Can the foreclosure actually be held against me after the home was discharged in bankruptcy? 11 Answers as of November 12, 2013

Filed bankruptcy due to husband having brain aneurism was discharged in 2009 requested not for home to be included in bankruptcy paid mortgage for 3 yrs. At the same time mortgage, company sold my mortgage. Was notified after paying for 3 yrs. that the house was included in bankruptcy that there is no record of re-affirming the mortgage my credit report shows the original mortgage company discharged this to bankruptcy in may of 2009. I then went out to purchase a new piece of property 1 week before I was due to pass papers on the new property which I was pre-approved of showed the bankruptcy and due to the waiting period of three years I was approved now the US bank NA trustee c/o select portfolio (new mortgage holder) files foreclosure against me for the same piece of property that was bankruptcy and I have been declined my new mortgage because of a mere report for foreclosure on April 24, 2013. Can this actually be held against me after the home was discharged in bankruptcy? Also why did they take my money for three years if this is so?

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Stuart P Gelberg
Stuart P Gelberg | Stuart P Gelberg
You were denied a mortgage because of the foreclosure, not the bankruptcy, so this is not a bankruptcy question. The answer is yes.
Answer Applies to: New York
Replied: 11/12/2013
Stephens Gourley & Bywater | David A. Stephens
Your personal liability on the property was discharged in the bankruptcy. However, you still own the property. They accepted the payments assuming that you were keeping the property. They are now foreclosing because you stopped paying the monthly payments. It is the legal method a mortgage company uses to regain title to the property. To avoid foreclosure you can attempt a deed in lieu of foreclosure or a short sale.
Answer Applies to: Nevada
Replied: 11/7/2013
A Fresh Start
A Fresh Start | Dorothy G Bunce
Bankruptcy law requires all debts to be included. So there is no way to legally "leave out" a mortgage from a bankruptcy. Bankruptcy doesn't entitle you to free house. If you chose to continue to pay for the property after the bankruptcy, you can keep the property. Otherwise, it is perfectly normal to expect that the mortgage company will foreclose. While I can appreciate the fact that you would like to sweep all of this negative information about your use of credit under the rug, foreclosures are public records and no mortgage lenders will approve you for a new loan when you are in an active foreclosure, or indeed, for many years afterwards.
Answer Applies to: Nevada
Replied: 11/7/2013
Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
You need to see a lawyer. 1. There is no requirement to reaffirm mortgage debt. 2. All debt is included, by law. The mortgage was therefore properly included in the ch7. 3. The bankruptcy only discharges your personal obligation to pay the mortgage. The property was still subject to the lien created by the deed of trust. 4. That should have had NOTHING to do with new loan.... so I suggest you see a competent lawyer asap.
Answer Applies to: California
Replied: 11/7/2013
Law Offices of David A. Tilem | Michael Avanesian
The facts you have presented are a little skewed so I can't tell what happened. I assume you filed for Chapter 7 bankruptcy. There is no such thing as "not included in bankruptcy", EVERYTHING must be included and I am sure was included in the bankruptcy. There is also no such thing as "reaffirmation of a home mortgage" in the central district of California, the judges will absolutely not do it. What I would like to know (and whatever lawyer you go with should know) is 1. were you current on your mortgage with US Bank/Select? What does the notice of default say? And, was the foreclosure reported on your credit report? Those are key pieces of information in any lawsuit.
Answer Applies to: California
Replied: 11/7/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Marjorie Guymon
    All debts are included in bk. You cannot pick and choose. As such, your mortgage was included in the bk. You had the option to reaffirm the debt and have your ongoing payment obligation excluded from the discharge but you did not reaffirm. As such, your lender did not report timely pays to the credit bureau. When you ceased paying on the mortgage the lender has the right to foreclose on the property to take the property back and satisfy a portion if not all of the debt. This will be reported on your credit.
    Answer Applies to: Nevada
    Replied: 11/7/2013
    Deborah F Bowinski, Attorney & Counselor at Law | Debby Bowinski
    Your questions don't make complete sense. You say you paid the mortgage payments for three years but you do not say what you did once you decided to move. Did you continue to pay and list the property for sale? Dis you quit paying and walk away from the first property? The lender took your payments and applied them. The property remains in your name until it is sold or foreclosed upon. The bankruptcy discharged the legal liability to repay the mortgage loan. The lien remained in place and enforceable against the property as collateral after the discharge. If you make payments you keep the home. If you don't make payments the lender has the right to foreclose. And yes, a foreclosure on the record CAN affect the availability of new mortgage financing.
    Answer Applies to: Colorado
    Replied: 11/7/2013
    Moffa & Bonacquisti, P.A.
    Moffa & Bonacquisti, P.A. | John A. Moffa
    It seems that part of your question is about your credit score, which I cannot opine about. What I can tell you are a few basics, which your attorney could have told you, which are: 1. You MUST list all of your assets and ALL of your debts when you file a bankruptcy case. You don't get to pick-and-choose which debts are listed. 2. Most large lenders, whether secured or unsecured, check the bankruptcy courts NATIONALLY on a regular basis. So, if you forget to list all of your debts, some lenders will catch this for you. 3. Once you obtain a Discharge, unless you re-affirm a particular debt (usually only a secured debt like a mortgage or vehicle loan), all discharge-able debts (like a mortgage) are discharged. 4. The Discharge removes any PERSONAL liability owed to that secured creditor, BUT DOES NOT remove the lien the lender has on the property. 5. This means that the lender CANNOT try to collect the debt, but CAN foreclose against the property and CANNOT obtain a deficiency judgment against the individual (s) that received a Discharge. My question to you is why did you pay the lender for three years on a Discharged debt? The lender has no reason to reject a voluntary payment you made to it. Your attorney could have save you thousands of dollars if you asked. That is why you hire an attorney - to get good advice. If this debt was Discharged, it sounds as though someone may have made a mistake in reading your credit report since the debt was Discharged years ago. Some people at lending companies do not understand the effect of a Discharge and make mistakes. It sounds like your new mortgage company may have just made a mistake in reading your credit report.
    Answer Applies to: Florida
    Replied: 11/7/2013
    Charles Schneider, P.C.
    Charles Schneider, P.C. | Charles J. Schneider
    Yes.
    Answer Applies to: Michigan
    Replied: 11/7/2013
    The Law Office of Darren Aronow, PC
    The Law Office of Darren Aronow, PC | Darren Aronow
    Any payment you made to the mortgage company was voluntary and they can not report on your credit for foreclosure but they certainly can name you in the foreclosure since you never sold the property.
    Answer Applies to: New York
    Replied: 11/7/2013
    Law Office of Barry R. Levine | Barry R. Levine, Esq.
    There appears to be a common misconception about hones and bankruptcy. All of your assets and liabilities are part of your bankruptcy. Your house, being an asset is listed on Schedule A (real estate). Your mortgages are listed on Schedule D (secured debt). Most times, a debtor retains the house due to an absence of equity for your unsecured creditors or through your homestead having protected your equity. The real question or issue is whether or not you reaffirmed the mortgage in your bankruptcy. The answer is yes, they can foreclose, but no, you will not be liable for any deficiency.
    Answer Applies to: Massachusetts
    Replied: 11/7/2013
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