Legal Question in Real Estate Law in California

Ca Bankruptcy

After filing bankruptcy chapter 13 can your mortgage company add escrow without checking with the court?


Asked on 7/26/12, 7:26 am

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I don't know what you mean by "add escrow" ....... an escrow is a voluntary arrangement between two (or more) parties to a contract, in which the contract parties engage an independent additional party to "hold the stakes" pending completion of the various parties' duties under the contract. A mortgage company cannot change the terms of your loan nor take any enforcement action while a borrower's properly-filed bankruptcy is pending without obtaining permission from the court. Such permission is often in the form of a "relief from the automatic stay" from the bankruptcy action.

If it seems as though your lender is stiffening the terms of your loan while you are under the protection of the bankruptcy proceeding, you should call this to the attention of your attorney, the bankruptcy trustee, or the judge.

I can see four possibilties here: (1) the lender was not notified about, and/or was not named as a creditor, in the bankruptcy; (2) the lender's action is sufficiently benign that it doesn't fall under the automatic stay; (3) the lender has been to court and obtained relief from the automatic stay and you haven't found that out yet; and (4) the lender has acted illegally.

The case information can be found on line at www.pacer.gov, the public access to court records web site. It is necessary to know the case number or a party's name, and to obtain a password.

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Answered on 7/26/12, 9:28 am


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