My lawyer FORGOTt to Mention!!!!

[kcdunlap24]

most banks nowadays are allowing people to what is referred to as "pay and stay". let's say you never reaffirm and you stay for the next 5 years no problem. your name is and remains on the deed...it's still yours. you can sell it as long as it's enough to pay off the mortgage and any or all liens, again if any.

now, if you intend to stay and NOT pay, which many people do as well to save money for the move, the bank will eventually begin foreclosure proceedings against you. the length of time for the process would depend on whether you are in a judicial or non-judicial state. hence, you hear these stories.."oh my, they stayed in that house 3 years before the bank finally foreclosed"....that's an example of a judicial foreclosure process.

i don't want to add any confusion to your situation. however, the bottom line is you need choices, this is your shot to make certain whether you intend to pay and stay, sell in a few years, or leave at some point and stop paying the mortgage and that is what NOT reaffirming allows you to do, all of those options. whereas reaffirming you are committing yourself to continue as is with no way out without consequences.

We definitely plan to stay and pay.

[tobee43]

well, then if you are absolutely certain and you know this can work for you okay then!

many people pay and stay, but they still do not reaffirm for all the reasons that everyone here on the forum is telling you. however, it is your choice and your final decision on what you think and feel is best for you and yours.

[Floridagail]

Hubby just filed Feb 6, His attorney gave him no warning about creditors.

We found out the filing created instant notices thru the computer to creditors, We pulled his free annual credit report Feb 7, and they had all pulled his credit report on feb 6 also. That was surprizing to me that they got notified that fast. Both GMAC and Ford stopped access to make payments. Boa has not done anything to bank account, but it has only 20.00 in it.

[kcdunlap24]

well, then if you are absolutely certain and you know this can work for you okay then!

many people pay and stay, but they still do not reaffirm for all the reasons that everyone here on the forum is telling you. however, it is your choice and your final decision on what you think and feel is best for you and yours.

I guess I wasn't clear. We are planning to stay and pay but it sounds from what I have learned here that I should NOT reaffirm the mortgage.

I spoke with my lawyer's office and was told that was something we will talk about before next weeks hearing. So, at least now I know if it hasn't been brought up to us I need to make sure we are clear on the answer.

Thanks for your clarifications.

[IBroke]

So, I have to get back to my initial question. Check this out:

"A Middle District bankruptcy court ruled a couple years ago that a mortgage lender could demand an Orlando, Florida homeowner reaffirm personal liability on mortgage debt. If the debtor refused to sign a reaffirmation agreement then the mortgage lender could take the house just as a car lender could repossess a car if the debtor did not reaffirm the car debt."

http://www.bankruptcyorlando.com/201...reclosure.html

Since I'm in the Middle District of FL, I guess we HAVE TO reaffirm. Now, what happens if - due to this ruling - we want to reaffirm but the judge doesn't approve it?

[tobee43]

I guess I wasn't clear. We are planning to stay and pay but it sounds from what I have learned here that I should NOT reaffirm the mortgage.

I spoke with my lawyer's office and was told that was something we will talk about before next weeks hearing. So, at least now I know if it hasn't been brought up to us I need to make sure we are clear on the answer.

Thanks for your clarifications.

good, i'm just saying, if it were ME, i would stay and pay and NOT reaffirm.

[tobee43]

So, I have to get back to my initial question. Check this out:

"A Middle District bankruptcy court ruled a couple years ago that a mortgage lender could demand an Orlando, Florida homeowner reaffirm personal liability on mortgage debt. If the debtor refused to sign a reaffirmation agreement then the mortgage lender could take the house just as a car lender could repossess a car if the debtor did not reaffirm the car debt."

http://www.bankruptcyorlando.com/201...reclosure.html

Since I'm in the Middle District of FL, I guess we HAVE TO reaffirm. Now, what happens if - due to this ruling - we want to reaffirm but the judge doesn't approve it?

yes. IBroke, that's an interesting thought???

[LadyInTheRed]

So, I have to get back to my initial question. Check this out:

"A Middle District bankruptcy court ruled a couple years ago that a mortgage lender could demand an Orlando, Florida homeowner reaffirm personal liability on mortgage debt. If the debtor refused to sign a reaffirmation agreement then the mortgage lender could take the house just as a car lender could repossess a car if the debtor did not reaffirm the car debt."

http://www.bankruptcyorlando.com/201...reclosure.html

Since I'm in the Middle District of FL, I guess we HAVE TO reaffirm. Now, what happens if - due to this ruling - we want to reaffirm but the judge doesn't approve it?

A solution to this that has been discussed in the past is that the debtor executes the reaffirmation agreement and the attorney refuses to sign the necessary certification that it is in the debtor's best interest to reaffirm. If the attorney does not sign a certification, then the judge must approve it for the reaffirmation to be valid. The debtor's attorney asks the judge not to approve. I don't know if this is sufficient under the Florida law. But that articles talks about the debtor's refusal to sign the reafirmation agreement, not the court's refusal to approve it. A FL BK attorney should know how to deal with the situation.

[IBroke]

A solution to this that has been discussed in the past is that the debtor executes the reaffirmation agreement and the attorney refuses to sign the necessary certification that it is in the debtor's best interest to reaffirm. If the attorney does not sign a certification, then the judge must approve it for the reaffirmation to be valid. The debtor's attorney asks the judge not to approve. I don't know if this is sufficient under the Florida law. But that articles talks about the debtor's refusal to sign the reafirmation agreement, not the court's refusal to approve it. A FL BK attorney should know how to deal with the situation.

Thanks, Lady!

I'll certainly bring that up.

Do you by any chance know if it matters if a mortgage is reaffirmed or not when it comes to my right to assume said mortgage as being my mother's son and living in the house in question?

This is the scenario I'm thinking about:

http://www.ehow.com/info_7743647_hap...ower-dies.html

Does the Garner-St. Germain Depository Institutions Regulation Act also apply to non-reaffirmed mortgages? If yes, I guess I will become personally liable for the mortgage once I take over, no matter if it was reaffirmed before or not..

[LadyInTheRed]

Thanks, Lady!

I'll certainly bring that up.

Do you by any chance know if it matters if a mortgage is reaffirmed or not when it comes to my right to assume said mortgage as being my mother's son and living in the house in question?

This is the scenario I'm thinking about:

http://www.ehow.com/info_7743647_hap...ower-dies.html

Does the Garner-St. Germain Depository Institutions Regulation Act also apply to non-reaffirmed mortgages? If yes, I guess I will become personally liable for the mortgage once I take over, no matter if it was reaffirmed before or not..

I could only guess whether the law applies to a reaffirmed mortgage. I am familiar with that law because I do trust and estate administration. But, I have never encountered a discharged mortgage on an inherited property, at least not that I'm aware of.

But, I can tell you that you can only be personally liable for a decedent's debt to the extent of the value of property you inherit. So, if you inherit the home and can't pay the mortgage, the lender can't come after you for a deficiency unless you inherited other assets. If the decedent's debt is discharged in bankruptcy, then they can't come after the heir even if the heir did inherit other assets. The lender's only recourse is to foreclose on the property securing the debt. Neither the debtor's estate nor it's heirs can have personal liability for a debt for which the the decedent had no personal liability.

ETA: If Garner-St. Germain doesn't apply to a discharged debt and you are forced to assume the loan, then I suspect you would be personally liable.

[IBroke]

Thanks, LadyInTheRed!

But, I can tell you that you can only be personally liable for a decedent's debt to the extent of the value of property you inherit. So, if you inherit the home and can't pay the mortgage, the lender can't come after you for a deficiency unless you inherited other assets.

Now does this apply at any point in time after I assumed my mother's mortgage or only initially in case I would elect to NOT assume my mother's mortgage?

So let's say I would take over the mortgage and decide after 5 years of making timely payments that I want to move on, could I walk away even if I would still be underwater by then?

If the decedent's debt is discharged in bankruptcy, then they can't come after the heir even if the heir did inherit other assets. The lender's only recourse is to foreclose on the property securing the debt. Neither the debtor's estate nor it's heirs can have personal liability for a debt for which the the decedent had no personal liability.

Thanks. I was actually thinking about the personal liability once I assume the payment - or in other words, if I would elect to keep the home and take over the mortgage. I was just curious to find out if the sole application of the Garner act would also "transfer" the personal liability of the mortgage to me.

So if I understood you correctly, you are saying that once a mortgage is assumed by a heir, said individual would only be liable up to the amount of what the property is worth. I knew that I wouldn't be liable in case I didn't want to have anything to do with this property and elected to abandon it - but I wasn't sure about the consequences of taking advantage of the Garner act. After all, this act enables me to take advantage of my mother's mortgage - so I was under the impression that I was also responsible for all the duties associated with this loan (making payments AND being personally liable for the entire mortgage balance).

So if I got this right, assuming my mother's mortgage under the Garner act would basically have the same legal effect for me as a non-reaffirmed mortgage would have for my mother (I would keep the house if I continue making payments but if I would decide to walk away, I wouldn't face a liability for a potential deficiency)?

ETA: If Garner-St. Germain doesn't apply to a discharged debt and you are forced to assume the loan, then I suspect you would be personally liable.

Now, if Garner wouldn't apply to a discharged debt, would I have the right to assume the mortgage in the first place? After all, the avoidance of a due-on-sale clause is the main purpose of this act for me.

[pamkev]

Our lawyers told us do not reaffirm our mortgage just stay and pay which we are doing and we heard not one peep from the bank.

Pam

[IBroke]

Our lawyers told us do not reaffirm our mortgage just stay and pay which we are doing and we heard not one peep from the bank.

Pam

In general, that is the way to go. But as LadyInTheRed suggested, there are several ways to get there.

I just e-mailed our attorney to find out more. As soon as I get a reply, I'll let you all know.

[Quiznos1]

So, is there any advantages to reaffirmimg a mortgage or auto loan? If not why do so many lawyers advise thier clients to reaffirm? I have only spoken to one lawyer, over the phone, and he had not even heard of "stay and pay".

Thx

[brokeinfl]

We are in middle district fl, reaffirmed vehicles, but not the mortgage. Didn't realize there was precedent to repo the house. It's been 4 months since filing, haven't heard anything from chase. We were near the end of the vehicle payments, but just didn't want the mtg obligation, just in case.