Debt Collection, Garnishment, Repossession Article


Mortgage Reaffirmation Requirements Bogus

When a homeowner files for bankruptcy there is most likely a lender on the home involved. Once the discharge of the debts is entered by the Bankruptcy Court then borrower is no longer personally liable for the debt. But, if the borrower wants to keep their home they will need to pay the regular monthly payment because there is a lien or security interest in the real property. Some lenders will ask the borrower to sign a reaffirmation agreement after the bankruptcy is filed. This reaffirmation agreement will give the lender the right to sue the borrower if there is a later default.

Some states have laws that protect their homeowners called no-recourse or anti-deficiency statutes. For instance in Arizona a house homeowner cannot be sued after a trustee’s sale is completed so long as the property fits into a certain description: 2 1/2 acres or less, utilized and occupied as a one or two family residence. Therefore, even if an Arizona homeowner signs a reaffirmation agreement they will be not be liable on a first position deed of trust (probably not true for a junior deed of trust). Having said that the judges in Arizona will not sign reaffirmation agreements on residential property. They take this position in order to protect the naive homeowner who is being bullied by the lender into signing a reaffirmation agreement.

Reaffirmation agreement becomes effective upon filing with the Court if represented by an attorney and not presumed an undue hardship. Per the reaffirmation agreement language set out in the Code, “…No court approval is required if your reaffirmation agreement is for a consumer debt secured by a mortgage, deed of trust, security deed, or other lien on your real property, like your home.” § 524(k)(3)(J)(i)7.

Many lenders will state that they cannot refinance a mortgage loan because the loan was not reaffirmed in the bankruptcy. But, any lender has the right to refinance any loan, assuming no federal or state prohibitions. Instead the lender blames the borrower’s attorney. Stating that the attorney did something wrong. In Arizona this is a bold faced lie.

Many programs will refinance once a bankruptcy is completed. For instance -Borrowers who have received a Chapter 7 bankruptcy discharge in a case involving the first lien mortgage who did not reaffirm the mortgage debt under applicable law are eligible for certain programs, depending on the type of loan. According to one expert “The following language must be inserted in Section 1 of the Home Affordable Modification Agreement: “I was discharged in a Chapter 7 bankruptcy proceeding subsequent to the execution of the loan documents. Based on this representation, Lender agrees that I will not have personal liability on the debt pursuant to this Agreement.” ” Accord, In re Bellano, 456 B.R. 220, 224 (Bankr. E.D. Pa. 2011); In re Owens, 10-72509, 2013 WL 4052874 (Bankr. W.D. Va. Aug. 9, 2013) (“…the lack of a reaffirmation agreement with the Bank and the issuance of the discharge to the Debtor do not appear to preclude the latter even now from filing an application under the HAMP program.”); In re Pope, 10-19688-RGM, 2011 WL 671972 (Bankr. E.D. Va. Feb. 17, 2011) (Finding that a lender’s requirement of reaffirmation as a condition precedent to consideration of a loan modification was improper).

My point – your lender is not your friend when it comes to reaffirmation agreements. Talk to your attorney, get good legal advice in order to determine the law and your rights. Talk to the folks at www.makinghomeaffordable.gov. Talk to other lenders. This is an area of law that is changing every day. Do not fall into the trap of assuming a “no” today will still be a “no” tomorrow.

Contributing Attorney: Diane L. Drain is an Arizona bankruptcy attorney at the Law Office of D L Drain.  



Comments:

QUESTIONS

  • MI nombre es eleuterio paredes y mi pregunta es en el año 05 arizona federal me presto $9000 para comprar un auto pero no lo pude pagar y despues el abogado que los representa me cobrava la deuda y durante un año le estuve pagando pero perdí el trabajo y ahora de nuevo me están cobrando pero me están asiendo un garnishment de mi cheque estoy considerando la bancarrota pero no se si es una buena idea pues esa es a única cuenta que tengo y no se que tanto me afectaría una bancarrota
  • I'm a mobile tool vendor and has sold a tool to a individual who refuses to pay and will not return it, how can I collect from this person?
  • I have just found out that a judgement was found against me back in 2008. It is from a credit collection company. I never recieved a notice of this Judgement and I would not have know about this jugement as it has never appeared on my credit reports. This judgement lists both myslef and my husband. I never had a credit card with my husband in this state. I would have never knoiwn about this if I was not selling my poperty. He is not listed on the deed,so can the proceeds pay for the judgement. We where never notified of the judgement under the Rules of Civil procedure # 55.
  • How do you find a statutory agent that takes the papers in a company where a person works
  • I have been contacted by a collection agency for a debt owed. The amount owed is $226, they say they will only accept payment in full, or 2 payments of $114.33. My question is this, if I am willing to pay this, but can only make small weekly payments, are they required to accept them? What do I do if they refuse my payments that I am able to make.
  • I had my bank account garnished.I went to court and the garnishment was released. I'm self employed but I do get paid by a goverment agency. Can my wages be garnished? Does the collector have to go back to court to get another order?
  • WE have paid a photographer $600 for items he has never provided and he now refuses to speak to us. We are based in the UK but I have family in Arizona who will attend on my behalf and we feel that a simple claim might just be ignored. Question is : How can we best ensure that we will have maximum clout when approaching the reclaimation of our monies? If your answer is to employ a lawyer, may we have a list local to Tucson, thank you
  • I just recently had my car repossed and would like to know if the creditor can garnish my wages for the balance of the loan?
  • WHEN THE COURT HAS RULED ON A CHANGE IN A GARNISHMENT HEARING IS THE COURT COMPELLED TO NOTIFY ALL PARIES CONCERNED IN WRITING?
  • My home went into foreclosure on 09. Tried short sales and bank never agreed on any of the contracts. So they took the house back 8/27/09 and they sold it 10/27/09. I was told by my realtor and the short sale expert the HOA dues owed to stop payment while in short sale. And after the house foreclosed that the HOA's would be absorbed in the sale of the propety. Now a collections agency has attempted to collect again in 13'. What does the law say about this.

     

STORIES

  • If you get a divorce, make sure your date of birth is on the Decree if your name is changing!. . .
  • Age discrimination in the workplace. . .
  • I just helped my mother, age 89, deal with her Medicare HMO. . .

LegalLEARN

YOUR FEEDBACK IS NEEDED

FIND LEGAL HELP

  • Please select your county of residence below.

    County:
     

OTHER LEGAL RESOURCES

  • State Bar of Arizona
    www.azbar.org
  • Maricopa County Bar
    www.maricopabar.org
    Referral number 602-257-4434
  • Pima County Bar
    www.pimacountybar.org
    Referral number 520-623-4625
  • National Domestic Violence Hotline
    800-799-7233
  • Bankruptcy Court Self Help Center
    866-553-0893
  • Certified Legal Document Preparer Program
    Link

ORGANIZATIONS