EX filled bankruptcy, don't i have to be notified, if were on the same loan

[dafwmademedoit]

HEY NOW, i'm in the beging stages of filling for BK chapter 7, attorney just filled paper work, my first court date is the being of Feruary 08, i had to list all creditors, 1 of them the house which my ex got in the divorce in 06, but she has done nothing to get me off the loan and in the divorce paper work it just say's she get's the house, nothing about me signing over to her or anything, and of cource the loan copany does not care about what court say's. my name on it, i'm still responsible for it, well since i'm filling my attroney has to notified her,,,,,,but she filled for BK in 07 and i never got notified about anything, so what's up with that, her attorney should of have or court should had to notified me,, yes no maybe so ?????

[woeisme]

Maybe they didn't have to notify you because she reafirmed the loan on the house (she didn't default on it or they would have come after you for the payments already.) And then maybe because you don't plan on re-affirming the loan, you want your debt on the house discharged in your BK, they need to notify her so she knows that she's the sole debtor, and as such will be the only owner on the house from this point on since she never filed to change the paperwork. Just guessing though.

[FreshLikeADaisy]

Daf, you should have been notified of her bankruptcy as a co-debtor, because at the time both your names were on the mortgage (if I am reading this correctly). Your attorney will also ensure that she is notified of your bk for the same reason.

But if at the time of her bankruptcy YOU didn't reaffirm and SHE did, I don't see how you can be held responsible for anything unless you're in a community property state (I'm not an attorney, I'm just saying I don't see it).

However, if you do not reaffirm the mortgage as part of your Ch7 (and I don't see why you would, because it doesn't sound like you live there or will have any stake in it) you're free and clear afterward if that debt is discharged without objection. Your bk is for your portion of the shared debt, her bk was for her portion of the shared debt, and I don't believe she can reaffirm on behalf of both of you without a power of attorney or some other authority to act for you, though hopefully someone here will correct me if I am wrong.

Also, the ex can't just "get you off the loan", she has to refinance altogether. If she tried to file a quitclaim deed removing you from the deed right now, bk or no bk, it would trigger the due-on-sale clause of your mortgage and the mortgage company would move for foreclosure automatically. They REALLY don't like it when fewer people are responsible for the loan than signed up originally.

[dafwmademedoit]

First Thank both of you on your comments on my post, and i now understand more,, yes i don't want anything to do with the house, she in one state i'm in another, she remarried and all, yes my kids are there but still, i want to get out from it, and yes both of are names are on the loan, it's throught the Small Business Adminstration, alright then and thanks again,,

[FreshLikeADaisy]

No problem, Daf. And yes, unless there's something substantial left out here, your bankruptcy will not only get you out from under the shared loan by discharging your portion of the debt, it may force her to refinance the loan: the mortgage company will be notified of your bankruptcy (and your surrender of your portion of the jointly held property in divorce) so I doubt they will let the loan stand as is. But frankly -- and I know this isn't always feasible -- she should have refinanced the house after the divorce, or at least when she remarried, to get your name out of the mix. That, and her atty didn't notify you when she filed bk... not so good a situation, and I understand your concern. Good luck!!!

[Dirk Squarejaw]

If she tried to file a quitclaim deed removing you from the deed right now, bk or no bk, it would trigger the due-on-sale clause of your mortgage and the mortgage company would move for foreclosure automatically. They REALLY don't like it when fewer people are responsible for the loan than signed up originally.

I was under the understanding that an individual could quit claim a property w/o being removed from the mortgage.....but it is not advisable to do so. You end up signing your rights to the property away, but you are still responsible for payment but nothing about foreclosure?!? Can you explain? Thanks!

[dafwmademedoit]

Well i gave that F/W some credit, she sneaky, and the town and county she lives in, there way back and stick together, they go five deep when talking about cousins, lol, Mayberry ain'nt got nothing on them, she should of refiance the house one way or another or got me off the loan one way or another, the courts, to me, should have said that in the paper work,, it's like this, i got no kind of custody of our kids, i ask the judge why, he said because you make 31.00 dollars an hour in the state i work in live in,,WTF, then he said next issue, he knew she knew me knew nobaody,,, i just have to watch my back,,,alright then

[dafwmademedoit]

Well i got a Pacer account found my ex fill, her and her attorney hade me listed on some paper work, one had my address correct, but when it came to list me on othere paperwork such as her creditors the had the wrong address ??
just wondering

[emoney]

As a point to all readers in getting a divorce and remaining lible on a real estate note. This is a very bad decision. You should have required your attorney to demant that if your wife keeps the house that she refinance it to remove you from the note.
Otherwise you are still lible and may not be able to another house while you are sill obligated on the home your ex-wife is living in.
regards,
emoney

[FreshLikeADaisy]

Amen, emoney. That's the exact scenario a friend of mine is in (and how I came to learn about due-on-sale clauses).

Dirk, yes and no. Older mortgages that do not include a due-on-sale clause, yes, you can quitclaim your portion of the property away, but are still liable for your portion of the mortgage (incredibly stupid situation to get into, even if it's your kids -- sorry, that's my opinion). But in the late 80s, mortgage lenders started including a "due-on-sale" clause that basically links the mortgage itself to the deed, in that any changes to the deed make the entire loan due (in essence, foreclose). While in either scenario the loan is secured by the property at the time the mortgage is made, this clause ensures that the security isn't quitclaimed right out from under the lender. Google "due on sale" for more info. Hope this helps!

[FreshLikeADaisy]

Daf, good luck to you. I think you will find that you have an advantage in bankruptcy, because bk courts are not the small-town good-ol-boy affairs that local courts can be, esp in rural areas. And yeah, I know all about the law in "Mayberry", unfortunately. Sounds like you got a really raw deal. Good luck to you!!!

[dafwmademedoit]

Well, i guess if nothing get resolved with the house in BK court, i plan on going back to court with my ex on a number of things, so i guess i just have to go that way with the my name being on the house loan, she's remarried and both of them got good jobs for that area and she has child support coming in, belive me i tryed to get my then attorney to get me off the house loan and other stuff, he did nothing, YES i do understand i'm responsible for my own actions,,, look up Harlan county KENTUCKY, and me from Maryland, I'm just an yankee to them,,,DAMMIT-MAN, LOL

[FreshLikeADaisy]

look up Harlan county KENTUCKY, and me from Maryland, I'm just an yankee to them,,,DAMMIT-MAN, LOL

*laugh* I spent many years in NC, some of them rural, yeah, I know exactly what you mean. And no, Andy Griffith ain't the sheriff there either.