Can the Mortgage co take our home ?

[deadbrokeinnc]

Hello All,

Thanks for all the advice. We have finally decided to file for the chapter 7. We met with a second attorney this week and feel comfortable with her handling our case. We passed the means test and she said everything is going to be OK.

It feels like a weight has been lifted off of my shoulders. Even though we have not "officially" filed yet, she told us to forward all calls to her.

Our ONLY concern now...... outside of making it through the process without any issues is our mortgage with GMAC. We were advised by our attorney that it may not be in our best interest to reaffirm just in case we have hardship later. She stated that as long as we pay our mortgage they cannot take our home. I asked her about the fact that we have not taken one of the steps that I read in the NOLO book. Reaffirm or surrender. She said that this is considered "Real" property and they could not just come and take it whenever they please as long as the payments are being made. Even then hey would have to go through the process to foreclose

Any experience with this situation? I just dont want them to come back 10 years from now saying they own the property since it was discharged in BK.

[laurannm]

Search around on these boards for "reaffirm" and you'll find a ton of posts on this topic. Just about all lawyers recommend you do not reaffirm for the same reason your lawyer gave you. Not a single member on here has lost their home because they didn't reaffirm (but stayed current). In reality given the current housing market and economic conditions, the last thing a lender wants is another home to throw on the pile. You could also refinance down the road to get back into a more "official" mortgage if you wanted to (assuming the housing market picks back up). And of course your state's foreclosure laws come into play as well.

Check out these two articles; the first talks about something called "laches" which means that if a party sits on its rights for too long, it may be estopped from enforcing those rights.

The other article talks about what your lawyer mentioned about "real" vs "personal" property. According to that article. the BK code only refers to personal property (such as cars) and not real property, such as a home. It's most lawyer-speak but a good read none the less.

http://www.************************/...house-at-risk/

http://natlaw.com/newbnkr2005act.pdf

If you don't reaffirm you just have to make sure you aren't late with any payments, otherwise they may start the foreclosure process

[deadbrokeinnc]

Thanks!

[JRScott]

As long as you make the mortgage payments on time you'd be fine.

[oldrocker]

Yeah, what they said. I to am in NC, my lawyer says there is no reason what so ever to reafirm a mortgage. Now vehicle loans are a completely differant story, depends on who the loan is with.

[laurannm]

Vehicles loans also depend on your states repo laws. Some states do not allow repos as long as you remain current.