On December 28, 2009 a
Motion,Ex Parte
was filed
involving a dispute between
Ocwen Loan Servicing, Llc,
and
Citibank National Association,
Doe, Jane,
Doe, John,
Greenpoint Mortgage,
Grimes, Richard H,
Hendricks Jewelry Inc,
Hopper, Kelly L,
Hopper, Partick J,
Mers,
Monterey Single Family Neighborhood,
Unknown Spouse,
for Non-Homestead Foreclosure $250,000 or more
in the District Court of Collier County.
Preview
Case 9:09-bk-12702-JPH Doc66 Filed 05/19/10 Page 4 of 7
16. Debtor was concerned that as he had moved out of the property, GMAC was neglecting
the property and not adequately protecting it thus harming its value, which would ensure
harming any recovery beyond the Secured Lender position.
17. While Debtor was working with GMAC to sell property at market value, debtor learned
that a foreclosure process had begun against him and his ex wife by GMAC. Debtor was
surprised by this filing as it was not specifically listed as an option in request for relief of
stay and debtor was working with GMAC to sell the property. The options listed by
GMAC included potential Forbearance Agreement, Loan Modification, Refinance
Agreement, Loss Mitigation Agreement or other Loan Workout
18. Debtor was told by the LMO that the only way to stop the foreclosure process is to sell
the home. As this is an asset of the estate, debtor agreed to list the property on behalf of
the Secured Creditor and told Secured Creditor that any overage would go back to
Debtor’s estate for the Trustee to distribute.
19. As debtor had been discharged, only the first Secured Mortgage remained against the
property and therefore it was believed a short sale would not be required and the house
was listed for a fair comparable market value of $559,000, which sufficiently covered the
Secured Lender, plus costs and possibly a recovery to the estate.
20. On March 22, 2010, Debtor, with GMAC’s approval, accepted an offer for $540,000 that
was subject to close on May 5, 2010.
2
. After approving the sale with Secured Lender, debtor requested GMAC file a motion in
bankruptcy to sell this asset free and clear of all liens and/or credit bid it’s loan to enable
a “Full Payoff” sale.
22, GMAC refused to sell and instructed Discharged Debtor to negotiate with the second and
third lien holders if he wanted to sell the property with free and clear title. As Debtor had
obtained a discharge, he insisted this is not his responsibility, and requested GMAC to
contact the trustee to file a motion in bankruptcy court requesting a 363 like transaction
to sell free and clear of liens transferring the liens to the net cash proceeds.
23. Debtor argued that any excess cash belonged to the trustee / estate and that GMAC had
an obligation to notify the estate of a sale that would generate excess proceeds to the
estate and negotiate a carve out to get a full payout.
24. Debtor therefore requested Secured Lender file a motion in BK court to sell this property
free and clear of all liens using the 363 process.
25. GMAC told discharged debtor to engage counsel if he wanted to get the liens resolved,
otherwise, GMAC would obtain such relief using the foreclosure process.
Document Filed Date
February 29, 2012
Case Filing Date
December 28, 2009
Category
Non-Homestead Foreclosure $250,000 or more
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Case 9:09-bk-12702-JPH Doc66 Filed 05/19/10 Page 4 of 7 16. Debtor was concerned that as he had moved out of the property, GMAC was neglecting the property and not adequately protecting it thus harming its value, which would ensure harming any recovery beyond the Secured Lender position. 17. While Debtor was working with GMAC to sell property at market value, debtor learned that a foreclosure process had begun against him and his ex wife by GMAC. Debtor was surprised by this filing as it was not specifically listed as an option in request for relief of stay and debtor was working with GMAC to sell the property. The options listed by GMAC included potential Forbearance Agreement, Loan Modification, Refinance Agreement, Loss Mitigation Agreement or other Loan Workout 18. Debtor was told by the LMO that the only way to stop the foreclosure process is to sell the home. As this is an asset of the estate, debtor agreed to list the property on behalf of the Secured Creditor and told Secured Creditor that any overage would go back to Debtor’s estate for the Trustee to distribute. 19. As debtor had been discharged, only the first Secured Mortgage remained against the property and therefore it was believed a short sale would not be required and the house was listed for a fair comparable market value of $559,000, which sufficiently covered the Secured Lender, plus costs and possibly a recovery to the estate. 20. On March 22, 2010, Debtor, with GMAC’s approval, accepted an offer for $540,000 that was subject to close on May 5, 2010. 2 . After approving the sale with Secured Lender, debtor requested GMAC file a motion in bankruptcy to sell this asset free and clear of all liens and/or credit bid it’s loan to enable a “Full Payoff” sale. 22, GMAC refused to sell and instructed Discharged Debtor to negotiate with the second and third lien holders if he wanted to sell the property with free and clear title. As Debtor had obtained a discharge, he insisted this is not his responsibility, and requested GMAC to contact the trustee to file a motion in bankruptcy court requesting a 363 like transaction to sell free and clear of liens transferring the liens to the net cash proceeds. 23. Debtor argued that any excess cash belonged to the trustee / estate and that GMAC had an obligation to notify the estate of a sale that would generate excess proceeds to the estate and negotiate a carve out to get a full payout. 24. Debtor therefore requested Secured Lender file a motion in BK court to sell this property free and clear of all liens using the 363 process. 25. GMAC told discharged debtor to engage counsel if he wanted to get the liens resolved, otherwise, GMAC would obtain such relief using the foreclosure process.