The Law Offices of Schneider & Stone, a bankruptcy and business law firm based in Skokie, has successfully removed a Bank of America mortgage from their clients’ home. In an incredible turn of events, the homeowners’ Chapter 13 plan will treat the entire mortgage as unsecured – no different than a common credit card – and the clients will own their home free and clear after successfully completing their case.

The firm’s clients refinanced their property with Bank of America several years ago. The clients signed a standard mortgage giving Bank of America a lien on their house. Bank of America failed to record themortgage with the Recorder of Deeds. The homeowners fell behind on their mortgage payments and filed Chapter 13 bankruptcy to save their home. Chapter 13 does not discharge a mortgage from a debtor’s home; it rolls late payments into the bankruptcy plan and lets the client start making regular payments until the loan is paid off. In this case, Bank of America’s failure to record the mortgage negated their rights.

The bankruptcy filing caused the bank to review the account, at which point it determined that the mortgagehad never been recorded. The bank filed a Motion for Relief from the Automatic Stay in an effort to record themortgage. The Law Offices of Schneider & Stone objected to the Motion and the court denied relief. The court demanded briefs, and on November 28, 2012, after hearing both parties, the court entered an order deeming the bank’s claim as wholly unsecured.

“An unrecorded mortgage does not create a valid secured claim, period,” said bankruptcy attorney and firm partner Ben Schneider. “The fact that the bank tried to record its mortgage post-petition is incredible to me, and based on the facts of this case, the court absolutely made the right decision.”

Since this matter has been resolved, the homeowners’ Chapter 13 plan will now be able to move forward with confirmation. With the mortgage treated as an unsecured claim, successful completion of the plan will mean the homeowners will leave the bankruptcy with a mortgage-free home. The bankruptcy judge has set a status hearing on the matter, scheduled for January 18, 2013.

(Case Number: 12-11838)


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