Green Tree Servicing calling for payment after chapter 7..

[HHM]

There is a difference between having legal rights and enforcing legal rights.

A BK discharge is a permanent injunction against any action to collect a discharge debt. As such, your "best" option is to seek a BK discharge violation (not an FDCPA violation). That would be a much more straightforward approach to trying to "enforce" your legal rights.

[DaisysMom]

I may be a little slow here, but what are they calling about. If you're in the house and you ARE making the payments, what debt/payments are they calling about?

Just curious, it doesn't make sense to me why they would be calling you.

DM

[justbroke]

It's time to start documentation. You need to formerly warn them... typically by correspondence. You need to keep that as documentation as well. Then, you could pursue a stay violation if they are demanding payment and not just reminding you of their right to foreclose. It's always a fine line, but if they are doing nothing but harassing you to obtain payment, that could be considered an attempt to collect the debt.

I agree with HHM in that the U.S. Bankruptcy Court is the best place. In fact, in most Districts, it costs nothing to re-open a case for a stay violation (discharge violation). You just need to first motion to re-open and make sure to mention (somewhere in the prayer for relief) that there is no fee due since this is a dischargeability question and that you are the debtor.

I just recently did this and won my motion through another settlement. Yes, they are out there and yes they may actually bother you post discharge. If you are pro se you really need to understand the formality around bringing a stay violation/sanctions motion for your District.

[Bell30656]

Keep in mind that if you do decide to take some kind of adverse action against them be it in bankruptcy court or other... The only recourse they will then have is to foreclose and put you out of the house. You didn't reaffirm, I don't believe they have an obligation to allow you to continue living there.

[justbroke]

What is so interesting about bankruptcy practice is how it differs from State to State and sometimes even District to District (within the same State). Whether a lender can foreclose upon a home where the payment is current (with a "slow" paying debtor) is a matter of State foreclosure laws.

In most States, you can't foreclose if the person is current. In some States, you can petition the bankruptcy court to force the debtor to take one of 3 actions... redeem, reaffirm or surrender. Florida is in the 11th Circuit and we have no "ride-through" and technically only have those 3 choices. However, it is up to the lender/creditor to seek such a remedy should you not reaffirm, redeem or surrender.

[HHM]

JB, the prohibition against foreclosure from failure to reaffirm is universal, the BK code DOES NOT require reaffirmation of debt secured by real property and in no state is BK a default for purposes of mortgages.

[justbroke]

JB, the prohibition against foreclosure from failure to reaffirm is universal, the BK code DOES NOT require reaffirmation of debt secured by real property and in no state is BK a default for purposes of mortgages.

I was referring to the 11th Circuit where several cases were based on Taylor where a debtor was forced to reaffirm, surrender or redeem. There's a good recent case in Florida where this was upheld. The court forced the debtor to surrender (abandon) or amend their filing to reaffirm (or redeem). The surrender would theoretically allow the creditor to foreclose.

I found it interesting, in that particular case referenced, that the lender could not foreclose due to any constructive default based on bankruptcy. However, the end-run was that the BK court forced the debtor to redeem, reaffirm or surrender. The debtor chose to reaffirm in the referenced case. It would have been interesting if they had actually abandoned the property but kept paying. Perhaps that would be some showdown in the Florida District (non-bankruptcy) court!

See also In re Taylor, 3 F.3d 1512 (11th Cir. 1993). Taylor is still "good law" in the 11th Circuit after the BAPCPA.

It would be interesting to see one of these play all the way out and to test the resolve of the bankruptcy court.

[keepsmiling]

OP, there are a coupla bootcampers in your state:http://www.maxbankruptcybootcamp.com...tes#Wisconsonn
I know opinions on the board are all over the place on this, but...No harm in calling one.