the lender it must do outside of court, in a proceeding involving appointed “arbitrators”.

Some cases hold that these clauses prohibit a lawsuit, unless the borrower first complies with them. Some cases hold that these clauses are not effective in a consumer protection lawsuit. In the Wortman case, the judge dismissed plaintiff’s case under FDCPA because the mortgage survived, and so did the “notice and cure” provision that required the borrower to give notice to the mortgage company before borrower filed suit.

So, what do you do before you sue? Read the document that established the relationship between you and who you want to sue. It may require you to arbitrate instead of go to court, or to give notice of your intent to sue. Those clauses may or may not prevent a suit, depending on what your claim is. But one thing is for sure: liens pass through bankruptcy, and so do the documents creating them, and so does the fine print in them. Bankruptcy only discharges the borrower’s obligation to make payments. If they don’t, the creditor can take action to get their property back.

This can work against mortgage lenders and car owners, but it can work in their favor also. After a discharge in either Chapter 7 or 13, a debtor can file a Chapter 13 to cure a mortgage default, even if the personal liability to pay has been discharged. The U.S. Supreme Court, Johnson v. Home State Bank, 501 U.S. 78 (1991) rule that, after discharge in bankruptcy, a debtor can file a Chapter 13 to cure a mortgage default, even if their personal liability on the mortgage was discharged.

This ability to file a Chapter 13 to cure mortgage default also works for people who are not on title to the property, but only have an inheritance interest. If mom dies without a will, an heir can file a Chapter 13 case to cure mortgage arrears, force the mortgage company to accept payments, and prevent foreclosure.

Thankruptcy

Geraci Law clients love Geraci Law and credit scores so much so that after filing they do not say bankruptcy, they say THANKRUPTCY. 

Thankruptcy

Geraci Law clients love Geraci Law and credit scores so much so that after filing they do not say bankruptcy, they say THANKRUPTCY.

We have over 25 offices in Indiana, Wisconsin and Illinois close to home AND work. Geraci Law staff make the process HASSLE-FREE. The goal is to change a person’s life for the better.

Geraci Law clients get:

  • Client Corner access. A web portal with direct access to case information AND their attorney and Geraci Law team.
  • Same day or next day appointments. Geraci Law is always available to handle your case.
  • Communication – Geraci Law does NOT have voicemail. You can call us, text us or message us and you’ll get a FAST response.

Check out the new Thankruptcy video below:

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 25,000 5-star reviews 5starsince November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

Reviews from Geraci Law Clients!

Reviews from PFG Geraci Law Clients 

Below are REAL reviews from Geraci Law clients.

For Attorney Sharon Hunt, “Finding yourself in a position where you’re 25 years old, in over your head in CC debt and recently unemployed was, needless to say, stressful and embarrassing. When I started considering my options-bankruptcy felt scary and like an option that could ruin my future. When I made the decision to move forward with this option. I looked into who I felt would make me feel taken care of. Peter Geraci and the firm represented themselves in such a way that I felt comfortable going in for my consultation and after speaking with Attorney Jonathan Parker I knew I was in good hands. He was kind, professional and direct. He made sure I understood all of the options and the process. I’m currently waiting to have my meeting of creditors and feel confident that Geraci Law has done everything to make this go as smoothly as possible and all taken care of.  Thank you Geraci Law & team!”

For Attorney Joseph Blaha, “Very helpful very informative 5 stars to GERACI and 5 stars to our attorney JOSEPH BLAHA he truly is one of kind. He answered all of my questions to the up most level of professionalism. Even with my children present, he was patience understanding of me and my wife situation. Even when my wife left to go get our other daughter. He explained all the forums to her as well. So if you are ever in need of help with a chapter 7 or 13 I recommend Joseph Blaha at Geraci!”

For Attorney Mark Levine, “Great staff. Mark Levine was knowledgeable and helpful every step of the way, and helped us navigate a number of potential roadblocks with ease. If you’re buried in debt and need help, we would definitely recommend consulting Geraci Law.”

For Attorney Lizette Villegas, “I had a great experience with Geraci Law and attorney Liz. I was extremely nervous and had a feeling of shame coming into the office, but after meeting with Liz I felt so much better, relieved, and felt back to normal. Liz also took away that feeling of embarrassment and shame. I am very excited for this new start that my attorney and Geraci Law have given me. Liz made this so much easier!”

For Attorney Shera Bucchianeri, “Our experience with frank has been great he was very helpful with the beginning of our Bankruptcy process now we have been helped by Shera Bucchianeri and omg she is fantastic thank you so much for your help. ”

For Attorney Scott Greenwood, “I have been through the process of a bankruptcy in the pass with another firm, was not a good outcome! Upon accessing Geraci Law Firm I had the impression of a very professional firm. Things were explained and very clear as the next steps in the process. This made me feel very comfortable and ensured that I had come to the right place! Scott Greenwood was very professional and nice during each of my visits to the firm. Once again thank for making feel at ease during a stressful time!”

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews 5starsince November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

Can I file another Chapter 13 after dismissal, or after Chapter 7 Discharge?

When you filed Chapter 13, you had a plan, based on your income, expenses, and debts, which you had on the day you filed! But things can change. What do you do when you are in a Chapter 13 and change jobs, lose income, or get more debt or expenses?

Bankruptcy.jpgWhen you filed Chapter 13, you had a plan, based on your income, expenses, and debts, which you had on the day you filed!  But things can change. What do you do when you are in a Chapter 13 and change jobs, lose income, or get more debt or expenses?  What do you do if your vehicle dies during Chapter 13? What do you do if you retire during your Chapter13? Can I file Chapter 13 after I filed Chapter 7?

Geraci Law is here to figure it out. If your Chapter 13 is not working for you, can you file another Chapter 13?  Geraci Law files Chapter 13 cases for many people who went to other lawyers and their Chapter 13 is dismissed, and for lots of our own clients, too. Geraci Law also files Chapter 13 cases when you have filed a Chapter 7 before.  The rules for filing Chapter 13 after a dismissed Chapter 13 are complex.  The rules for filing Chapter 13 after a discharge in Chapter are also complex.  So dial 1-800-call-pfg for a free phone mini-consultation.

 What will I need in order to refile a second Chapter 13? The big 3 are…..

  1. Regular Income. No Chapter 13 without a job unless you have regular income, like retirement. Wait until you are working again and receive your first paystubs.
  2. Filed income tax returns. You must have last 4 years state and federal tax returns in hand.
  3. New debts Make a list WITH the name, address and account number. And copies of bills.

If your Chapter 13 was dismissed – call Geraci Law. We answer the phone and help thousands of people with issues ranging from repossession to parking tickets! Geraci Law will review options on refiling a case that fits your current financial situation. You can include the debt in your previous case and any additional debt you may have incurred since filing.

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews since November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

Being Sued? Call Geraci Law Today!

What is a lawsuit?   It’s a bill collector asking a court for a JUDGMENT!  Why do creditors hire lawyers to get a JUDGMENT?  lawsuitBecause then they can use the Court to COLLECT!!  First they hire the sheriff to serve you with the complaint.  If you don’t have a defense, they can then get their JUDGMENT!

How do creditors COLLECT?  First, they may record the judgment with the County you live in or have property in.  Then it becomes a “lien” or “right to collect when sold”.  That means they can sell your real estate, or personal property!!!  Serious!

Next, they can ask your bank or employer to turn over your money or paycheck!  Whooops!

How can you stop a lawsuit or judgment?  Pay them!  If you can’t pay them, get a free phone mini-consultation with Geraci Law.  Chapter 7 can eliminate debt. Chapter 13 can consolidate it into an affordable payment plan. Geraci Law will review your BEST option to stop the creditor action. We know you might be nervous or embarrassed. Don’t be. Geraci Law is here to help. We do not judge – we STOP judgments from creditors.

Hwoman happyere’s an example showing how Geraci Law can help…“I came in to this office worried and scared because of the amount of debt I was in and the possibility of law suits consuming my life. When I arrived I was greeted and immediately felt welcomed. I was a bit unprepared and nervous but Geraci Law made it a simple and smooth process! They were very understanding and did not judge or condemn me for what was going on. Geraci Law simply offered words of encouragement and explained my options to help! I’m so glad I came!!

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews 5starsince November 2016!

Read ALL ABOUT DEBT RELIEF at www.bankruptcybookbypeterfrancisgeraci.com.

Geraci Law Reverses Sheriff Sale

When you’re unable to make your payments on a house, a mortgage company may get a judgment of foreclosure. Then they pay the County Sheriff, or an appointed officer, to sell it at an auction. If you failed to stop a foreclosure suit, interfacing Sheriff Sale, read this.

When you’re unable to make your payments on a house, a mortgage company may get a judgment of foreclosure.  Then they pay the County Sheriff, or an appointed officer, to sell it at an auction.  If you failed to stop a foreclosure suit, interfacing Sheriff Sale, read this.

Here are some rules about stopping foreclosure:  File chapter 13 House2

  1. Before your mortgage company files a foreclosure suit
  2. Before a foreclosure suit goes to judgment
  3. Before a judgment proceeds to a Sheriff sale

In other words call Geraci law soon as you get behind, because the longer you wait, the more the mortgage company will cost you, and the harder it is. What if your house is actually been sold at a Sheriff sale?

Before coming to Geraci Law, a single mom filed a Chapter 13 with another law firm.  That case was dismissed, and that other so-called law firm told her there was nothing she could do. She was devastated, but her aunt told her to call Geraci Law. She inherited the house from her mother with her aunt on title.

Geraci Law filed a counter attack in the State Chancery Court. Before the sheriff sale, there are several court appearances and notices that must be “serviced.” She never lived at the residence that the mortgage company claimed to have served her at.

friends huggingGeraci Law was able to prove the client was not property served with the foreclosure notice. The judge sided with Geraci Law and the sheriff sale was REVERSED. The woman called for a group hug in the court room ecstatic by the work of Geraci Law. Then, Geraci Law filed a 2nd Chapter 13 to repay the past due mortgage and force them to take her future payments.

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews 5starsince November 2016!  Read more at www.bankruptcybookbypeterfrancisgeraci.com.

Stop Foreclosure – Can Geraci Law Help You?

Do you want to keep your home? Can you afford the home but not the arrears in a lump sum? Geraci Law helps thousands of people save their homes.

Do you want to keep your home? Can you afford the home but not the arrears in a lump sum? Geraci Law helps thousands of people save their homes.

House

Can Geraci Law save my house?

We’ve helped thousands with a Chapter 13 interest free repayment plan that spreads your mortgage arrears over a 3-5 year plan. At the end of the bankruptcy, you’ll discharge any unpaid debt like credit cards, medical and be current with your mortgage.

“What about “loan modification”?   Don’t fall for scams.  Don’t pay any money for help.  Deal direct with your lender.  When you do, expect

o   they won’t reduce the amount you owe and rarely the interest

o   your term will go from 15 to 30 years, you will never own the place

o   it is usually a scam so you don’t pay while applying, and then they foreclosure

What do I do?  If you are behind in your mortgage, call Geraci Law to

o   eliminate or consolidate OTHER debt so you can pay your mortgage

o   stop foreclosure and pay past due amounts over 3 years or more

Loan modification scams:   just search on “Legal Helpers Debt Resolution” or “Morgan Drexen”.  Don’t be scammed! Call Geraci Law. Never send money to an internet scheme.

How does Chapter 13 help with mortgage foreclosure or past due mortgage payments?

  1. It forces your mortgage company to accept your payments going forward
  2. If forces your mortgage company to accept payments on arrears
  3. It consolidates your vehicles and debts so your mortgage gets paid first

How does Chapter 7 help with mortgage foreclosure?  It could eliminate your other debt to free up your budget to pay the mortgage.

Is it too late to save my house? Ask Geraci Law!  Geraci Law can file a case in as little as ONE day BUT you shouldn’t wait until the last minute. Sooner is better than later!

Dial 1-800-CALL-PFG for a free phone mini-consultation, or make an appointment online 24/7 at www.infotapes.com.  Bankruptcy laws are in place to help you.  Who knows bankruptcy like Geraci Law?  Geraci Law has 20,000 5-star reviews 5starsince November 2016!  Read more at www.bankruptcybookbypeterfrancisgeraci.com.