Announcement

Collapse

Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

Welcome to the Bankruptcy Forum. Bankruptcy (BK) Forum is known as BKForum.com and will be referred to as BKF hereinafter. In order to ensure a long term success of our vibrant community, we have established certain rules and guidelines to which everyone must adhere to. Please take your time to carefully read our rules, before you start to participate in the community.

Things you agree to do:
BKFORUM.com (BKF) users agree to use the search function before starting a new thread. This prevents duplicate discussions and allows for better organized topics.

All BKF users agree to read the sticky posts which may be available at the top of a forum page. These Sticky posts often contain valuable information. They may also outline more rules and guidelines specific for that particular forum, stickies are put in place by that forums moderator(s) or admin(s).

Things you agree not to do:

All BKF users agree not to call people names or write a post simply to make a personal attack, or get a negative reaction; this behavior is not allowed on our forum. The use of derogatory language aimed at anyone will be severely dealt with. There is no need to agree with each other, or to even like each other. However, by signing onto BKForum.com you agree to treat each member and guest with the respect they deserve. No threats or personal attacks will be allowed.

All BKF users agree not to discuss, engage, or encourage any behavior or activity which violates the law. Discussion of drugs, violence, murder, theft, vandalism, fraud or any other issue which could be used to help individuals break the law is strictly forbidden.

All BKF users agree not to "bump" old threads, unless there is a specific benefit to the community by doing so. But in most cases, please don't post in very old threads, instead start new threads.

All BKF users agree not to attempt/use another members account. It is against BKF rules to use any account other than your own. Impersonating another member will result in an immediate ban. It is also against the rules to open more than one account in your own name without permission from a moderator or administrator. If you have been banned for any reason, it is against the rules to open another account. If you were banned temporarily and you are caught using another account you will be banned permanently. Choosing a moniker which is similar in either sound or spelling as a moderator or administrator is strictly forbidden.

All BKF users agree not to private message any moderator, admin, or other member with questions related to their personal circumstances (Questions about the forum or issues with the forum are ok). This forum only works when members share their experience and insights with everyone.

Things you agree not to post:
All BKF users agree not to post any derogatory/racist/or sexist remarks. This includes attachments, links and all information contained within posts, signatures, and avatars, failure to comply with this rule will result in a permanent ban.

All BKF users agree not to post any copyrighted or trademarked information without the express written permission of the owner(s) / proper citation of source.

All BKF users agree not to post any real names, addresses, telephone numbers, email addresses, social security numbers, or any other personal details (their own or other people's).

All BKF users agree not to post links, pictures, attachments, videos, or the like of pornographic content, objectionable material or extreme violence, whether cartoon or real.

All BKF users agree not to use BKF for advertising purposes without a written contract between yourself/company/agent and the administration of BKF. Blatant advertising will result in a ban.

All BKF users agree not to spam the forums. Spam includes but is not limited to posting erroneous, non-relevant-useless, off-topic, or meaningless posts. Spam may also include posts which contain no text, or large areas of blank space between lines. Simply posting emoticons without text is considered spam. BKF is the largest bankruptcy message board and all the content is intended to help other users. Please help us improve the quality of our forum by making sure that your posts are well-worded, spell checked, grammatically correct and syntaxed.

Regarding actions of moderators and administrators:

The forum is no place to air out your opinion or be judgmental of our staff and its capabilities.

All BKF users agree not to abuse or mistreat moderators or administrators. It is against BKF rules to post any information regarding bans or any other action taken by a member of the moderating or administrative team. If you wish to discuss bans or warnings please do so via PM. To place a complaint against a moderator, send a PM to a super moderator. All Moderators are equal, any decision made by a moderator must be adhered to. If a moderator tells you something you do not like, do not go to another moderator looking for a different answer. If you are caught doing this you will be banned. The moderators work as a team and respect the decisions made by their peers and will help enforce them unless an administrator tells them differently.
If you have an issue with how the forum is run, then notify one of our administrator and we will look into the situation. We have in the past and still do appreciate any input that you offer this forum. But critical input and/or judgmental postings towards the staff will result in you getting banned.


Should you find a thread offensive or out of line, then notify a Mod in a PM so they can evaluate the situation and do the action deemed necessary.

All moderators do have active "other" lives outside of the forum and help moderate this forum in their spare time throughout the days and weeks.

If you have a problem with a member or Mod follow the proper channels of reporting it.

BKF reserves the right to delete any posts which contain anti-BKF comments or discussion. Any bashing of moderators or administrators, or any of their discussion or actions will also be deleted, and the responsible posting party(s) will be banned. Any public anti-BKF advertising, communication, or posts on another forum will result in permanent bans as well.

All warnings and bans are decided by individual moderators and administrators. Warnings are preferable to bans however, for serious offenses and repeat abusers bans will go into effect. The length of the bans can vary from several hours to permanent.

All messages posted or sent including through PM are the property of BKforum.com.

All BKF users agree not to advertiser on the forum (Niether by posting, private messaging or using your signature). If you are a company/attorney/legal adviser wishing to advertise on the site or sell a product, you must contact the head administrator and inquire about our advertising packages.

All bankruptcy related opinions expressed on BKForum.com are those of their authors and not necessarily of BKF, its staff or representatives.

You agree not to copy any material/post/content from BKF without written permission from our head administrator .

By posting on this forum you agree to these terms and conditions, including any punishment deemed appropriate by moderators or administrators in the event of an offense.

Administrators/Moderators can change these rules at any time without prior notice.
See more
See less

Why reaffirming a mortgage is a very, very bad idea.

Collapse
This is a sticky topic.
X
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • #46
    Originally posted by despritfreya View Post
    No, the 9th Cir. BAP decision is not binding in Florida which is, I believe, in the 12th Circuit - not sure. . .) but it could influence a court in your district.

    The Bankruptcy Appellate Panel (BAP) is the 1st level of appeal - decisions out of it are binding on the bk courts within the circuit until the Court of Appeals for that circuit renders a ruling changing it.

    Des.
    Thank You so much, Des.!

    Your info is highly appreciated. BTW, I think I located a Circuit-Map and Florida should be 11th Circuit.

    I have to agree that the decision in the 9th circuit is VERY strange. Considering a second mortgage "unsecured" right from the start makes no sense to me. If that's the case, it is hard to make an argument that just the exact same mortgage can't be stripped in a CH 7 because it is all of a sudden considered "secured". And if the court shares the opinion that it is unsecured, wouldn't that mean a second mortgage couldn't foreclose? It simply makes no sense...

    Since i grew up in another country, this entire court-system is still like a foreign language to me - and decisions like that certainly don't make it any easier to understand..

    Once again, THANK YOU so much for your time and efforts!
    Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
    FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
    FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

    Comment


    • #47
      Question, I didn't reaffirm my mortgage and say 2 years down the road I say screw it and leave. I wouldn't be responsible for any deficient remaining balance and would not affect my credit?
      Filed Ch 7 8/12/10
      341 Meeting 9/15/10
      Discharged 11/15/10

      Comment


      • #48
        Originally posted by ironpirate View Post
        Question, I didn't reaffirm my mortgage and say 2 years down the road I say screw it and leave. I wouldn't be responsible for any deficient remaining balance and would not affect my credit?
        You would not be responsible for any remaining balance.
        I think your credit would be affected by the new foreclosure.
        Filed Chapter 7 July 2010
        Attended 341 September 2010
        Discharged November 2010 Closed November 2010

        Comment


        • #49
          Originally posted by keepinitreal View Post
          You would not be responsible for any remaining balance.
          I think your credit would be affected by the new foreclosure.
          That's correct.
          Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
          FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
          FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

          Comment


          • #50
            Does a non reaffirm mortgage show up on your credit report?
            Filed Ch 7 8/12/10
            341 Meeting 9/15/10
            Discharged 11/15/10

            Comment


            • #51
              Originally posted by ironpirate View Post
              Does a non reaffirm mortgage show up on your credit report?
              It shows up as "IIB" and "$0 Balance" - but future payments probably won't be reported.
              Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
              FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
              FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

              Comment


              • #52
                Originally posted by despritfreya View Post
                In response to. . .

                "so let me have my moment of appreciation for your efforts...please. because i DO understand your devotion."

                I do appreciate your comments and thank you whole heartily. But I must admit that it is my boss who has the drive. I just work here. He handled a particular case that started in 1994, went to the 9th Cir. twice and then up to the USSC where he won a reversal of the 9th Cir ruling (we did have special counsel for that part of the case). It took 15 years including additional litigation once it was remanded back down the chain to the bk ct, but he finally got paid, not from the client, from the other side. Never asked a dime from the client.

                Des.
                des... please...one cannot work for and with someone unless they have at least a bit of their mind set. you would not likely have been hired!! LOL.

                and it must be nice to work with someone that actually has principles!! so, it just rubbed off on you bit! LOL!! take the compliment! that and dime will not even buy you a cup of coffee, but it might get you into Heaven!
                8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                Comment


                • #53
                  Originally posted by IBroke View Post
                  Moving itself would cost us $10K and there is no 3,800 sqft.-home on the market for less.
                  I'll sell you my 3,800sqft home for $500K. It's very nice in a very nice neighborhood. It would be a short sale though.

                  Anyhow, with regards to the never reaffirm... I absolutely see NO reason to reaffirm on a home! In Florida, and the 11th Circuit (Georgia, Florida, Alabama), there is NO ride-through with cars and such, so you must reaffirm them if you want to keep them. However, this is not always enforced, as it is really up to the creditor to complain.

                  There was one judge in Texas -- and several others across the Districts -- that always tells debtors, at reaffirmation hearings, that he is "doing them a favor" and "denying your reaffirmation". He does it in all cases.
                  Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                  Status: (Auto) Discharged and Closed! 5/10
                  Visit My BKForum Blog: justbroke's Blog


                  I am not an attorney. Any advice provided is not legal advice.

                  Comment


                  • #54
                    Originally posted by despritfreya View Post
                    To wnguyen, in response to:

                    Some jurisdictions have flat out held that so long as you are current and, based upon state law, if you fail to reaffirm there is nothing the lender can do. This may be the situation in your jurisdiction hence the reason your attny said you do not have to reaffirm.

                    In my jurisdiction state law does not help, but some of the judges are now warning creditors that they will have to answer to the court if they repo solely because the debtor did not reaffirm. I do not think the judge can really do anything but. . .
                    That is exactly what my attorney said, that in some states, state law prohibits a finding of default due to bankrupty and failure to reaffirm, by a note holder on real estate property as long as the note is paid up to date. In a different thread I can't find though, Des, you said there was also a part of the bk law itself that prevented acceleration for up to date notes and you mentioned some clause relating to existing contracts?

                    I ask as someone here asked me if I could remember the clause and I couldn't.

                    Thanks for all your assistance to people here.

                    Comment


                    • #55
                      Originally posted by justbroke View Post
                      I'll sell you my 3,800sqft home for $500K. It's very nice in a very nice neighborhood. It would be a short sale though..


                      OK, the balance would be lower - but be advised that we need financing on the entire $500K - oh, and we wouldn't make any payments on $420K of said balance for the next 27 years...

                      Well, the reaffirmation-question is not going to come up anyway since it will be a CH 13..
                      Filed CH7 9/24/2010, 341 on 10/28/2010, Disch.&Closed: 1/6/2011. FICO EX: 9/2: 672.
                      FICO EQ: pre-filing: 573, After BK Public Record: 568, 10/3: 673.
                      FICO TU: pre-filing: 589, After BK Public Record: 563, 9/2: 706.

                      Comment


                      • #56
                        Originally posted by blockhead View Post
                        That is exactly what my attorney said, that in some states, state law prohibits a finding of default due to bankrupty and failure to reaffirm, by a note holder on real estate property as long as the note is paid up to date. In a different thread I can't find though, Des, you said there was also a part of the bk law itself that prevented acceleration for up to date notes and you mentioned some clause relating to existing contracts? I ask as someone here asked me if I could remember the clause and I couldn't
                        Look at the inter-play between the following Code provisions:

                        1. 362(h) - the stay is lifted if an individual fails to reaffirm or redeem personal (not real) property,

                        2. 524(a)(3) - the discharge acts as an injunction for the collection or enforcement of a debt as it relates to personal liability.

                        3. 524( c) - excepts from the discharge, debt that is properly reaffirmed.

                        4. 524(d) - requires the Court to advise a pro se debtor that a reaffirmation agreement is not required under bk law or non-bk law. Similar disclosures are required of debtor’s counsel.

                        As a result, the only “requirement” to reaffirm relates to the lifting of the stay and the ability of a creditor to repo the personal property if a reaff is not signed. That does not necessarily mean a lender will repo especially if payments are current. But the creditor, unless non-bk law prohibits it or the bk judge thumbs his nose at the Code, has the right to repo and this right only relates to personal property.

                        As it relates to the “acceleration” of the note such is unenforceable under several provision.

                        1. 362(a)(6) as it relates to any action to collect, assess or recover a pre petition claim as well as other provisions under 362(a).

                        2. 365(b)(2) as it relates to executory contracts/unexpired leases (subject to the rejection provisions.)

                        3. 524(a) as it relates to the effect of the discharge injunction since an acceleration is an attempt to collect.

                        4. 524(f) which authorizes voluntary payments to a creditor.


                        Hope this clarifies.

                        Des.

                        Comment


                        • #57
                          Originally posted by despritfreya View Post
                          To wnguyen, in response to:

                          “Does it mean a debtor has to reaffirm his/her vehicle because the Code requires? My case specifically, my lawyer said there was no need to reaffirm (disregard the paperwork sent by the lender) because they won't take the car if the loan is current.”

                          11 USC §521(a)(6) states “in a case under chapter 7. . .in which the debtor is an individual (the debtor) shall not retain possession of personal property (like a car) as to which a creditor has an allowed claim for the purchase price (not a refinance or a title loan type debt) secured. . . by an interest in such personal property unless the debtor, not later than 45 days after the first meeting of creditors. . . either (A) enters into an agreement with the creditor pursuant to 524( C) (reaffirmation agreement). . . or (B) redeems such property from the security interest pursuant to section 722. If the debtor fails to act within the 45-day period. . . the stay. . . is terminated. . .

                          So based upon 521(a)(6) you must reaffirm or redeem and if you do not, the creditor is free to take action. HOWEVER,

                          Some jurisdictions have flat out held that so long as you are current and, based upon state law, if you fail to reaffirm there is nothing the lender can do. This may be the situation in your jurisdiction hence the reason your attny said you do not have to reaffirm.

                          In my jurisdiction state law does not help, but some of the judges are now warning creditors that they will have to answer to the court if they repo solely because the debtor did not reaffirm. I do not think the judge can really do anything but. . .

                          To tyson24, in response to:

                          “I was looking at my petition before I sign it, and notice there is no surrender or reaffirm checked in the statement of Intention for either my residential home or my rental property. My residence is current but my rental property is unpaid for 2 years but not yet in foreclosure. (Chase bank) If I do not surrender (in MN) will I have to pay the foreclosure fees if I do not surrender the home? Am I better to surrender it?”

                          The Code requires a Chapter 7 debtor (individual) to submit a Statement of Intention. If you did not it was most likely an oversight and should be corrected. While the Statement of Intentions may say you are retaining, so long as you do not sign a reaff it does not matter. Keeping or surrendering does not change the effect of a discharge. What does change the effect of the discharge is the signing of an official Reaffirmation Agreement and not rescinding it within the time period allowed. If, in your case, you stop making payments and do not sign a reaff you have effectively surrendered. But. . . please remember that if there is an HOA you must pay all assessments/fees that fall due from your filing date until the mortgage company forecloses.

                          Des.
                          Thanks Des for clearing it out.
                          Filed chapter 7 Jul 13, 2010 341 hearing Aug 12, 2010 Trustee's report of no distribution Aug 20, 2010 Discharged Oct 13, 2010 Closed Oct 28, 2010.

                          Comment


                          • #58
                            Hi Des and Blockhead:

                            That is exactly what my attorney said, that in some states, state law prohibits a finding of default due to bankrupty and failure to reaffirm, by a note holder on real estate property as long as the note is paid up to date. In a different thread I can't find though, Des, you said there was also a part of the bk law itself that prevented acceleration for up to date notes and you mentioned some clause relating to existing contracts? I ask as someone here asked me if I could remember the clause and I couldn't
                            Just need to ask: What is "acceleraton for up to date notes"?

                            thanks for a really informative thread all,

                            Chris
                            Filed 13: 7-19-10 Cvt 7: 8-10-10 Amdts: 9-3-10 341 10-6-10
                            Trustee NoAsset: 10-7-10 Last object: 12-5-10

                            Comment


                            • #59
                              Originally posted by IBroke View Post
                              Sorry when this seems to be a dumb question - but I'm not too familiar with the court-system. So does this decision have a direct influence to CH 13 filings in the Florida Middle District?.
                              Actually, in Florida, a different set of caselaw seems to apply. I can't find the cases at the moment, but several judges in the Middle District opined that the intent of the FRBP (federal rules of bankruptcy procedure) and the Title 11 bankruptcy code, wanted cases to flow quickly. If an individual didn't know the status of a lien strip until 5-6 months into the case, then that would be a bad thing. Especially since the resources used to prosecute the case would be utilized, only to find out that after the lien strip is granted, that the debt limit was exceeded once the debt becomes unsecured.

                              At least that's how the majority of Judges in the Middle District have ruled. The Middle District (MD) was basically the counter to the 9th Circuit. The MD opined that the debt limits should be looked at from the schedules only. That the judge could go beyond the schedules if necessary. However, anything that did not have an immediate liquidation value or needed to be determined through a hearing or through litigation, did not count towards the 109(e) debt limits.
                              Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                              Status: (Auto) Discharged and Closed! 5/10
                              Visit My BKForum Blog: justbroke's Blog


                              I am not an attorney. Any advice provided is not legal advice.

                              Comment


                              • #60
                                Originally posted by justbroke View Post
                                Actually, in Florida, a different set of caselaw seems to apply. I can't find the cases at the moment, but several judges in the Middle District opined that the intent of the FRBP (federal rules of bankruptcy procedure) and the Title 11 bankruptcy code, wanted cases to flow quickly. If an individual didn't know the status of a lien strip until 5-6 months into the case, then that would be a bad thing. Especially since the resources used to prosecute the case would be utilized, only to find out that after the lien strip is granted, that the debt limit was exceeded once the debt becomes unsecured.

                                At least that's how the majority of Judges in the Middle District have ruled. The Middle District (MD) was basically the counter to the 9th Circuit. The MD opined that the debt limits should be looked at from the schedules only. That the judge could go beyond the schedules if necessary. However, anything that did not have an immediate liquidation value or needed to be determined through a hearing or through litigation, did not count towards the 109(e) debt limits.
                                jb....the middle district of florida is most likely one of the most confusing in country....as i know you know....in that district is how many counties???....and each of those counties have different formulas in calulating the final sums in either your means test or procedure.

                                and how is it they can find out after and not before?? it's so nuts.

                                the middle district (MD) was basically the counter to the 9th circuit covers where exactly?.... is it, or does it cover the entire scope of lake, orange counties...etc. all having different criterial for filing. wow....
                                8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                                Comment

                                Unconfigured Ad Widget

                                Collapse
                                Working...
                                X