Who's right ? My Attorney or Bayview account manager

[braincramp]

I'm hoping my attorney is right. Bayview is getting ready to foreclose on our old vacated home and the guy there is saying foreclosing is going to be costly for us because when our chapter 7 discharge ( with no reaffirmation ) was done the attorney didn't get our names off the deed. My attorney is saying I have absolutely no financial obligations in a foreclosure. What's the deal ? Can someone shed anymore light on this ? I'm in Illinois.

Thanks !

[LadyInTheRed]

The guy at Bayview is full of it. Trust your attorney on this. In fact, you should never trust a creditor over your attorney.

Is this guy telling you this to try to get you to bring the loan current? If so, he is violating the. permanent injunction against attempting to collect a discharged debt. Not that you could ever prove what he told you.

[justbroke]

LITR is always right on the money and that's all it is... about the money. The bankruptcy discharged your mortgage. You are not responsible for any part of the creditor's costs to foreclose the mortgage and either obtain title to the property or recoup some or all of the value of the property in that foreclosure. I would make sure that my attorney knows that they contacted me and said that I was "liable" for a discharged debt.

I had to educate a JDB today that sent me a letter from an old pre-bankruptcy debt. I was amazed that she was listening to me and not threatening me. She even first was firm that the bankruptcy didn't matter, then conceded that she didn't know anything about bankruptcy. She allowed me to explain to her and she was genuinely impressed; especially aft4er she asked if i was "the" attorney and I said I was self represented.

(My only concern would be whether Bayview is a condominium or homeowner's association. If they were one of those two creatures, then you are likely responsible for any assessments or dues that have accrue from filing until the property is titled in a different name.)

[bcohen]

What the creditor is claiming is a load of manure. In fact, there is absolutely no way for a debtor to unilaterally remove their name from the deed to a piece of property, inside or outside of bankruptcy! Even attempting to quitclaim the property back to the bank will not work until and unless the bank chooses to accept title, and transfer the deed back to its name. Certainly, choosing the option to "surrender" real property in bankruptcy does not have the effect of transferring title to the bank's name--the bank must still go through the process of foreclosure under the laws of the state in which the property is located.

The only thing which is changed by surrendering (or simply not reaffirming) the mortgage in bankruptcy is that the personal obligation to pay is discharged, and any deficiency balance after foreclosure is uncollectible. And of course, the bank cannot legally report the foreclosure as a separate event on your credit reports. The mortgage must by law be reported as $0 balance owed and "account included in Chapter 7 bankruptcy" or similar verbiage.

[braincramp]

This is what the guy from Bayview said in a email

You we’re advised about the credit ramifications as well as the legal fees for the foreclosure case that will be opened. I am advising you to consult your attorneys. Either the same attorney’s that didn’t finish the process in the bankruptcy and deed the property out of your name or your current attorney’s regarding obtaining representation for a foreclosure. All options remain on the table until a county court contacts/serves a foreclosure case. Please verify your intentions with the property? Please give your attorney’s name and contact information and we will reach out direct. Thank you,

I'm calling BS

P.S. No condo or association involved

[LadyInTheRed]

He even put it in writing! Forward that to your attorney and see if he thinks it is enough to get a judgment against the compant for violation of the injunction. Also, write down right now, in the best detail you can, exactly what he said to you on the phone.

[LadyInTheRed]

Maybe you should respond and ask him to tell you again what your options are.

[justbroke]

This is what the guy from Bayview said in a email

He even put it in writing! Forward that to your attorney and see if he thinks it is enough to get a judgment against the compant for violation of the injunction. Also, write down right now, in the best detail you can, exactly what he said to you on the phone.

Seriously? That attorney put that in a writing! Time to POUNCE! Your attorney should be all over this. That is a coercive debt collection notice. An attorney should know better. I would not even give that person (attorney/Bayview) the opportunity to retract the collection "letter" by sending them a warning letter. I'd just file a Motion for Violation of the Permanent Discharge Injunction. I would do this because this is not a layperson such as a representative in a lender's collection department. I watched a hearing where a "new" bankruptcy attorney was slammed by the Judge publicly for not understanding the stay issues in bankruptcy (on their FIRST time). The "new" attorney said that they were new and didn't understand. Judge still made the new attorney pay the other attorney's fees and nudged this new attorney to go to a forum for new attorneys (which was held in that District). The Judge was nice that the Judge did not discipline the new attorney under Rule 9011 (FRCP Rule 11) so no letter to her file.

Now, the wording is not "directly" asking you to pay, but it is certainly coercive in nature.

[braincramp]

I've saved all his emails. That's a good idea about forwarding them to my attorney.

[despritfreya]

This should be a fun one to watch. Go for it.

Des.

[justbroke]

It's beyond a good idea. This person should not be contacting you by email and writing "coercive" emails trying to get you to pay. This is beyond a simple violation because you now say that there are multiple emails from this attorney. This is an ethics issue as well as an 11 USC 524 Permanent Discharge Injunction issue.

This may be a first where an attorney contacted a discharged debtor about a discharged debt via personal email, not once but several times.

[justbroke]

This should be a fun one to watch.

I'm here biting my tongue!

[braincramp]

I'm sorry if I confused everybody. The emails are from the asset manager at Bayview who bought our old mortgage from BOA.

[bcohen]

This is what the guy from Bayview said in a email

You we’re advised about the credit ramifications as well as the legal fees for the foreclosure case that will be opened. I am advising you to consult your attorneys. Either the same attorney’s that didn’t finish the process in the bankruptcy and deed the property out of your name or your current attorney’s regarding obtaining representation for a foreclosure. All options remain on the table until a county court contacts/serves a foreclosure case. Please verify your intentions with the property? Please give your attorney’s name and contact information and we will reach out direct. Thank you,

I'm calling BS

P.S. No condo or association involved

Am I the only person here having a hard time believing that a person who is a licensed attorney actually wrote this message? Aside from the obvious matter that the ideas being expressed are contrary to the law, and violate the permanent discharge injunction, there are too many spelling and grammatical errors in that purported "attorney's" email. For example, the use of the word "we're" to mean "were", the use of the word "attorney's" to mean the plural of attorneys, the use of the word "direct" to mean "directly", etc.

[LadyInTheRed]

I'm sorry if I confused everybody. The emails are from the asset manager at Bayview who bought our old mortgage from BOA.

I was just looking back through your posts to see if you said it was an attorney and couldn't find it. Still, it is a violation and you have it in writing. As JB says, POUNCE!