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Deficiency Judgement post Foreclosure & CH7?

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  • Deficiency Judgement post Foreclosure & CH7?

    Hi, I filed CH7 in 2008 and debts were discharged in March 2009 (including mortgage, which was NOT reaffirmed). This forum was extremely helpful to me when I was planning my BK, and I really hope you can advise me now as well. After my discharge I continued to live in my house and pay my mortgage on time, but in July 2009 I lost my job. As a result I stopped paying the mortgage. Fast forward to November 2014, Wells Fargo finally forecloses. During that time I saved quite a bit, rebuilt my credit, and eventually (in 2013) moved out of that house and am now renting (a much nicer house). I was underwater over $100k at the time of foreclosure. Now, just today, I see a notice from the court that Wells Fargo has filed a motion for deficiency judgement against me. How can that be, if the mortgage was discharged in 2009???

    I intend to go to court on 12/22 to defend myself and hopefully prevent the court from granting the judgement, but why would they waste time, money and resources to file a judgement that they by law cannot collect? Do I have something wrong here, or are they just dumb?

    I'm in Connecticut.
    Thanks for any insight.
    sivuh5

  • #2
    I suggest you call the attorney who filed the motion and tell them that the debt was discharged in bankruptcy and insist that they dismiss their suit against you. If they are resistant, tell them that if they do not have the deficiency suit dismissed, you will file a complaint in bankruptcy court for violation of the bankruptcy court's permanent injunction against collecting the discharged debt. Follow up your call with a letter, by certified mail return receipt requested, sending them a copy of your discharge order and repeating what you told them on the phone.

    If they do not dismiss the case and you have to go to court on the 22nd, bring a copy of your discharge order, your petition listing them as a creditor and the proof of service showing that Wells Fargo received notice of your bankruptcy.
    LadyInTheRed is in the black!
    Filed Chap 13 April 2010. Discharged May 2015.
    $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

    Comment


    • #3
      Above. . . excellent response.

      Des.

      Comment


      • #4
        Question along the same lines. I filed CH13 in 2010, and discharged in April 2014. Part of the BK plan that was confirmed was that all collateral (house) be surrendered to the bank. I got calls from Carrington Mortgage Services every day for 4 years. The HOA filed for foreclosure in August and I answered the summons with a copy of my confirmed plan. The foreclosure went through and the property was sold but the foreclosure doesn't show on my credit report. Today, I get served papers from Wells Fargo that they are foreclosing on the mortgage. I plan to reply with the same stuff I replied to the HOA suit with. Am I on the hook for the mortgage here or is this just the normal stuff that happens?

        Comment


        • #5
          What you describe is the typical process when an HOA is involved and the HOA is not being paid. I hope you realize or your attorney informed you, that you are "legally" responsible for all HOA dues that occurred and were accrued after you filed. If the HOA foreclosed and obtained title then you may still be legally responsible for the HOA dues. If the bank forecloses, it's possible that the bank will pay the back HOA dues and you'll be done.

          The "pre-filing" HOA dues were discharged by the bankruptcy. The mortgage debt was discharged by the bankruptcy. It doesn't read as if you have legal or equitable title to the property, but you are on the mortgage so the bank must list you as a defendant.

          As for the calls for 4 years... you should have contacted your attorney or demanded that they stop calling. Once you filed, they were barred from calling you under the automatic stay. Once discharged, they were barred under the permanent discharge injunction.
          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


          • #6
            Originally posted by justbroke View Post
            What you describe is the typical process when an HOA is involved and the HOA is not being paid. I hope you realize or your attorney informed you, that you are "legally" responsible for all HOA dues that occurred and were accrued after you filed. If the HOA foreclosed and obtained title then you may still be legally responsible for the HOA dues. If the bank forecloses, it's possible that the bank will pay the back HOA dues and you'll be done.

            The "pre-filing" HOA dues were discharged by the bankruptcy. The mortgage debt was discharged by the bankruptcy. It doesn't read as if you have legal or equitable title to the property, but you are on the mortgage so the bank must list you as a defendant.

            As for the calls for 4 years... you should have contacted your attorney or demanded that they stop calling. Once you filed, they were barred from calling you under the automatic stay. Once discharged, they were barred under the permanent discharge injunction.


            Any sort of monetary penalty involved for a company breaking the discharge injunction?

            Comment


            • #7
              There is absolutely penalties, in the form of sanctions, for violating the bankruptcy stay provisions. There is a process to have the creditor found in contempt and then to have sanctions issues. In situations where the actions of the creditor are egregious, like calling many times when they "knew" of the bankruptcy or should have known, punitive damages can be awarded as well.

              You should talk to your lawyer about pursuing this. If you waited too long and they are no longer doing this, it could be more difficult to pursue.
              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


              • #8
                Thanks for the info. Chase has lost its ever loving mind.

                Comment

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