Post divorce bankruptcy and joint mortgage

[ammkb]

I have a tangled situation!

I was awarded our house in my divorce decree. The next week, I lost my job and decided to just let the ex-wife stay there and pay the mortgage. She did fine making the payments for 3 years, but she she started renting it out and making late payments.

2 years ago, I filed bankruptcy (ch. 7). I included the house as surrendered property. The ex-wife called the bank, and instead of foreclosing, they kept the account open and she continued to pay.

And then she started paying later consistently. Even though I had surrendered it in bankruptcy, it was (is) still being negatively reported on my credit. I've gotten conflicting answers from attorneys- some say it should NOT be showing on my credit because I surrendered it, and some say it should because of the joint account status (and remember... I never signed a reaffirmation agreement, so i'm not legally responsible for the loan, right?)

She said she would refinance in her name only, so i sent her a quit-claim deed to speed up the process. She never refinanced, and the loan has been late- and recorded on my credit report- 30+ days every other month for the past 9 months.

So my questions..
1.) Is the bank able to report it on my credit file even though I surrendered it? I called, and they said they could. If not, how do I make them stop?
2.) Is there any way to legally make my ex refinance the house. OR
3.) Since my actual divorce decree states that the house is MINE, can I legally take possession of it and try to refinance (or sell) without her stopping me? (the sticky part of that being that she has a quit-claim deed signed by me last year).

Help! I'm remarried now, and my wife and I aren't able to move because of this crap and how it's affected my credit score.

[kiddles]

I'm thinking you need an attorney for this (perhaps your divorce attorney), but I'm bettimng you don't hae the moulah just laying around to pay one. I seriously try to get an attorney, though - this is a sticky situation.

However, if you were divorced when you filed BK (and it sounds like you were), and didnot reafform the loan, then it was included in the BK. You surrendered the property, BK the loan - you're out of it.

Sounds like the bank allowed the ex to keep the house and keep paying. She didn't BK, so she is still responsible for the loan. Now she's behind.

I believe in that stuation, I'd send a copy of the BK discharge to the president of the bank, reminding him that your responsibility for the loan ended on (date of discharge). I'd discuss in the letter the numerous violations of BK law and credit reporting laws that his bank has committed, and how it has harmed you. Then suggest a resolution - his bank corrects your credit reports and makes a token payment to you for causing you all this trouble (mention a sum here, maybe $5k).

Alternatively, you will be forced to re-open the BK case and discuss with the Judge the numerous violations of the law his bank has committed.

THen - be prepared to negotiate. Give up the request for cash, graciously accept merely the correction of your credit reports, and you both sign a release form that clearly states that you have no financial obligations with regard to that loan and they have no further obligation to you in regard to "making you whole" from the damage they've done.

And be prepared to go to Court, if need be - don't let it be just a bluff.

[lrprn]

Was the original mortgage for this home in just your name? Or was your ex a co-signer on the mortgage? Are both your names on the deed or just yours?

Have you officially disputed the inaccurate reporting on your credit report (in writing, registered return receipt mail) or just called the bank for a chat?

1.) Is the bank able to report it on my credit file even though I surrendered it? I called, and they said they could. If not, how do I make them stop?

Unless you reaffirmed the mortage (you didn't, did you?), the loan should be listed as IIB. If you have already gone through the dispute process, next is to try threatening legal action and (if necessary) follow through to get them to report this correctly.

Were the attorneys you spoke with bankruptcy or real estate attorneys?

Contact a consumer protection attorney in your area - they specialize in consumer credit issues like this. You can find one in your area here - http://www.naca.net/

2.) Is there any way to legally make my ex refinance the house. OR

No.

3.) Since my actual divorce decree states that the house is MINE, can I legally take possession of it and try to refinance (or sell) without her stopping me? (the sticky part of that being that she has a quit-claim deed signed by me last year).

After the divorce you surrendered the house back to the bank in your bankruptcy plus gave a signed quit-claim deed to your ex. It's going to be hard to refi/sell what you've indicated repeatedly you don't want to own any longer. Did the bank just transfer the mortgage loan in total to your ex after you filed?

Go get some solid legal counsel from several real estate and bankruptcy attorneys in your area about where you stand with the house - do you own it or do you not? Find out where you really stand. It's the only way to know what your best route out of this mess is. Good luck - keep us posted about what you find out.

[SinkingFast]

Here's an article for you to read that talks about this issue:

http://www.bkforum.com/showthread.php?t=17934

You probably need a specialty attny. Someone who's familiar with Creditor's Rights, BK, and Real Estate Law. You might not be able to find one attny to do the job. It may take a couple.

Even if you decide not to hire an attny to represent you,.......... Even if you have to pay for Consultations,............ It could be well worth the $$$'s spent to learn what you need to do.

[ammkb]

Was the original mortgage for this home in just your name? Or was your ex a co-signer on the mortgage? Are both your names on the deed or just yours?

The mortgage was/is a joint account in both of our names. Both of our names are on the deed as well.

Have you officially disputed the inaccurate reporting on your credit report (in writing, registered return receipt mail) or just called the bank for a chat?

I disputed it with the credit bureaus. They sent a letter saying it was a "valid reporting" and to take it up with the bank. When I called, I got a snotty kid who insisted on telling me that bankruptcy does *not* take away my legal responsibility on the loan (so that shows how smart this dude was, right?!). He said that until my ex-wife refinanced in her own name, they would continue to report it to both our credit reports when it was late. I could kick myself for not getting that idiot's name. After that, I spoke with 2bankruptcy attorneys (one of which does a lot of real estate stuff, too). They both advised me to send a certified letter to the bank, so that is what I'm doing next. I really just asked on here to see if the opinions would be same as to that being the next course of action.

Unless you reaffirmed the mortage (you didn't, did you?), the loan should be listed as IIB

Absolutely not. I made it very clear that I would never sign a reaffirmation agreement when I spoke with both my ex and the bank right before filing bankruptcy. My HOPE was that the bank would foreclose, and I would be done with it all, but obviously, that did not happen.

Did the bank just transfer the mortgage loan in total to your ex after you filed?

They left my name on there, and they would actually send me the late notices. I started calling her the second I got them and was glad when they stopped. I THOUGHT they stopped because she was paying on time, but lo and behold, they stopped because she called them and gave them a different address to contact her. I found it on my credit report as my "current address".

My bankruptcy attorney said that this was sadly VERY common with banks and that if the certified letter didn't clear it up, she would contact them herself. Of course, that will cost money, so I'm hoping the certified letter works.

Here's a rough draft of the letter I've written. I"d love some opinions on how it sounds:

[lrprn]

Content is good but too wordy for this kind of letter. Frankly the bank doesn't care about the nitty gritty details. Get tough with your editing - stick to the bare facts - "I filed bankruptcy, called your bank twice (give the dates), and an uninformed bank employee said that I still owed a loan that has been discharged in bankruptcy. End by stating that if your credit report is not updated correctly by (choose a date about two weeks from when you send the letter), you will be forced to seek legal action. Short and to the point is the ticket.

Be sure to let us know what happens - good luck!

[CindyLou]

I guess what's confusing me here is this: House in both names, but only you filed BD.......not sure where you really leave you. Even though you were "given" the house in the divorce, that really doesn't mean anything to the mortgage company. They do not recognize divorce decrees. They consider the original loan as it is from day one. That may be where the confusion lies. She never filed so the entire loan was never really included in bankruptcy. Is anyone following me here??? Is my train of thought completely off? Don't both signers on the loan have to file in order for the debt to be discharged? One debtor cannot be discharged off of one loan and leave the other debtor active on the loan if the other debtor didn't file. And vice versa if the ex wife didn't file she can't be discharged from the loan just because the husband filed. Its all or none. Right??

I'm not so sure the mortgage co. is completely off key here. Now if she had also filed that would be another story.

BTW are you in a community property state?

[BKcrazy]

You are right. Both parties are responsible for that debt. I found out the hard way. My ex hubby tanked my credit for some time over this. Then his parents bailed him out (as usual). Must be community property. Never co-signing for a loan ever again.

[SinkingFast]

Hopefully you saved those Late Notices they sent you.

If you did,......... Do they have a disclaimer statement on them. Something to the effect of "For informational purposes only."

Or are the Late Notices full out bills sent to you.

If so, that might be a violation of the Permanent Injunction of BK. You'd need to ask your attny for sure.

Given all this other convoluted stuff surrounding jointly held property, community property States' Laws, Divorce, and BK.

[ammkb]

Thanks for all the good info. I'm sending them a certified letter in the morning (I took the advice of making it more short and to the point), and I also contacted a consumer advocacy attorney that specializes in both bankruptcy and fair credit reporting.

She never filed so the entire loan was never really included in bankruptcy. Is anyone following me here??? Is my train of thought completely off? Don't both signers on the loan have to file in order for the debt to be discharged?

From what I've read online and been told by my bankruptcy attny- Secured loans can't actually be "discharged". The bank just has the right to foreclose at any time now because I surrendered the property. The loan is still open, but I am not legally responsible for it. This is why it shouldn't be reported to my credit file, because I can't be "punished" for something I'm not even legally responsible for.

Even though 2 attorneys have told me this in person, when I post online, there are always people who say they are wrong! So I guess this is really one of those gray areas that are up for interpretation? I"m interested in what the Consumer Advocate attorney that I contacted for a consultation will say now.