Stay & pay

[justbroke]

It was made to be a joke, justbroke. You know, haha..funny.

At least you guys get nice weather all the time! Relax and enjoy the palm trees!

Well, others read this website, and I want to make sure they are not discouraged if they ever thought about living in Florida. Besides, we have the unlimited homestead exemption in our favor!

Additionally, I wanted to provide some education for the pro se filers and the curious as well, as to why the amendments to the Bankruptcy code, under the Bankruptcy Reform Act (better known as the Bankruptcy Abuse Prevention and Consumer Protection Act or BAPCPA), changed this. Prior to BAPCPA, where only a handful of States/Appellate Circuits that had this precedence.

[BKlooker]

It was made to be a joke, justbroke. You know, haha..funny.

At least you guys get nice weather all the time! Relax and enjoy the palm trees!

[justbroke]

I'll say it again like I have said it before....ALL THE CRAZY STUFF COMES OUT OF FLORIDA!! What is up with that??! Seems like every story i read on here that involves something bizarre, from forced abandonment to trustees forcing appraisels on EVERYTHING....what's in y'all water??

First, It is NOT Florida! The reason you see such specificity about Florida on this board, is because we probably have more debtors and because we Floridians are very open about our bankruptcies; at least on this public board.

Secondly, and the topic of my reply, is that it is the entire 11th Circuit which is Florida, Georgia and Alabama! Additionally, you will probably start to see other Circuit Court of Appeals decisions in line with the 11th. I don't think that this has reached EVERY appellate level yet.

If you look at pre-BAPCPA law, it's the 4th Circuit, 5th Circuit, 7th Circuit and 11th Circuit that has this "rule". The 11th Circuit is the In Re Taylor case and it is STILL GOOD LAW. If you look at the analysis, you will see where some courts (at the District non-BAP level) had earlier concluded that the text in 11 USC 521(a)(6) meant that it only applied to personal property. However, those Districts overlooked what's in 11 USC 521(a)(2) which clearly just states property without any designation of it being real or personal. (Note: the 4th, 5th, 6th and 7th circuit apply the same rule!)

11 USC 521(a)(2) if an individual debtor's schedule of assets and liabilities includes debts which are secured by property of the estate--

(A) within thirty days after the date of the filing of a petition under chapter 7 of this title or on or before the date of the meeting of creditors, whichever is earlier, or within such additional time as the court, for cause, within such period fixes, the debtor shall file with the clerk a statement of his intention with respect to the retention or surrender of such property and, if applicable, specifying that such property is claimed as exempt, that the debtor intends to redeem such property, or that the debtor intends to reaffirm debts secured by such property;

(B) within 30 days after the first date set for the meeting of creditors under section 341(a), or within such additional time as the court, for cause, within such 30-day period fixes, the debtor shall perform his intention with respect to such property, as specified by subparagraph (A) of this paragraph; and

(C) nothing in subparagraphs (A) and (B) of this paragraph shall alter the debtor's or the trustee's rights with regard to such property under this title, except as provided in section 362(h);

That seems clear to me, and this is how the creditors in Florida use the In Re Taylor decision to force a debtor to follow his intentions! The Florida-style ruling, since we are now saying that Florida is crazy, has been made in Ohio, Kansas , Alabama, Georgia, California and several other States. As I posted earlier, most larger banks don't force the debtor to choose! It's the small ankle-biting credit unions, and smaller banks, that make a fuss.

[BKlooker]

I'll say it again like I have said it before....ALL THE CRAZY STUFF COMES OUT OF FLORIDA!! What is up with that??! Seems like every story i read on here that involves something bizarre, from forced abandonment to trustees forcing appraisels on EVERYTHING....what's in y'all water??

[debee]

Remember, while they can't foreclose if you are on time with your payments, they absolutely can re-open your case, and petition the course to force you to make good on your intention!!! That's not a foreclosure, but it will precipitate a foreclosure since you will be forced to abandon the property. I still don't call that a foreclosure, but a forced abandonment... that eventually results in a foreclosure.

I like this option. For those debtors who indicated 'reaffirm' on the SOI, it's like a warning shot to sign a reaffirmation (make good on the intention to reaffirm) or walk away. If the house value has come into line with the debt, reaffirming might make sense. If it hasn't, debtor walks. Whether this is how it's actually playing out in the 11th, or how it hypothetically could play out, I don't think it's so bad.

[kar]

Well, I will say refer to my thread here. (http://www.bkforum.com/showthread.ph...rming-mortgage) I think I summed it up for the 11th Circuit nicely and referenced the 2009 decision in the Middle District of Florida.

Remember, while they can't foreclose if you are on time with your payments, they absolutely can re-open your case, and petition the course to force you to make good on your intention!!! That's not a foreclosure, but it will precipitate a foreclosure since you will be forced to abandon the property. I still don't call that a foreclosure, but a forced abandonment... that eventually results in a foreclosure.

Good! They can have my underwater house. What you need to do is on your SOI is have the statement that says something like: "debtor will retain collateral and continue to make regular payments". They don’t want your house!!!!

[justbroke]

Well, I will say refer to my thread here. (http://www.bkforum.com/showthread.ph...rming-mortgage) I think I summed it up for the 11th Circuit nicely and referenced the 2009 decision in the Middle District of Florida.

Remember, while they can't foreclose if you are on time with your payments, they absolutely can re-open your case, and petition the course to force you to make good on your intention!!! That's not a foreclosure, but it will precipitate a foreclosure since you will be forced to abandon the property. I still don't call that a foreclosure, but a forced abandonment... that eventually results in a foreclosure.

[tcreegan]

Hi all,

I just wanted to second what BKLooker posted, what a court/trustee can do is not necessarily what they will do....having someone on the ground who knows the trail ahead can make a big difference. Need an attorney like des, ...in X cases over X years I have seen this happen X times. But attorneys are human, you paying attention and following along might catch something and save the day.

Sorry, a little off topic here...

Tom in Colo

[debee]

So you're saying simply stating intention is enough? It's not required to be in writing?

No, I'm just observing something about those particular cases. The 11th didn't allow ride-through prior to BAPCPA and here the Linderman and Harris folks tried to introduce it on the basis of what had been determined in other circuits. They left the SOI blank and tried to forced the 4th option into existence in a circuit that had never interpreted the code to allow it in the first place. They gambled and lost. That's how I see it but my judgment could be flawed.

Many people here have ridden through and are riding through in the 11th. As others have stated, it really is up to the lender. Also, I don't know how the state law functions in the states in the 11th in terms of foreclosure. Can a lender legally foreclose months or years post-bk on the basis of the person having filed? I think there are probably state foreclosure law protections in place in that case. In the cases referenced above, I believe the creditors went after the property right away.

We know that personal property reaffirmation agreements are required pretty much everywhere (I think there is one exception). But more often than not it's possible to keep your car without signing a reaffirmation agreement. But if you leave the SOI blank or add your own square, check it off, and scribble in "retain and pay", I think you're asking for trouble.

[Chowder]

So you're saying simply stating intention is enough? It's not required to be in writing?

Nevermind. I think I get it. State intent on the BK paperwork, just never fill out the reaffirm paperwork.....

[debee]

Both the cases in Florida that pertained specifically to real estate issues were cases where the debtor didn't indicate anything on the Statement of Intentions.

In re Harris (summary in forum thread here: http://www.bkforum.com/showthread.ph...irm-A-Mortgage) and In re Linderman ( http://docs.google.com/viewer?a=v&q=...V4owg7Wcd1Ikgw)

I don't know what, if any, difference it would have made to their cases if they had indicated an intention to reaffirm but refused to sign the reaffirmation agreement (if lender even bothered to send one).

[BKlooker]

My Attorney told me things related to the house that I got in arguments here about. I don't know who was right, but it turned out just like he said.
If your Attorney is anything like mine, they know the law, and they know what you can get away with. Often two very different things.

This has definitely been the case for me too. This is not to knock anyone on here giving advice, especially the real attorneys who post here.

But I will say some of the advice given on this forum don’t always jive with what I have found to be reality going through this thus far. A lot of the BK process just varies so much by the area/state you are in, individual trustee, circuit court you fall under, and a variety of other individual factors dealing with your case that may be ‘out of the ordinary’.

At the end of the day, TRUST YOUR ATTORNEY! As long as you have done your homework on the law firm ahead of time and you get a good attorney (or as best you can), your best bet is going to just put trust with your legal counsel. They best know your individual laws, court rulings, likelihood of getting by with certain listing on your means test, schedules, etc. and a lot of times they are buddies with the trustees and/or ARE trustees in your area. They know best…..

If your lawyer says stay n pay should work....go with that for now until trustee mentions otherwise or tries to force you to do otherwise, and the chances are good you will be fine witht hat. My lawyer is having me stay n pay too, despite what's been listed on this forum...i looked up some cases in my area and it's a very common way to get through a BK on a mortgage.

My 2 cents…

[kar]

LOL!!!! As exemplified by how many mortgage mods they write? It's quite apparent the DO want the houses, just not all at once.....

As far as mods go you are right they don't have a clue what they are doing......LOL.

[Chowder]

The bank does not want your house.

LOL!!!! As exemplified by how many mortgage mods they write? It's quite apparent the DO want the houses, just not all at once.....

[Chowder]

Great When I spoke w/ my attorney he stated it wouldn't be a problem to NOT reaffirm the mortgage.

I was going to try and get a non recourse loan mod after discharge.

My Attorney told me things related to the house that I got in arguments here about. I don't know who was right, but it turned out just like he said.
If your Attorney is anything like mine, they know the law, and they know what you can get away with. Often two very different things.