Discharged !!!!!

[logansdad]

Thanks to all the help that I received from the kind people that chose to offer support and guidance. Those familiar with me I stuck ground and pushed the bank that pressured and pressured me to reaffirm the mortgage or kick me out. Friday I said answer my question will I be allowed to stay and pay or not, if not I will stop all payments immediately this morning a message that as long as you stay current we will not attempt to foreclose.

[newbie2]

Woo Hoo!!! That's great news! Congrats to you.

[Mensa1]

Good news logansdad!!! Which state or circuit court are you located.?

Attys that I have spoke with seem to be convinced that not reaffirming the mtg will result in a foreclosure; saying that ride thru is not permitted in this Circuit. Of course I think this is heresy that they make this statement, (not about what the Circuit Ct permits but the practicality of of whether the lender will foreclose or not), but it is yet to be determined. The lender has sent a reaffirmation and it definitely appears to read that what will happen is the debt will be discharged and they will no longer report the tradeline. Big whoop. I guess I plan on learning the answer as we go along as opposed to pushing the issue, but good to learn of the response you received.

BTW, who is the lender?

[BCA2009]

From what I've read as long as you keep making payments, the banks leave you alone. Al least with the big banks that already have thousands of foreclosed properties on hand.

Maybe a smaller local bank would demand a re-aff or foreclose, but when it gets right down to it, what incentive does the bank have if you are current on the payments.

I'm not going to re-affirm mine. I have a first and second. I only have three weeks left until discharge and haven't recieved re-aff forms from either one of them, so I guess they really don't care.

I'm curious how this is being handled in Florida's middle district, where the judge declared that you have to re-affirm or surrender (or redeeem). If the bank doesn't send a re-aff, what is the court going to do? force you to surrender? Or if the bank did send you a re-aff but you refused to sign it and kept making payments. Same question, Since the court can't force you to sign the re-aff what can the court really do? If you keep making payments and the bank doesn't foreclose, how can the judge prevent a ride thru even thought she said in her ruling that they are not allowed?

Anybody on the forum in Florida Middle District not re-affirming and planning to ride thru? I'm wondering how it's actually being handled compared to what the judge ruled back in November.

[logansdad]

Well this is a smaller bank. In fact it did go to the foreclosure Attorney (foreclosure mill) with fees of 700.00 on a new reaffirmation agreement attached stating basically sign or surrender. I said BS I had a CMA done that showed the property was upside down several thousands of dollars and they backed off when I asked is they wanted me to immediately stop making my payments.

[indigoblue]

Congrats!!

[Mensa1]

I'm curious how this is being handled in Florida's middle district, where the judge declared that you have to re-affirm or surrender (or redeeem). If the bank doesn't send a re-aff, what is the court going to do? force you to surrender? Or if the bank did send you a re-aff but you refused to sign it and kept making payments. Same question, Since the court can't force you to sign the re-aff what can the court really do? If you keep making payments and the bank doesn't foreclose, how can the judge prevent a ride thru even thought she said in her ruling that they are not allowed?

Anybody on the forum in Florida Middle District not re-affirming and planning to ride thru? I'm wondering how it's actually being handled compared to what the judge ruled back in November.

WORDS...... and what do they mean?

In this instance SURRENDER does not mean foreclosure or not being able to keep your house. Of course the lender could foreclose, but it doesn't mean they will.

There simply isn't the legal grey area that used to be known as RIDE-THRU in many of these circuits any longer. This must be the courts was of attempting to protect the creditor but for those willing to take a bit of risk and not re-aff the note, the result seems to be RIDE-THRU just the same.

There is NO linkage between what the court says, Re-aff or Surrender, and foreclosure. These terms/words do mena the same thing in reality.

[BCA2009]

WORDS...... and what do they mean?

In this instance SURRENDER does not mean foreclosure or not being able to keep your house. Of course the lender could foreclose, but it doesn't mean they will.

There simply isn't the legal grey area that used to be known as RIDE-THRU in many of these circuits any longer. This must be the courts was of attempting to protect the creditor but for those willing to take a bit of risk and not re-aff the note, the result seems to be RIDE-THRU just the same.

There is NO linkage between what the court says, Re-aff or Surrender, and foreclosure. These terms/words do mena the same thing in reality.

I totally follow what you are saying. My point was really about the language of the law and the courts abilitiy to enforce it. The law should have said that the creditor should have the choice whether to reafiirm or not re-affirm. But that's not what the law says and that is not what the judge's ruling in Orlando said. Rather the opinion specifically says that to keep real property the debtor has to redeem or re-affirm. But the court can't enforce that. So I'm curious what is happening in that district since the judge ordered that the ONLY way to keep the property was to redeem or re-affirm.

I copied the ruling below and highlighed relavant parts. I'm sorry I couldn't do much with the formatting.

Rather, Congress enacted
three other sections that appear to remove the ridethrough
option for personal property in those circuits
that previously had allowed debtors to retain personal
property without reaffirming or redeeming. The appellate
decision makes no distinction between real or personal
property; nor is any distinction merited. The Eleventh
Circuit looked at the plain language of the statute and
interpreted the language to prohibit ride-through,
regardless of the type of property debtors no longer can keep personal
property without reaffirming the debt or redeeming the
property. All debtors are treated similarly in every
circuit.

The Court acknowledges that a split apparently
still exists as to real property collateral. Certain courts
in jurisdictions that previously allowed the ride-through
option have returned to pre-BAPCPA law to conclude
that the option remains viable for real property.

However, such is not the case in this circuit. The
Eleventh Circuit clearly has stated that a Chapter 7
debtor must either redeem or reaffirm a debt if the
debtor wants to keep the collateral.

[Mensa1]

I totally follow what you are saying. My point was really about the language of the law and the courts abilitiy to enforce it. The law should have said that the creditor should have the choice whether to reafiirm or not re-affirm. But that's not what the law says and that is not what the judge's ruling in Orlando said. Rather the opinion specifically says that to keep real property the debtor has to redeem or re-affirm. But the court can't enforce that. So I'm curious what is happening in that district since the judge ordered that the ONLY way to keep the property was to redeem or re-affirm.

Again, my point is that the logical connection between the words "SURRENDER" most would construe this to mean the opposite of "KEEP". So you either "RE-AFF" and "KEEP" or "SURRENDER" and the lender takes the property back: "FORECLOSURE".

What I believe "SURRENDER" refers to is the "RIGHT TO KEEP", but has little to do with the physical possession of the collaterol, in reality. What has to do with physical possession is whether the lender accelerates, or not.

I do believe that by "SURRENDER"ing the collaterol, the lender has the right to foreclose or replevin whether you are current or not. That is simply the risk that you run by not "RE-Aff"ing the property.

This ruling is just what is needed, especially in a challenged area like FL, to throw a fresh can of gasoline on an already ablaze forest fire.

[coolmom04]

Congratulations on your discharge

[justbroke]

First, this ruling is not anything new, controversial or out of the norm! As posted, our Jurisdiction is from the 11th Circuit and we have binding caselaw from the 11th Circuit in the landmark case Taylor v. AGE Federal Credit Union (In re Taylor), F.3d 1512, 1517 (11th Cir. 1993).

Regardless of splitting hairs on what redeem or keep or reaffirm means, our Circuit Court has made a binding ruling in Taylor.

I will say this though. It is entirely up to the lender to proceed with any foreclosure or repossession. The law doesn't force them to do so. In the recent case, which I previously studied in the Middle District, In Re Linderman (and is the case referenced above), it was the creditor who filed a motion to compel the turnover of the property. If the lender chooses to exercise their right to foreclose on an un-reaffirmed property, then they may do so. However, you have to really think through the interplay of the Federal Laws (11 USC 521) and State law.

Under Florida State law, the lender could not foreclose. Simply because the debtor was not in arrears and was current! However, the Bankruptcy discharged the debt and the debtor was bound by the election in their Statement of Intentions and their actual actions. They did not reaffirm. The lender was VERY smart about this. They immediately filed a motion to compel after 4 months of "waiting" for the debtor to do something! Interesting if you really read the case (not just the ruling, but the entire docket) and understand why this happened the way it did.

This ruling is just what is needed, especially in a challenged area like FL, to throw a fresh can of gasoline on an already ablaze forest fire.

Unfortunately, this has been this way since 1993. It's nothing new here in Florida, Alabama or Georgia... affectionately known as the 11th Circuit. No one has overturned Taylor in... 17 years.

[Mensa1]

Under Florida State law, the lender could not foreclose. Simply because the debtor was not in arrears and was current! However, the Bankruptcy discharged the debt and the debtor was bound by the election in their Statement of Intentions and their actual actions. They did not reaffirm. The lender was VERY smart about this. They immediately filed a motion to compel after 4 months of "waiting" for the debtor to do something! Interesting if you really read the case (not just the ruling, but the entire docket) and understand why this happened the way it did.

So what DID the discharged debtor do in this case??? SURR or Re-Aff

[justbroke]

So what DID the discharged debtor do in this case??? SURR or Re-Aff

Forced, in my opinion, to reaffirm. Their intent was to "Retain and Pay". The Court's order also instructed the Clerk to hold the discharge of the case for 60 more days, to allow the reaffirmation to be filed or the Statement of Intentions updated to reflect surrender and for the lender to file a Relief from Stay Motion for a surrender.

[Mensa1]

I wonder if the debtor was current or under some sort of a mod? Doesn't sound like the lender would have been on the muscle unless something unusual existed here. Just a hunch.

[justbroke]

I wonder if the debtor was current or under some sort of a mod? Doesn't sound like the lender would have been on the muscle unless something unusual existed here. Just a hunch.

Nope. Debtor was totally paying on time, no lates, no modification. It's interesting that the lender took that stance, but then again, this wasn't one of the big national lenders (National City Bank, Bank of America, Countrywide, Chase).

The funny part, or not so funny part, is that this was over a $32,000 balance on a mortgage. You want to hear an even funnier part? This was actually a second mortgage. The debtor actually, originally, listed BOTH the first and the second as "Retained" and then on the other reasons wrote "retain, keep current". The first mortgage lender, Citimortgage, didn't complain at all and the updated statement of intentions STILL reflects the "retain, keep current"! It was only this small Riverside Bank that complained and the debtor reaffirmed the debt (changing their intentions to "retain" and the intention to "reaffirm").

This is precisely why I indicated that it's up to the lender/creditor to complain. Citimortgage didn't care. However, this little bank did. (Don't ask me what the balance was on the first because I never pulled the entire petition and don't want to.)

Just goes to show that it's the little ankle biters that always get you.