well, after a rough beginning...long

[TRfromillino]

It seems that my attorney and I are starting to see eye to eye on things and we can begin the filing process. This week has been a nightmare with me trying to *unhire* him and him telling me that he's keeping half of my fee for work done. I became concerned when I met with him on Feb. 11 and was asking for a discussion about reaffirming or not. We talked back and forth and he seemed quite adamant that I should reaffirm because if I didn't then the bank would simply have my stay lifted and start foreclosure. I mentioned that I had read a lot about how reaffirming might not be a good idea, and given my age, where God knows what could happen, and the economy the way it is, would that be in my best interest? He slapped his leg and said I don't have time for this *reading thing*! I'm your lawyer and I'm telling you that if you don't reaffirm, this and this will happen. I dropped it and went on to other things.
Once I got home and started to think things over, I became more concerned that he was absolutely wrong. I called back the next day and told the secretary to stop doing anything until I had a chance to talk to my kids first. However she told me that she had most of the paperwork already done, needed more information and to take my time.
I decided against him after a few days, thinking he didn't have my best interests and asked for my paperwork back and my fee. He replied to me that he'd give me slightly more than half of my money back because of the work done already. I did expect that I would pay something but no where near half! So I had to email him back and say that I would like an accounting of the work done and the charges and since he effectively stopped me from hiring another attorney, I needed some give and take on the reaffirmation until I was satisfied that I was making the best decision on the advice given.
Today I recieved another email from him and it was like a total 180 degree turn! He said that looking at my information tells him that it would not be in my best interest to reaffirm! (really?) Maybe he was afraid I would rat him out to the ARDC. And I wasn't trying to get him to agree with me, I just want the whole thing to be in my best interest.
So anyway, I did email him back and say we would proceed, I would not reaffirm and that I wanted to retain, pay and stay. Ball is in his park now.....

[btbeme]

Methinks an attorney should do what is best for his client, and what the client asks him to do - in that order. Funny thing is, if you are willing to let the house get foreclosed (won't happen unless you fail to pay), I'd say that Priority #1 and Priority #2 are in line with each other, making the task a fairly simple one.

Now...I didn't go back and read your earlier posts, but I am assuming that you are current or intend to (immediately) get current on your mortgage; or that you really don't care about a foreclosure.

In any case, reaffirming is usually a bad idea.

[TRfromillino]

Of course I care about the possibility of a foreclosure, but I am current on my mortgage, and hope the bank takes note of my payment history and allows me to stay and pay. It's not going to do them any good to have a house on their books. I was simply amazed at the attorneys' high handed treatment of what I felt should be a rational discussion. However he's changed his tune, explained the pros and cons the way I expected him to in the beginning and hopefully we're on the same page now. While he's not my favorite person at the moment, he's all I have and he has all my money.

[Floridagail]

I met with Paralegal on the free consult, ( he was a former car salesman on disability being paid under the table).
In my case the paralegal did all the work anyway, Then I was to meet the attorney at the 341 meeting, (she had to send a different one and he was late) So I never did meet my attorney. I got discharged just fine. You will be fine with the attorney, He knows you are the boss now.

[despritfreya]

Your attny is relying upon the 7th Circuit decision of In re Edwards, 901 F.2d 1383 (7th Cir. 1990) which shut down one’s ability to “stay and pay”. The 7th Circuit is one of the few Circuits that holds a debtor’s only options are to surrender, reaffirm or redeem.

I did not find any post BAPCPA cases from Illinois interpreting the change in the language of Section 521 but the below give a good interpretation of the issues.

In re Amoakohene, 299 B.R. 196 (Bankr. N.D. Ill., 2003)
In re Baucom, 305 B.R. 712 (Bankr. S.D. Ill., 2004)

As everyone on this forum knows, I am a staunch supporter of not reaffirming a mortgage. I think it is even more critical in a recourse state and, if I am not mistaken, Illinois is a recourse state. To me, the risk of a foreclosure on a property to which the payments are current simply because a reaffirmation agreement was not signed is small compared to the financial ruin that could happen down the road if one is signed (and approved by the Court). Now, just maybe, the judges in your District have taken a position similar to the ones in mine. . . “A debtor can enter into the reaffirmation agreement but, I as the Judge, simply will not approve it and, Mr. Creditor, if you try to repo the home/car, when payments are current, you will answer to me.”

If you decide not to reaffirm you just need to understand the potential consequences and hope the lender could care less so long as payments are made. To me, that is the way to go.

Des.

[TRfromillino]

You know, Des, I had thought about that type of scenario myself, where the judge denies the reaffirmation for undue hardship. But how does one know that for sure? I wonder how well my attorney knows the judge and how he deals with that. Seems like it's taking a big chance?

[despritfreya]

Seems like it's taking a big chance?

Whatever you decide (reaffirm or not reaffirm) is always a "chance" but, if you understand the issues and are willing to take the risk, you are one step ahead of everyone else.

Ask your attny whether or not, should the Edwards issue arise after discharge, you can seek to reopen the case and revoke the discharge for the sole purpose of entering into a reaffirmation agreement - once approved by the Court, have the discharge reinvoked and close the case.

You can also ask if the judges routinely deny reaffirmation agreements to get around Edwards.

Des.

[TRfromillino]

Well, that was a lot of reading you gave me to do, Des, and I understood some of it. I wish I knew a bk judge who could answer alllll my questions. The lawyer is one thing and has most of the answers, but when it all comes down to it, the judge holds the cards. One term I kept coming across was 'ipso facto' which made me get my mortgage out and sure enough, there's a clause in there sounding suspiciously like that. Another question for the lawyer...how enforcible are they in Illinois? I will also ask him about how often he sees judges deny the reaffirmation.