Stay & pay

[Chowder]

Fine. I'll share. I'm 52 and I love Beverly Hills 90210.
There. I feel so free with that weight off my shoulders.....

[debee]

The Florida-style ruling has been made in Ohio, Kansas, California and several other States.

Can you post the case references, jb? I'd like to read them.

I'm familiar with the side of the argument that has the rest of the courts not overlooking 521(a)(2) but just not sharing the interpretation of the 11th. Congress removed the "if applicable" blurb which puts an end to the procedural vs. substantive difference based on it, but the only consequence for not performing on the stated intentions that they introduced is specific in its application to "personal property". They could have said just "property". So the argument goes.

I'd be happy to read the cases you alluded to in your post that interpret the code as courts in the 11th have, and I'm sure others would like to read them as well. Thanks.

edit: Just the decisions outside the 11th if you don't mind.

[justbroke]

You may want to read In Re Linderman from Florida which mentions several other States. Also, there is some argument that this really only applies to debts that are not current upon discharge! At least that's the minority view.

Case Citations:

11th Circuit (still good law):
Taylor v. AGE Federal Credit Union (In re Taylor), 3 F.3d 1512 (11th Cir.1993)

7th Circuit (still good law):
In the Matter of Edwards (In re Edwards), 901 F.2d 1383 (7th Cir.1990)

6th Circuit (unknown status):
In re Bell, 700 F.2d 1053, 1056-58 (6th Cir. 1983)

5th Circuit (still good law)
In re Johnson, 89 F.3d 349 (5th Cir. 1996)

State Level:
In Re Steinhaus, 349 BR 694 (Bankr. D. Idaho 2006)
In Re Rowe, 342 BR 341 (Bankr. D. Kan 2006)

[debee]

Thanks for going to the trouble of posting the cases, jb. I was familiar with this group from previous research on ride-through & the history of the circuit split. I was hoping you had a case (outside the 11th) that pertained to real property. (edit: not the cases in the 2nd & 4th that allow real property ride-through)

ps. lol@Linderman. I posted a link to the case earlier in this thread. A ha! Caught in the act of skimming my posts!

[IBroke]

Very interesting - this thread is practically the opposite to des' thread "why reaffirming a mortgage is a bad idea".

This thread tells me I can lose my home although I'm current because I didn't sign a reaffirmation-agreement and the other thread clearly says they can't foreclose when I'm current and I'm only required to indicate the "intention" to reaffirm on my petition and that reaffirming a mortgage is the dumbest thing you could do.

Honestly, I don't know what to think...

[debee]

Very interesting - this thread is practically the opposite to des' thread "why reaffirming a mortgage is a bad idea". This thread tells me I can lose my home although I'm current because I didn't sign a reaffirmation-agreement and the other thread clearly says they can't foreclose when I'm current and I'm only required to indicate the "intention" to reaffirm on my petition and that reaffirming a mortgage is the dumbest thing you could do. Honestly, I don't know what to think...

There's another reaffirmation Des thread specifically referencing the 11th. Did you see that one?


edit: http://www.bkforum.com/showthread.ph...irm-A-Mortgage

[SetMeFree]

What do you indicate on the statement of intention if you do not want to reaffirm?

[IBroke]

Thanks for going to the trouble of posting the cases, jb. I was familiar with this group from previous research on ride-through & the history of the circuit split. I was hoping you had a case (outside the 11th) that pertained to real property. (edit: not the cases in the 2nd & 4th that allow real property ride-through)

ps. lol@Linderman. I posted a link to the case earlier in this thread. A ha! Caught in the act of skimming my posts!

Thanks!

So if you are in the 11th, you can basically say that the "very bad idea"-thread about reaffirming a mortgage is not "up-to-date" since a ride-through is not your choice any more. Let's say you indicate "reaffirmation" on your petition but the lender simply decides NOT to offer you one until your case is discharged. I assume in that case, they can't simply re-open your BK as they please once they decide to foreclose on you although you're current. Reaffirmation is my RIGHT as a debtor, correct?

[debee]

Thanks!

So if you are in the 11th, you can basically say that the "very bad idea"-thread about reaffirming a mortgage is not "up-to-date" since a ride-through is not your choice any more. Let's say you indicate "reaffirmation" on your petition but the lender simply decides NOT to offer you one until your case is discharged. I assume in that case, they can't simply re-open your BK as they please once they decide to foreclose on you although you're current. Reaffirmation is my RIGHT as a debtor, correct?

Good question. I don't know how the court would respond to a tardy creditor coming late to the party. I don't think it's anything to worry about though since even if they forced the case open in order to compel you to act on your stated intentions, you wouldn't be without choices. If the house was worth reaffirming, you could sign. If not, then you get to live rent-free for awhile.

What's interesting to me is that BAPCPA was enacted back in '05 and all the while debtors in the circuits that previously didn't allow ride-thru have been riding thru on their mortgages. Still are. I just don't think we're going to suddenly see a stampede of banks reopening cases and forcing debtors to either sign or quit. The odd mad cow maybe, but no stampede.

[justbroke]

ps. lol@Linderman. I posted a link to the case earlier in this thread. A ha! Caught in the act of skimming my posts!

Nah, wasn't that. LOL I'm very familiar with the Judge in Linderman.

[justbroke]

So if you are in the 11th, you can basically say that the "very bad idea"-thread about reaffirming a mortgage is not "up-to-date" since a ride-through is not your choice any more.

The whole stay and pay "option" is still the way to go even if you are in Florida (or the 11th Circuit).

The real problem is the lender/creditor! I am in a stay and pay, and it says so on my Statement of Intentions. My lender, Bank of America, never questioned it and has not sought an order of the court to enforce the post BAPCPA code and the landmark In Re Taylor case.

Let's say you indicate "reaffirmation" on your petition but the lender simply decides NOT to offer you one until your case is discharged. I assume in that case, they can't simply re-open your BK as they please once they decide to foreclose on you although you're current. Reaffirmation is my RIGHT as a debtor, correct?

The lender is not even required to allow reaffirmation. In any case, it's the lender/creditors right and duty to file a Motion to Compel if you don't follow your stated intentions (or listed no intention on Form 8). This is just how it works. In 99% of the cases, the lender never ever complains about the words "stay and pay" on the intentions, or even "reaffirm" where you don't reaffirm! It has only been the ankle-biters that I have seen ask the court for an order to compel.

Reaffirming a mortgage, in the overwhelming super-majority of cases, is a bad idea.

[IBroke]

....

[IBroke]

The whole stay and pay "option" is still the way to go even if you are in Florida (or the 11th Circuit).

Let's say we will be doing what you did - indicate "stay & pay" on our statement of intentions. The lender doesn't oppose it while the case is still open. The case gets discharged and closed.

Can the lender still oppose the "stay & pay" after the discharge and re-open the case ALTHOUGH you actually did what you indicated on your statement of intentions?

[justbroke]

Let's say we will be doing what you did - indicate "stay & pay" on our statement of intentions. The lender doesn't oppose it while the case is still open. The case gets discharged and closed.

Can the lender still oppose the "stay & pay" after the discharge and re-open the case ALTHOUGH you actually did what you indicated on your statement of intentions?

Yes, and this tends to be the case. However, and I will repeat it because it's worth repeating, only the ankle biters seem to care.

[IBroke]

Yes, and this tends to be the case. However, and I will repeat it because it's worth repeating, only the ankle biters seem to care.

Thanks!

And if you have the "luck" to deal with such a "biter", can you still reaffirm then (as debee suggested)?