The Short Answer
A consent order is a written agreement between you and your mortgage company or HOA — negotiated by your bankruptcy attorney — that gives you a structured way to catch up on missed payments and keep your home while in Chapter 13. It typically comes into play after the lender files a Motion for Relief from Automatic Stay because you've fallen behind during your case. Whether your mortgage payment runs through the Chapter 13 trustee or gets paid directly by you depends on which court district you're in and when you filed. If you receive a Motion for Relief from Stay, contact your attorney immediately — a consent order may be your last opportunity to save your property.
A Consent Order is an agreement between you (usually written up by your bankruptcy lawyer) and the mortgage company or homeowner’s association to allow you to get caught on any Chapter 13 bankruptcy payments so you can keep your house. There are a few situations to be aware of when it comes to getting together a consent order.
Charlotte Office Clients:
If you filed a Chapter 13 bankruptcy before July 1, 2009, your Chapter 13 payment does not include your monthly mortgage payment(s) on your house. You must make your mortgage payments directly to your mortgage company. If you have homeowner association dues (HOA), you must also make your payments directly to your homeowners association.
If you filed a Chapter 13 bankruptcy on or after July 1, 2009, your mortgage payment is included in your Chapter 13 payment to the Trustee.
Greensboro Office Clients:
Your Chapter 13 payment may or may not include your mortgage payment. If you were behind on your mortgage payments when you filed the bankruptcy, then your Chapter 13 payment will include your mortgage payment. If you were not behind on your mortgage payments when you filed the bankruptcy, then you had the option of paying the mortgage payment yourself or including the mortgage payment in the bankruptcy. If you are unsure, check with your attorney. If you have homeowner association dues (HOA), you must make your payments directly to your homeowners association.
Charlotte and Greensboro Office Clients:
If you fall behind on your mortgage or HOA payments, the mortgage company or HOA will file a Motion for Relief from Automatic Stay asking the court for permission to foreclose on your property. If your mortgage company or HOA files a Motion for Relief from Stay it is very important you contact your attorney immediately. In many cases your attorney can work out a Consent Order with the mortgage company or HOA’s attorney that would allow you to catch up on the payments you are behind. Your attorney cannot work out a Consent Order with the mortgage company or HOA’s attorney without your assistance and agreement on the terms. The Consent Order may give you one last chance at keeping your property. Failure to comply with the terms in the Consent Order will result in the mortgage company/ HOA getting relief from the automatic stay and being able to proceed with foreclosure.
Contact us today for more information on what happens if you get behind on your mortgage payments while in bankruptcy.
Key Takeaways
- A consent order is triggered when you fall behind on mortgage or HOA payments during a Chapter 13 case and the lender asks the court for permission to foreclose.
- Charlotte (WDNC) filers who filed on or after July 1, 2009 have mortgage payments included in their Chapter 13 trustee payment, while earlier filers paid the mortgage directly.
- Greensboro (MDNC) filers who were behind on their mortgage at the time of filing have that payment routed through the trustee; those who were current had a choice.
- HOA payments are almost always made directly to the association, regardless of district or filing date.
- Your attorney cannot finalize a consent order without your active participation and agreement to its repayment terms.
- Failing to follow through on a consent order typically results in the lender receiving full relief from the automatic stay and proceeding with foreclosure — there is rarely a second chance.
Attorney Insight
The mistake I see most often is clients waiting too long to call us after they miss a mortgage payment in Chapter 13 — by the time the Motion for Relief from Stay lands in their mailbox, we've already lost negotiating time with the lender's attorney. A consent order is not a guaranteed right; the mortgage company has to agree to it, and they're far more willing to negotiate early than after multiple missed payments have stacked up. I've seen clients lose homes not because they couldn't afford to catch up, but because they were embarrassed to tell us they were struggling and waited until the hearing date was already set. If you're even one payment behind, pick up the phone — that conversation is far easier than the one we'd have to have after a foreclosure sale date is scheduled.
