Ch. 7 Property Surrender & Foreclosure Defense

[FLSTEVE]

If you declare an intent to surrender your house in CH. 7 and have your mortgage discharged, when the foreclosure proceedings do begin, is it okay to then try and use foreclosure defense methods like motion to dismiss & answer/affirmative defenses to answer the foreclosure complaint in order to stay in the house as long as possible? Is there anything to stop you from doing this since an intent to surrender the property in bankruptcy was made? Would the court where the foreclosure is happening have a problem with this (Florida)? Any thoughts are greatly appreciated.

[NoMoreCards]

I am not familiar with Florida law, however if you state you intend to surrender the property and then attempt to fight the foreclosure process the judge will see right through it as simply trying to delay the proceedings. I would think they see this almost daily.

This however is just my thoughts. I wish you the best.

[awayalways]

I would check all your mortgage documents and county clerk files for any problems. In my Florida foreclosure case, the mortgage holder had resold my mortgage note without registering the assignment transfer and they lost the note. So I used these as affirmative defenses in my pro-se summons answer and it took the plaintiff several years to fix this. This is part of the reason why I still have the house after defaulting 34 months ago (and counting).

[AngelinaCatHub]

I am not familiar with Florida law, however if you state you intend to surrender the property and then attempt to fight the foreclosure process the judge will see right through it as simply trying to delay the proceedings. I would think they see this almost daily.

This however is just my thoughts. I wish you the best.

I agree and the Judge is apt to give you a sanction for this little trick. If you wished to keep the house, either you could reaffirm, or "pay through".

It is only my opinion, but you will be on the short end of the stick if you attempt to 'work the system'. There is nothing new under the sun and they have seen it all. 'Hub

[DeadManCrawling]

Here is what I would suggest, and what we are planning:

We are also filing Ch 7 in a couple weeks. I have been studying Florida law and foreclosure law for the last three years.

That means nothing, of course, and is simply to let you know that I have been where you are.

For the means test, which we need to pass (we are higher than median), we intend to say that we plan to reaffirm.

We are behind in payments. Usually this is a nonstarter and dead in the water. However, there are cases in Florida, and our attorney agrees, that suggest a different outcome. we are also trying to work out a modification with our lender, BOA/CW. So, we should be able to use our current mortgage and homeowner expenses to pass the means test.

We fax and talk to BoA every week.

Payments will, supposedly, be made up in the modification.

Meanwhile, once we file and SAY we will reaffirm, we will wait for BoA to send the ACTUAL reaffirmation documents.

We will not sign these.

We get the benefit of the mortgage expense, the home costs, the HOA fees, and the maintenance costs, on the means tests.

Then we do NOT reafirm. And walk away clear.

Attorney says this will work and I have case-law citations to back it up if you care to see them. Just PM me.

It is ugly and fraught with risk, but it can and does work. Results vary and there are instances where this has ended up with the homeowner screwed, but the odds are on your side

Good luck in all you are working on!

-dmc

[FLSTEVE]

It sounds like it is not the best idea. If the foreclosure stay gets lifted and foreclsoure started before discharge, could the foreclosing attorney contact the trustee to inform them that the foreclosure was being defended? Could this jeopardize the bankruptcy proceeding?

[awayalways]

No because both the Federal (BK) Court and the County Circuit (Foreclosure) Court will know when you file for BK anyways so it doesnt matter. The question to ask is, does lender XYZ have a right to foreclose?

Some BK filers surrender their property but are current on their payments and do a ride through. Others are trying to work out an agreement with their lender. Sometimes the borrower does not know who the plaintiff (lender) is because the note was resold. There are many ways to answer a summons which will require the plaintiff to research and reply to the court buying time if that is your objective.

[DeadManCrawling]

Foreclosure timelines are usually much longer than BK7 timelines as well, which is in your favor in Florida.