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Sears IIB, but holding up title on refi


tycin1
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I am approved for a mortgage refi. I have a bk 7 d/c in 2004. I have a closing date set for next week.

I got a call from my mortgage broker saying that Sears is holding up the mortgage title. He asked if I had been sued by Sears. They served me papers, but my bk attorney took care of it and Sears was IIB. The mortgage broker says I may have to pay Sears before I can close? Why if they were IIB? I have the d/c papers showing that Sears was IIB. Will that be enough to clear this up?

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The mortgage broker says I may have to pay Sears before I can close?

That's the worst advice I've heard all week.

Did you contact your BK attorney?

If you are in a rush to close and assuming you are getting cash/out, then perhaps the title company can hold a portion of your proceeds (equivalent to the Sears lien) in escrow.

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I am in rush to close. The escrow is a great idea. I would have never thought of that.

Do you think that they could hold that amount while I get a Motion to Vacate filed? If not, I will have to cancel this and start over? The broker says that the rate is locked until the 13th.

I have called the bk attorney. I am having trouble getting them to call me back. It is a large law office in Fort Worth. I am 40 miles away and working or I would just go up there and camp out.

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From experience, I have found that most BK attorneys don't give a rat's a$$ about you once they get your money and file for you, and most mortgage brokers are going to tell you to do the easiest thing they can to get you to push things through. Its easier to tell you to pay them than to help you work through the correct process of vacating the judgement. Sounds liek when your BK attorney told you not to worry about it he didn't do anything for you in that regard.

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Do you think that they could hold that amount while I get a Motion to Vacate filed?

Don't be afraid to contact the title company yourself. The title company will be providing your new lender a mortgagee's title policy and that policy will have to insure without exception to the Sears lien. Show the title company your bk papers and they will see the petition included the Sears account and then offer to escrow a portion of your proceeds with them for the lien until it is resolved. Again, this is assuming you are getting cash/out sufficient to cover the lien.

I'm not an attorney and this is not legal advice.

As far as Justaguy's comments about mortgage brokers and attorneys - I can't disagree. There are of course, exceptions to the rule here and there.

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After bugging the attorney's office several times this morning, they called me back while I was gone picking my son up from school. It was a girl that works in the office. She said that she pulled my file out of storage, and they did do everything on their end but the attorney from Sears never released this. She said that she is calling them and asking them to do a release of the title search, but doesn't know if it can get done by Tuesday (close date).

I am not paying going to pay this. I will just have to postpone closing or something. The broker told me to pay it and then sue Sears.

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Don't be afraid to contact the title company yourself. The title company will be providing your new lender a mortgagee's title policy and that policy will have to insure without exception to the Sears lien. Show the title company your bk papers and they will see the petition included the Sears account and then offer to escrow a portion of your proceeds with them for the lien until it is resolved. Again, this is assuming you are getting cash/out sufficient to cover the lien.

I'm not an attorney and this is not legal advice.

As far as Justaguy's comments about mortgage brokers and attorneys - I can't disagree. There are of course, exceptions to the rule here and there.

Thanks alot for your advice. I think that I will make a trip down to the title office with bk papers in hand.

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The broker told me to pay it and then sue Sears.

Man, I'm not surprised, again just doing what he thinks is easiest not the right thing to do. Of course its easiest to just pay everybody, but that is why we invented BK, sometimes just paying people is not an option.

BTW, good luck, I hope things work out.

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Well, according to the Texas Property Code, this judgment is cancelled.

§ 52.022. APPLICATION FOR COURT ORDER. (a) The person

who has been discharged from his debts, that person's receiver or

trustee, or any other interested person may apply, on proof of the

discharge, to the court in which the judgment was rendered for an

order discharging and canceling the judgment and judgment lien.

(B) A person may not apply for the order before a year has

elapsed since the bankruptcy discharge.

I think that I may be able to clear this up.

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Well, according to the Texas Property Code, this judgment is cancelled.

§ 52.022. APPLICATION FOR COURT ORDER. (a) The person

who has been discharged from his debts, that person's receiver or

trustee, or any other interested person may apply, on proof of the

discharge, to the court in which the judgment was rendered for an

order discharging and canceling the judgment and judgment lien.

(B) A person may not apply for the order before a year has

elapsed since the bankruptcy discharge.

I think that I may be able to clear this up.

Good job Tycin! Power to the people!

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