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Bank say reaffirm or else

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  • Bank say reaffirm or else

    My attorney contacted me today and said that the bank that I have my mortgage with notified them that if I do not re-affirm my mortgage, they will proceed with taking my home away.

    I have never missed a payment. Never been late. Even throughout my bankruptcy since filing.

    I was heeding the advice that I read on here about never ever signing a reaffirmation on a mortgage, and now it's critical decision time.

    Any thoughts?

  • #2
    Unless we are talking about a mobile/manufactured home, which is treated like a vehicle for bankruptcy purposes, your attorney is incorrect. In no state can a mortgage lender declare the loan to be in default, refuse to accept monthly payments, and attempt to foreclose simply because the loan was included in Chapter 7 bankruptcy. You do NOT have to reaffirm the mortgage, and as long as you keep making the payments, you will be able to keep your home.


    • #3
      Nope. Not a mobile/manufactured home.

      I actually point blank asked my attorney if I keep making payments can they still take the house, and she said that is correct. Either you sign the reaffirmation or they will get your home.

      I'm upset more at the thought of having to move than I am at losing the house. I do not want to take on the expenses of moving, and finding another place and utilities etc.

      Either way, I guess I will be looking at a battle with the bank as I am pretty committed to not signing the reaffirmation.


      • #4
        It shouldn't be much of a battle, since they cannot do what they say they are going to do.

        (We are talking about a BANK, and not a credit union -- right?)


        • #5
          anyone - what exactly is the controversy or issue w/ reaffirming or not reaffirming the mortgage in a ch7? i just filed ch7 w/ an attny and i own a house,,,
          Last edited by rayrod; 10-06-2017, 09:31 AM.


          • #6
            @cagriffinbd I'm sorry, but you're in the 11th Circuit (U.S. Court of Appeals), and the caselaw is that you MUST reaffirm, redeem or surrender real property in a bankruptcy case. Now, some creditors don't care and let you slide. The creditors that typically care are the ankle-biting credit unions and small (regional) banks. My bank didn't want a reaffirmation (Bank of America). I know that small credit unions demand the reaffirmation or they'll go into the bankruptcy court.

            In fact, Florida bankruptcy courts have recently been flooded with banks coming back to the bankruptcy court to compel debtors to abandon their homes (because they selected "surrender" on the statement of intentions and did not reaffirm or redeem). These debtors stopped paying and then would hire foreclosure attorneys to stall the lawsuits. The banks cried fowl, and they were heard loud and clear by the court. The court is forcing those that, under pressure from the bank, are fighting the bank in court over foreclosure.

            The seminal case is (In re Taylor), 3 F.3d 1512. (11th Cir. 1993)
            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.


            • #7
              We reaffirmed our home and both auto leases during our Chapter 7. The reason was that we plan on keeping our home and vehicles. They say to never reaffirm because you’re stuck if something happens in the future. Since we reaffirmed, our vehicles and home show on our credit report as being paid on time which is helping rebuild our credit! In my opinion, if you feel comfortable reaffirming your home, you should. If you are still uncomfortable with your bills or job situation, you shouldn’t reaffirm. After our Chapter 7 was discharged, we have approximately $1500 per month left after all of our bills are paid!


              • #8
                I went ahead and reaffirmed. My deadline for objecting discharge was Monday of this week. No it's the waiting game on when I'll discharge....and who knows when that will be.

                I hope to be be free and clear from all of this soon, and start my climb back to the top.


                • #9

                  Thank you for that explanation.

                  There are SO many people on these forums that swear up and down that they know the bankruptcy laws for every state and such....and then come to find out they are in fact wrong.

                  Many times the people that are completely naive to what you can and cannot do in bankruptcy are led astray by "opinions" that are shared in this forum. I've had numerous people that declared to me there was absolutely no way the bank could take my property as long as I continued making my payments.

                  Come to find out, their declarations of fact were completely and utterly false.

                  My recommendation to anyone considering bankruptcy is....TRUST YOUR ATTORNEY. Don't take what you read on a forum and run with it.

                  Thanks again, JustBroke. What you wrote about the 11th Circuit Court is exactly what my attorney discussed with me. Without me even saying anything about it, my attorney said "You can't believe everything you read in a bankruptcy forum."


                  • #10
                    Originally posted by cagriffinbdx View Post
                    My recommendation to anyone considering bankruptcy is....TRUST YOUR ATTORNEY. Don't take what you read on a forum and run with it.
                    That deserved repeating. I tell people to take what I'm posting with a cup, not a grain, of salt.

                    Originally posted by cagriffinbdx View Post
                    Thanks again, JustBroke. What you wrote about the 11th Circuit Court is exactly what my attorney discussed with me. Without me even saying anything about it, my attorney said "You can't believe everything you read in a bankruptcy forum."
                    We're "special" here in the 11th Circuit Court of Appeals. I'm not even sure any other circuit has this special exception (and hence why it hasn't gone to the Supreme Court for review). The bankruptcy laws are so affected by underlying State non-bankrutpcy laws and the U.S. Circuit Court for that circuit, that it's nearly impossible to know "all the laws" related to bankruptcy specific to every individual State.

                    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.


                    • #11
                      I'm guilty of believing what bcohen stated so confidently above about "no state" -- also because I've been on this forum for over a year and this thread is the first one where I've seen this special exception discussed. We are told over and over not to reaffirm and that we don't have to. I apologize for chiming in when I clearly did not understand how things go in your particular circuit. My post was meant to be reassuring and I apologize for my ignorance on the matter. Hope it all works out for the best!


                      • #12
                        It's okay about not understanding Florida, Alabama and Georgia (the 11th Circuit) because we are different. What even confuses the local attorney here, is that many still put "stay and pay" on the Statement of Intentions and everything is fine. (Some banks don't care, but many are getting "smart."). This recently became a really hot topic specifically because people would put "stay and pay," have their case discharged, and stop paying. After not paying the mortgage for months/years, debtors would then fight the bank in court over a foreclosure. Some smart foreclosure lawyers went back into the bankruptcy court to force the debtors to "not" fight because "retain and pay" is the nolo contendere version of surrender. The courts here in the 11th all sing in unison that a debtor that surrendered can't fight the creditor in any other court.

                        Now, technically, under the covers, bcohen is correct that a creditor couldn't otherwise foreclose on a home where you are current and are maintaining hazard insurance. The creditor could foreclose if you "abandoned" the home and that's why they fight, here in the 11th Circuit, to force abandonment when you are trying to stay and pay.

                        The key phrase that the courts in the 11th have used is in section 521 of the bankruptcy code... "within 30 days after the first date set for the meeting of creditors under section 341(a)... [the debtor must] perform his intention with respect to such property," At least here in Florida, they give you a choice to "perform your intention" or have your case re-opened and your discharge revoked. (Yes, a harsh reality here, but this isn't enforced nearly as much as it seems.)
                        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.


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