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

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  • #61
    Hi Des,

    You are very knowledgeable and experienced and I have a question for you.

    Reading your posts has been very gratifying and educational....thanks

    After reading posts on this thread, I am more concerned than I was before. I have decided not to reaffirm my mtg. I am also beginning to consider "walking away" from my home. Perhaps 1 or 2 yrs down the road after all ducks are in a row. Not getting any younger and mowing a huge lawn gets harder and harder. Winters here are also harsh.

    My atty was insisting that a 5yr old appraisal giving me $30,000 equity was valid, even tho the sr partner had agreed that it had probably dropped in value, and promised me they would "try" to do a comparison.

    I was in shock that they did not really do a comparison, but chose to stay with this overblown appraisal.

    I got a new bona fide appraisal from an indisputable appraiser, who teaches other appraisers, dropping my equity down to $977. It was only this new appraisal which gave me the confidence to convert from a 13 to a 7. Atty had me sign a bunch of papers and promised that now, with the new appraisal, I had an $11,000 wild card to apply anywhere I like. (Didn't really need it as my Assets totaled $12,226). But it was a relief to me (just in case) I do have some furniture (4 or 5 pieces) which might be classified as antiques.

    I was in shock when 15 days later, my atty filed Scheduels based on the old appraisal. It was a nightmarish struggle to get the atty to file Amended Schedules, but I persisted. The corrected Schedules were posted on PACER. Chapter 7, 341 Hearing was basically uneventful and Trustee even discussed the new appraisal showing $977 equity.

    Next day, the Trustee's report is based on the old 2005 Appraisal, even tho he discussed the new $977 equity with me. His report shows $69k Assets....$28,138 Exemptions. Amended Exemptions should have reflected $7,138 taking away the max exemption of $21,625

    No way could my Assets = $69k

    When queried, my atty says I do not need to understand the numbers. that my case will be discharged. That it is not a good idea to question a "successful verdict". This is all in my posting "Strange Attorney Actions" tho I don't want to make you read all of that.

    However, my question is this: Hypothetical of course. What if down the road I find it necessary to File a Chapter 13 (don't really expect to, but another scenario could someday come up).......Can these incorrect figures in the Trustee's report come back to haunt me?

    I have been considering contacting the Trustee's office to point out that the numbers in his report do not match the Amendments recorded on PACER. This will surely anger my atty. Should I just shut up and be grateful that it is deemed a No Asset No Distribution, and not worry about the incorrect numbers?

    Any input you can give me will be most appreciated Des,

    Thanks,

    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


    • #62
      Originally posted by ladycee View Post
      the Trustee's report is based on the old 2005 Appraisal, even tho he discussed the new $977 equity with me. His report shows $69k Assets....$28,138 Exemptions. Amended Exemptions should have reflected $7,138 taking away the max exemption of $21,625

      No way could my Assets = $69k

      When queried, my atty says I do not need to understand the numbers. that my case will be discharged.

      However, my question is this: What if down the road I find it necessary to File a Chapter 13. Can these incorrect figures in the Trustee's report come back to haunt me?

      I have been considering contacting the Trustee's office to point out that the numbers in his report do not match the Amendments recorded on PACER. No Asset No Distribution, and not worry about the incorrect numbers?

      Any input you can give me will be most appreciated Des,

      Thanks,

      Chris
      Chris,

      I did not follow your earlier thread. Sorry. But, all I needed to see of your above question was that your Trustee filed a report of no distribution. That report shows numbers associated with the amount of assets and the and the amount of debts and that the Trustee is abandoning everything. Your attny is not off the mark. There are mistakes by the Trustee but such is really no big deal.

      In answer to your question. No, the dollars listed by the Trustee have no impact on any future bk you may need to file. No, it does not matter that the Trustee did not use the amendments you did. No, you do not need to get the Trustee to change anything. The fact is that the Trustee has abandoned and closed his file. Once abandoned always abandoned. You do not want the file reopened by the Trustee. The fact that you did the amendments and have supporting documentation for those amendments is all you need. Further, "down the road", even your current values will be outdated.

      The mistakes by the Trustee would have been an issue if he was trying to liquidate an asset that, due to the higher but mistaken value, was deemed worth in excess of some allowed exemption. Since it appears he has abandoned all assets this is not an issue.

      Hope this helps.

      Des.

      Comment


      • #63
        Hi Des,

        It certainly does help. It saves me from making a fool of myself fighting an unecessary battle. I am really grateful for the simple and clear explanation you give. Once abandoned, always abandoned......YAY! and it helps a great deal to realize that the numbers will be outdated if anything pops up...........

        What a relief!

        THANKS


        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


        • #64
          hi all, i converted my case to chapter 7 last month due to a big decrease in income. my case is like this, i'm 3 months behind on my mortgage and i just got my loan mod docs. my mod is very similar to others except on the 7th year the rate will be 4% and will remain at that for the rest of the term. the only problem is, the bank is requiring me to get court approval before the mod is clomplete. my attorney talked to the trustee today and she said that that would not be a smart move to have the court approval and my attorney agreed with her. i'm not upside down on my house, i still have about $50k in equity even in this housing crisis. my first question is, does court approval means that i have reaffirm the mortgage? second, my attorney seems to be concern about his liability if he represent me if indeed the court approval the bank wants is reaffirmation, i thought attorney suppose to do what's best for the client? my Wife and I both want to keep the house. third, did anyone of you needed court approval to get the loan modify? Please help, my 341 meeting is this monday. Plus i like the idea of reaffirm the house, so that we will at least have something good on our credit. even if in the future something happen where we can afford the low mortgage payment, we can sell the house and payoff the mortgage. is it upto us to push the reaffirmation if the trustee and my attorney don't want to do it?

          Comment


          • #65
            QUOTE=mrslick;471739]the bank is requiring me to get court approval before the mod is clomplete. my attorney talked to the trustee today and she said that that would not be a smart move to have the court approval and my attorney agreed with her. . . does court approval means that i have reaffirm the mortgage? second, my attorney seems to be concern about his liability if he represent me if indeed the court approval the bank wants is reaffirmation, i thought attorney suppose to do what's best for the client?. . .third, did anyone of you needed court approval to get the loan modify?. . . Plus i like the idea of reaffirm the house, so that we will at least have something good on our credit. even if in the future something happen where we can afford the low mortgage payment, we can sell the house and payoff the mortgage. is it upto us to push the reaffirmation if the trustee and my attorney don't want to do it?[/QUOTE]

            1. Lenders are requiring Court approval more and more.

            2. A “Motion to Approve the Modification of a Residential Mortgage” is not the same as a Reaffirmation Agreement. Reaffirmation Agreements have very specific disclosure requirements which are not in the loan modification documents. In fact, if you review your loan modification documents, someplace you will find either a “Bankruptcy Disclosure Statement” or language that if you are in bk the lender agrees that its sole remedy upon default is to recover its property. Look for it. . . it’s in there.

            3. I understand your attorney’s concerns however, (and print out this response) tell him that he can protect himself by doing the following: a) In the body of the Motion to Approve he clearly indicates that the Motion is not to be deemed a Reaffirmation Agreement and that it is understood by all parties that should there be a default under the terms of the Modification Agreement, lender’s remedy is solely “in rem” and it shall look to its collateral only; b)In the Order Approving the Motion the attorney should have similar language.

            When I first came across this issue I too was concerned that the Court approval would be considered a Reaffirmation Agreement. Once I figured a way around it the concern went away. In fact, I believe that for so long as I am the “attorney of record”, I have greater exposure (mal-practice wise) if I do not file the Motion and, in the end, my client cannot modify the loan as a result.

            Lastly, and I am sure you understand my position by reading my original post in this thread:

            Reaffirming is a mistake if you live in a State that does not have an anti deficiency statute.

            You have equity today, but tomorrow, who knows. To me, and this is my “legal” opinion, the risk of future financial ruin is too great and, as a result, reaffirming is a bad idea.

            Des.

            Comment


            • #66
              Des,
              thank you for your answer. i emailled your response and my reasoning of why we will reaffirm if we have to. here's the email i sent, sorry it's a lengthy one:
              After we spoke yesterday, i called BofA and i was told that the loan
              modification docs is not reaffirmation. I joined BKForum.com after we first
              filed and i'll be honest with you, you may find this site very handy when you
              come across a case like mine. Below is the question i (mrslick) asked in the
              forum and you'll see one answer from an attorney who does not support
              reaffirmation, but his answer will get us through this. Base on what he/she said
              it seems like you'll have to write the letter and bring it with you on Monday so
              that you, Denise and I, and the Trustee can sign it. We really need this
              modification to move forward with our lives, without it we may lose our home and
              from day one we expressed to you how we don't want to lose the house.
              to be honest, Denise and I would reaffirm the mortgage a million times before we
              lose this modification. if you think about it there's a VERY SMALL chance we
              may end up liable for any unpaid balance if indeed we can afford to keep the
              house in the future. there's a BIG % of why we will not lose the house in the
              future if we have to reaffirm.

              1) even in this housing crisis the house is assessed around $365k and with the
              modification the balance will be $326k.

              2) even if one of us lose our job the other one will be able to at least pay the
              mortgage and put food on the table.
              3) if both of us lose our jobs around the same time, modifying our loan will
              allow us to save some money (within 4-6 month) for rainy days while we look for
              another job.
              4) If both of us lose jobs, we'll be able to collect unemployment benefits and
              that will be enough to get us through for at least 6 months after we use the
              emergency funds.
              5) if after we run out of options, we will simply put the house for sale and we
              will still walkout with a little bit of money after paying off the mortgage and
              the buyer's real estate agent. i would list the house myself.

              so i think the new game plan going to Monday's meeting should be like this.
              since the loan mod doc does not mention reaffirmation on any of the 3 pages, we
              should not treat it as such. Reaffirmation requires specific languages and
              special forms. BofA bankruptcy department told me that the loan mod doc is not
              reaffirming the debt (not that i trust them) but the attorney's response to my
              question below support that. Please, try to find the time to get that letter
              together before Monday and when you finished it you can email it to me and/or
              the trustee so that she'll have some time to review it.

              He called me right away which he usually pretty good at getting back to me. right of the bat he told me that he can't go by with what someone wrote in a forum. he said that loan modification is pretty much the same as reaffirming the loan. he admitted he has not done a reaffirmation before and since the trustee told him that would not be a good idea and he would have to agree with the Trustee. He said that the Trustee does not have any power to approve the modification, we will have to go in front of a Judge. so he wants me to ask the bank to wait after the case is discharge to do the modification. I don't want to do that because i know too many people who have been trying to modify their loans for over 1 year and they're still going at it.
              Des, what's your experience on getting court approval? do we really have to go in front of a Judge if yes what are steps to get the process going. my lawyer said that he may have to refer to another attorney. i don't want to keep money to the attorneys if i don't have to, i've already paid him over $4k between ch. 13 and converting to ch.7.

              Comment


              • #67
                In response to:

                "Des, what's your experience on getting court approval? do we really have to go in front of a Judge if yes what are steps to get the process going. my lawyer said that he may have to refer to another attorney. i don't want to keep money to the attorneys if i don't have to, i've already paid him over $4k between ch. 13 and converting to ch.7. "

                I have filed about a half dozen of these Motions. All were "approved". More or less it's a formality. I am trying to think of a way to get you a copy of the one I filed this past week. The problem I have is that I will lose my anonymity in doing so. Maybe I can figure a way to cut and paste it and then send it to you by PM but I would have to wait until I am at the office. Can we do attachments? Do you know?

                Des.

                Comment


                • #68
                  Des,
                  i'm not sure if you can do an attachment on this, here's my personal email tes_999@yahoo.com

                  Comment


                  • #69
                    Originally posted by df04527 View Post
                    Just a quick comment that sometimes you don't have a choice either. In our case - the one filing is co-signer on the auto. If co-signer doesn't re-affirm -- it takes both out.... sigh.

                    I so wish there was a way out of that because the vehicle is way upside down to the tune of about 9-10k! (Have I mentioned I hate the auto industry?)....
                    But we don't have a choice...........


                    Question: am I to understand that if only one spouse files bk and does not reaffirm the mortgage for which both signed, that the non filing spouse is 'off the hook' too ??? Curious in FL....

                    Comment


                    • #70
                      Originally posted by mrslick View Post
                      He called me right away which he usually pretty good at getting back to me. right of the bat he told me that he can't go by with what someone wrote in a forum. he said that loan modification is pretty much the same as reaffirming the loan. he admitted he has not done a reaffirmation before and since the trustee told him that would not be a good idea and he would have to agree with the Trustee.
                      It's not the same in any jurisdiction. As a matter of fact, my "modification" read exactly that it was NOT a reaffirmation of debt. The problem is that a "reaffirmation" has very very very very very very specific language in it. A modification can be a short as ONE sheet of paper. A reaffirmation, with the new required cover sheets, is over 9 pages long on average.

                      Also, the lender can't do a "back door" reaffirmation by shoving a "modification" in front of you to sign. A modification is a totally different document. A modification does not reaffirm a debt (period). Now, on the other hand, a reaffirmation can modify the underlying terms of the debt! You just need to make sure which one you're dealing with.

                      I just went through this in April and my creditor (bank) was VERY VERY cautious NOT to call the modification a reaffirmation. They can get into serious stay violation issues, with sanctions, for attempting a back-door reaffirmation.

                      Originally posted by OHBOY View Post
                      Question: am I to understand that if only one spouse files bk and does not reaffirm the mortgage for which both signed, that the non filing spouse is 'off the hook' too ??? Curious in FL....
                      Sorry, I just re-read that you wrote that both "signed" the mortgage. If this was "community" property and you're talking about a "community" creditor, then the discharge stays the collection for the community debt on the community property.

                      There is some argument as to just what justifies "community" property in a equitable distribution State. I would make sure I had competent legal advice if you have a mix of debts that are joint and individual between the debtor and non-debtor spouse.
                      Last edited by justbroke; 11-11-2010, 08:04 PM.
                      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


                      • #71
                        To Mrslick,

                        I have posted the sample Motion to the forum called "Sample Forms/Letters".

                        Des.

                        Comment


                        • #72
                          Des,
                          Thank you.

                          Comment


                          • #73
                            In order to protect against a second lender suing if we can't maintain payments on a property after discharge, is it better to check "surrender" of the property in the bankruptcy petition? And if so, will the bank automatically move to take back the property or will they not do so if we continue to make payments?

                            Comment


                            • #74
                              Des, i want to clarify re; above stated respond:"Keeping or surrendering does not change the effect of a discharge"
                              i am converting to ch7 from ch13, still working with lender on keeping the condo, i am 5 month behind and HAMP was denied but i can re apply again, as i my income is not stable. my attrn told me if i surrender the condo within ch 7 i wont be responsible for anything related to this condo, if i keep the condo and later, being not able to keep it will go to foreclosure i might be respobsible for 2nd morgt,as it's outside of bk. i am in WA. is it correct?
                              also i was under impresssion that in order to be discharged ch7 i either surrender my home or get current on my mortgage? is it correct?
                              and different questions:
                              if i can't offord making motg payment is it best to do foreclosure within ch7 or outside? i 'd like to stay in the house as long as possibe.
                              i am 5 mo behind on mortg, but can get another mod(told by lender) which may help. and lastly, if i to surrender my condo within ch7, would be be able to start another mod after discharge? i mean legally.... thanks,
                              mortg on my condo 174k ,2nd morg 63k .value per morgt 201k. thanks again. Mila

                              Comment


                              • #75
                                Originally posted by freeseattle View Post
                                Des, i want to clarify re; above stated respond:"Keeping or surrendering does not change the effect of a discharge"
                                The only thing that effects a discharge is the signing of a Reaffirmation Agreement. If you reaffirm you reobligate yourself to pay the debt.


                                Originally posted by freeseattle View Post
                                I am converting to ch7 from ch13, still working with lender on keeping the condo, i am 5 month behind and HAMP was denied but i can re apply again. . . My attrn told me if i surrender the condo within ch 7 i wont be responsible for anything related to this condo, if i keep the condo and later, being not able to keep it will go to foreclosure i might be respobsible for 2nd morgt,as it's outside of bk. . .
                                Partially correct and I suspect you misunderstood the attny.

                                1. Regardless of what you do with the condo, you will be responsible for all HOA fees/assessments that come due between the day you convert to a Chapter 7 and the day the property is lost to a foreclosure or otherwise changes hands. There is one exception to this and that is if your CC&R's do not create a personal obligation for delinquent dues and the only remedy for the HOA is a lien upon the property. This exception is extremely rare.

                                2. Regardless of your Statement of Intention, if you do not sign an official Reaffirmation Agreement (Do Not Sign) and you are unable to work it out with the 1st mortgage holder, the 1st mortgage holder can foreclose. Since you did not sign a Reaffirmation Agreement you could not be sued for money. Indicating a "surrender" or a "retain and pay" on the Statement of Intentions does not change this.

                                3. Regardless of your Statement of Intention, if you do not "service" the 2nd mortgage the 2nd would have the right to foreclose. However, since the 2nd would have to deal with the 1st mortgage, its decision to foreclose on its collateral will turn on the amount of equity in the property after payment of the 1st. You have indicated that there could be $27K in equity after the 1st. If you do not service the 2nd, it might foreclose. Again, if you sign a Reaffirmation Agreement for the 2nd (Do Not Sign) then the 2nd could opt to sue you for money and waive its interest in the collateral or it could foreclose, pay off the 1st, put $27K in its pocket and sue you for the balance due. As it sits right now, regardless of what your Statement of Intention says and so long as you do not sign a Reaffirmation Agreement, the only recourse the 2nd has is to foreclose as the lien passes through the bk unaffected.

                                Originally posted by freeseattle View Post
                                I was under impresssion that in order to be discharged ch7 i either surrender my home or get current on my mortgage? is it correct?
                                No, not correct. You get your discharge if no one timely objects to its entry and you file your Financial Management Course Certificate.

                                Originally posted by freeseattle View Post
                                If i can't offord making motg payment is it best to do foreclosure within ch7 or outside?
                                The process of completing a foreclosure is up to the lender(s) and cannot happen until the protection of the automatic stay is lifted. As a result the foreclosure will happen "outside" the context of the bk.

                                Originally posted by freeseattle View Post
                                if i to surrender my condo within ch7, would be be able to start another mod after discharge?
                                The ability to modify is between you and your lender(s) and has nothing to do with the bk process - other than the lender insisting upon Court approval (see some above posts). Some account reps for the lenders insist that your sign a Reaffirmation Agreement before attempting to modify claiming they cannot work with you without it. Bull. If someone tells you that find a different account rep to work with. The reality, however, is that the lender does not have to "work with you" and if it decides you "do not qualify" for a loan mod, there is nothing you can do - but, since you did not "reaffirm" you can simply walk away from the 1st and 2nd.

                                Des.

                                Comment

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