ch 7 disch in 2005 w/NO reaffirmation of Mortgage-

[Catia]

A family member of mine had his Ch. 7 BK discharged in 2005, which is under the 'old laws', and I do not know how this affects him, if at all, concerning his house now in 2010.

At the time of his BK, he was not well informed by his attorney concerning any of the documents filled out, or how BK laws worked.

He certainly didn't know of this site, and due to the general humility of going through BK, just tried to keep it very "hush hush".

His biggest concern was being able to keep the house & car, which was allowed, and his BK was discharged without any issues.

It appears that there were no "reaffirmation" agreements with Countrywide.

The only document we can find is a "Debtor's Statement of Intention" concerning property to be retained.

This is the document for the US Bankruptcy Court, has all of the assets/debts listed (schedules)

It gives a description of the property (lot & block #, address), and it only states (verbatim):
"Debtor will retain collateral & continue to make regular payments" 05/20/2005

No where can we locate any Mortgage Re-affirmation with Countrywide.

The house was used as an exemption.


Fast forward, the house is a money pit. It was upside down at the time of BK, and realistically he should've let it foreclose, the attorney should've informed him of his rights...but he was scared and uninformed, didn't ask any questions, because he didn't think he needed to.

A lot of this is because of the humility and stigma attached to BK and foreclosure, the fact that he is a single parent, doesn't receive any child support, and didn't want his daughter affected by a move or stigma attached to a foreclosure.

The house is still upside down, and needs so much foundation work it's ridiculous, keeping the house has been the biggest thorn in his side since his BK--It is making it amost impossible for him to get on his feet completely.

My/Our question is this--if the mortgage w/ Countrywide was never
"re-affirmed" back in 2005--
IF he let the house forclose, NOW---
would it/could it be something included in the original BK???

Meaning could it be listed as a foreclosure & "IIC" if there never was a re-affirmation of his mortgage???

He is no longer concerned with the stigma attached to foreclosure, his child is almost through with high school--
He wants to walk away, but does not want to add a foreclosure seperate from his BK to his credit report.

Is there a Statute of Limitations for re-affirming a mortgage?

He has been making his mort pymts on time, but things are getting harder and harder each month.
Since he has been making the monthly pymts--does that mean he is re-affirmed with the mortgage company even if no documents were ever signed???

Is there anything he can do now--almost 5 years later?
Does it matter that he used the house as an exemption?


He does not want to go through a seperate BK again to let the house go, but would consider other options, if he had to, if he could not just "walk away"--such as amending the 2005 bk if possible.

Any suggestions?
Ideas?

The house won't sell, even short, it is upside down by about $20k. It also needs $30k worth of work on top of what he owes due to severe foundation issues, (the house is literally sinking) and it's in a poor city neighborhood.

I'm hoping that without any re-affirmation papers signed between he and Countrywide that he can walk away from this mess and let it foreclose, and it would be considered as part of the original BK in 2005...
This would truly allow him the "fresh start" that the BK should've afforded him if he's had a decent & informative attorney in the 1st place.

[jribe]

I would contact the orginal attorney that did his BK and find out of the mortgage was reaffirmed. The "statement of intentions" isn't a legally binding agreement. It's what, at the time, you say you are "intending" to do when you file; but oftentimes people change their mind. Specific paperwork has to be filed to actually reaffirm. This should be recorded with the BK as well, but hopefully the attorney could tell you for sure.

If it was not reaffirmed- he could walk away without repurcussions.

Has he checked his credit report and looked to see how the mortgage is reporting?

A family member of mine had his Ch. 7 BK discharged in 2005, which is under the 'old laws', and I do not know how this affects him, if at all, concerning his house now in 2010.

At the time of his BK, he was not well informed by his attorney concerning any of the documents filled out, or how BK laws worked.

He certainly didn't know of this site, and due to the general humility of going through BK, just tried to keep it very "hush hush".

His biggest concern was being able to keep the house & car, which was allowed, and his BK was discharged without any issues.

It appears that there were no "reaffirmation" agreements with Countrywide.

The only document we can find is a "Debtor's Statement of Intention" concerning property to be retained.

This is the document for the US Bankruptcy Court, has all of the assets/debts listed (schedules)

It gives a description of the property (lot & block #, address), and it only states (verbatim):
"Debtor will retain collateral & continue to make regular payments" 05/20/2005

No where can we locate any Mortgage Re-affirmation with Countrywide.

The house was used as an exemption.


Fast forward, the house is a money pit. It was upside down at the time of BK, and realistically he should've let it foreclose, the attorney should've informed him of his rights...but he was scared and uninformed, didn't ask any questions, because he didn't think he needed to.

A lot of this is because of the humility and stigma attached to BK and foreclosure, the fact that he is a single parent, doesn't receive any child support, and didn't want his daughter affected by a move or stigma attached to a foreclosure.

The house is still upside down, and needs so much foundation work it's ridiculous, keeping the house has been the biggest thorn in his side since his BK--It is making it amost impossible for him to get on his feet completely.

My/Our question is this--if the mortgage w/ Countrywide was never
"re-affirmed" back in 2005--
IF he let the house forclose, NOW---
would it/could it be something included in the original BK???

Meaning could it be listed as a foreclosure & "IIC" if there never was a re-affirmation of his mortgage???

He is no longer concerned with the stigma attached to foreclosure, his child is almost through with high school--
He wants to walk away, but does not want to add a foreclosure seperate from his BK to his credit report.

Is there a Statute of Limitations for re-affirming a mortgage?

He has been making his mort pymts on time, but things are getting harder and harder each month.
Since he has been making the monthly pymts--does that mean he is re-affirmed with the mortgage company even if no documents were ever signed???

Is there anything he can do now--almost 5 years later?
Does it matter that he used the house as an exemption?


He does not want to go through a seperate BK again to let the house go, but would consider other options, if he had to, if he could not just "walk away"--such as amending the 2005 bk if possible.

Any suggestions?
Ideas?

The house won't sell, even short, it is upside down by about $20k. It also needs $30k worth of work on top of what he owes due to severe foundation issues, (the house is literally sinking) and it's in a poor city neighborhood.

I'm hoping that without any re-affirmation papers signed between he and Countrywide that he can walk away from this mess and let it foreclose, and it would be considered as part of the original BK in 2005...
This would truly allow him the "fresh start" that the BK should've afforded him if he's had a decent & informative attorney in the 1st place.

[justbroke]

I thinking that you didn't check PACER? All of the case paperwork would be in PACER. I'd get a PACER account and look up the case. Then check the docket for any "reaffirmation" agreements.

Of course, it may be easier just to contact the old attorney. Don't blame the old attorney. Some people don't listen at all to what the attorney tells them. When you get a discharge also you get a notice (the Discharge Order and Injunction). That's one of the most important documents to retain.

[car67]

Yes check pacer it will show if the house was reaffirmed....
If it was then he is on the hook....... If not can walk away
with no hassle...... Also check the credit report to see how its being reported..... Excellent advice!

[ChaseDidThis]

The "statement of intentions" isn't a legally binding agreement. It's what, at the time, you say you are "intending" to do when you file; but oftentimes people change their mind. Specific paperwork has to be filed to actually reaffirm. This should be recorded with the BK as well, but hopefully the attorney could tell you for sure.

If it was not reaffirmed- he could walk away without repurcussions.

Has he checked his credit report and looked to see how the mortgage is reporting?

Is this right? the statement of intentions is not binding, I didn't realize this, My Auto loan was reaffirmed, but I did not get any papers for my mortgage, I thought the statement of intentions was taking care of that. Does this mean the bank wont report my payments correctly?

[mtbc]

It is correct, indeed. The statement of intention is just that, preceding the 341. The bindng stuff comes in extra stuff (reaffirmation agreements, whatever) signed after the 341.

[ChaseDidThis]

Thanks for the info, interesting though as I thought i read somewhere that in NY you had to reaffirm. Apparently not. I just hope now they report my payments as being on time as that should help my credit in the future.

[Catia]

Thanks all--
so I got his info from him, and I registered with pacer--

Case was discharged as 'no asset'--August 2005--
I looked at every doc I could find w/ his case#/ss# for bk court--
I did not see anything concerning re-affirmation agreements--except that the attorney would charge extra for them, as it was not included in the standard fees.
Is there a specific place or document I need to look for the reafirmation?

I have read part way through the very lengthy pacer handbook. Sigh-I am charged for every hit on the query even if i don't view. Good for me I read some instructions first and used his case # to identify.

Reading those docs from pacer isn't very telling--there wasn't much to read--LOL longest doc was the doc that listed his creditors--Countrywide was noted and served, and appears to not have responded...though it's not clear.

Any suggestions?
exactly where do i need to look for info on re-affimation on pacer?

I really wish he'd have talked to me instead of keeping it all so quiet-I'd have directed him straight to this place!!!

Also--these atty's do not inform their clients of their rights--his car debt was discharged-he was no longer responsible for it--but when he went to purchase a car, he was not informed--and the dealership rolled his previously DISCHARGED auto loan into a new loan--without a reaffirmation-and attached it to his new car loan-Is that even legal???

UGH-it just makes me sick how no one is being informed about what they can/should and should not do. And the stigma that people feel really prevents them from communicating--but the FACT is--if you did not even know you should ask a question--you would not ask the question in the 1st place. People often do not know the bk law, and the rights afforded to them--even while they are in the middle of it-being represented by an atty.

There should be a mandatory handbook, but I guess most wouldn't read the whole thing anyway. ugh.

1st things 1st-just wanna make sure he can walk away from this house 5 yrs later since it appears it wasn't reaffirmed--And I wanna make sure he is as informed about his rights as he can be.

BOA now owns his countrywide discharged mort--do you think they would tell him if he reaffirmed the debt? Are they required to do so?

Also, this is PA--if his debt was disch, and not reaffirmed, is there any possibility of being sued for deficiency? Or is that off the table due to the debt being disch in bk?

Just trying to cover all bases and make sure he gets his fresh start--even if it is LATE!!!

[kw1025]

I just went thru this after being discharged. If you did not sign a re-aff agreement, you are no longer personally for that debt. The bank can foreclose only if you are in default on the payments. They will do the normal foreclosure stuff, bank you are not liable for this debt and it will not effect you negatively. That is their fault for not getting a re-aff to you in the first place. Especially with Countrywide, now B of A. They told me 2 weeks ago that they no longer do re-affs, however you can keep living in the house, paying down your mortgage, and reporting to credit. It seems like a consumer, no brainer!

Bottom line, if debt was discharged, and you did not formally re-affirm (different from intention on filing) you are not liable, for anything, anytime. I have spent thousands of dollars having my attorney answer these questions for me, and you get them for free

[aces67]

A statement of intentions isn't binding. As long as there was no formal reaffirmation signed then the debt was discharged with the BK and he can walk away with no negative effects.