Who is responsible for the reaffirmation request? 16 Answers as of August 20, 2014

I filed chapter 7 and didn't include my home, only credit cards, hospital bills, etc. I was discharged, and NOBODY ever said a word to me about reaffirming with my mortgage company! My mortgage company tells me it is a LAW that they cannot solicit a reaffirmation and my attorney says it is the mortgage company who should have sent for a reaffirmation and didn't. So I am in the middle and didn't know anything about reaffirmation at all. WHO IS RESPONSIBLE for the reaffirmation REQUEST? My attorney or the mortgage company? Is it really a law that my mortgage company cannot solicit the reaffirmation? And lastly what position am I in, regarding my home? I have never missed a payment, but do I HAVE to pay? My 95 yr. old mother is also on the promissory note so will she have to pay if I don't? Loaded questions I know but NOBODY WILL ANSWER ANY OF THEM FOR ME!!! PLEASE HELP ME AND GIVE ME THE ANSWERS!!! THANK YOU SO VERY MUCH!

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The Law Office of Mark J. Markus
The Law Office of Mark J. Markus | Mark Markus
Oh my God....these questions are so basic. If your attorney is not able to answer them, you definitely picked the wrong attorney. First of all, there is no law that a mortgage company can't "solicit" a reaffirmation. That's utter nonsense. But, more importantly, there is absolutely no reason to reaffirm a mortgage and certainly no requirement to do so. Yes, you have to make your mortgage payments if you want to keep the house; otherwise, the lender(s) will foreclose (but you won't owe anything further if they do). If you don't want to keep the house, then you don't have to make the payments. Simple as pie. None of this affects any co-signer's obligations (i.e. your mother). So obviously if you don't pay, she is responsible just as she was if you did not file bankruptcy.
Answer Applies to: California
Replied: 8/20/2014
GARCIA & GONZALES, P.C.
GARCIA & GONZALES, P.C. | Richard N. Gonzales
Reaffirmation Agreements come from the mortgage company. I never allow my clients to sign these agreements. It is not required by the BK Code to keep the home. You are free to keep the home and keep making the payments, or walk away from the home. It is your choice. At 95 years of age, I am assuming your mother has no assets, so she is what we call "judgment proof". They can not touch her Social Security money, or pension money. Assuming your mother has assets, there is no way to know in advance whether the mortgage company will come after your mother in the event of a foreclosure. Sir, I don't mean to be rude, but pay an experienced attorney for one hour of their time. The answers are worth ten to a hundred times this amount! (in my opinion, based on 37 years experience). Good luck!
Answer Applies to: Colorado
Replied: 8/19/2014
Tokarska Law Center
Tokarska Law Center | Kathryn U. Tokarska
I assume you are in California and the property is in California. I don't know of any bankruptcy attorney who would advise their client to sign a reaffirmation agreement on a mortgage. It is simply not in the debtor's best interest to do so and if disposable income on Schedule J is negative, even if the creditor did provide the agreement, and the debtor signed it and returned it to the creditor, and the creditor filed it with the court, the Court is likely to schedule a hearing before the Judge and the Judge will not approve it. The creditor provides the reaffirmation, but again, I would never have a client sign it (most lenders know this so they don't even bother sending it because it's just killing trees ) and if a client insisted on signing a reaff against my advice I would have them sign a disclaimer so they can't come back later claiming that I as their attorney ill advised them. The bankruptcy discharged your personal obligation to pay on the note. HOWEVER, Bankruptcy does not eliminate the right of a "secured" creditor to recover the pledged collateral in the event of non-payment. Secured creditor is one who has received a security interest in property in exchange for funding the loan. A mortgage is secured by the property. If you do not pay they can take through foreclosure. The bankruptcy discharged the debt as to you, your co-borrower remains 100% responsible for payment of loan. How will a foreclosure effect the co-borrower depends on more facts not disclosed in the question.
Answer Applies to: California
Replied: 8/19/2014
Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
First, the statute does not require reaffirmation agreements on mortgages. Second, the law requires you to list all of your debts. The mortgage was included by operation of law (and they find out electronically). Third, it is the lender that sends the reaffirmation agreements. If they wanted one, they should have sent it to your lawyer. Fourth, your personal obligation to pay is discharged, however the property is still burdened by the lien. If you want to keep it, you have to keep paying. Lastly, if you quit paying your motion would still be liable. She did not file for bankruptcy protection.
Answer Applies to: California
Replied: 8/19/2014
Charles Schneider, P.C.
Charles Schneider, P.C. | Charles J. Schneider
Your mortgage company was responsible to solicit not you but your lawyer. That is why we have lawyers as intermediaries. Ultimately it was in their best interest to solicit your attorney. This all begs the ultimate question as whether they wanted you as a customer. Your panic is unjustified continue to make the payments and your grandmother will not be sued. If you cannot then her problem began when she co-signed the debt not by reason of not having a reaffirmation agreement.
Answer Applies to: Michigan
Replied: 8/19/2014
    Ronald K. Nims LLC | Ronald K. Nims
    When you filed the bankruptcy, your attorney should have sent the mortgage company a "statement of intention" which says that you wanted to reaffirm the mortgage. The mortgage company then usually sends your attorney a reaffirmation agreement which you would sign and your attorney would file with the court. If the mortgage company doesn't send a reaffirmation agreement, your attorney should have contacted the company and discussed whether they would accept a reaffirmation agreement (some lenders routinely refuse to accept reaffirmations). Since you didn't sign a reaffirmation agreement, you are not personally liable on the mortgage, however your grandmother is liable and it's a lien against your house. If you continue to make the payments, the mortgage company can't foreclose.
    Answer Applies to: Ohio
    Replied: 8/19/2014
    A Fresh Start
    A Fresh Start | Dorothy G Bunce
    Most bankruptcy judges will not approve of a reaffirmation of a real estate loan because it is not in the best interests of the borrower. And it is the lender's responsibility to offer a reaffirmation, but the lender has no obligation to offer you a reaffirmation, and many don?t. Stop taking legal advice from your mortgage company, because I guarantee you the person who told you about the law did not have a license to practice law, and maybe has no more than a high school diploma. The people who work for mortgage companies have only the interest of the mortgage company at heart and have no regard for the truth.
    Answer Applies to: Nevada
    Replied: 8/19/2014
    The Orantes Law Firm
    The Orantes Law Firm | Giovanni Orantes
    You have a lot of questions. You do have to pay if you want to keep the house. The lien securing your loan against the house is not discharged by a bankruptcy discharge; so, no free house that way. This is a frequent question as to cars and homes, but the answer remains that if you want to keep the collateral, you have to keep paying the loan secured by the collateral. In terms of the reaffirmation agreement, the banks usually are the ones who request the reaffirmation and usually don't bother to sign if the debtor's counsel prepares it. In California, few attorneys would advise you to reaffirm the debt against your house anyway because you can simply continue paying and the bank has to accept the payments. For that reason, you will find that most attorneys do not include effecting a reaffirmation as part of the flat rate they charge for a bankruptcy case. However, many banks do request reaffirmations and some banks refuse to refinance your loan for you if you did not reaffirm during your bankruptcy case. However, you can always refinance through a different bank. If you are giving up the house, then you do not have to pay but co-signers do, unless they get a bankruptcy discharge also.
    Answer Applies to: California
    Replied: 8/19/2014
    Law Office of Shawn N. Wright | Shawn N. Wright
    As a practical matter, mortgage companies routinely send out reaffirmation agreements in Chapter 7 bankruptcy cases. Occasionally, I have had clients who have really wanted to enter into a reaffirmation agreement, and I've had to repeatedly call the mortgage company to remind them to prepare one. Mortgage companies contact debtors' counsel very frequently to see whether or not the borrowers want to enter into reaffirmation agreements. That is totally incorrect that mortgage companies don't solicit them. As far as your obligation to the mortgage company, the bankruptcy discharge has eliminated any personal liability, however there is still a mortgage on your property. So, if you wish to remain in the property, you still have that mortgage to contend with. I don't know what state you reside in, however your mother is a cosigner, and thus, she still has personal responsibility for the loan.
    Answer Applies to: Pennsylvania
    Replied: 8/19/2014
    Idaho Bankruptcy Law | Paul Ross
    First, you are required by law to list all creditors. If you truly did not include your home mortgage, the home mortgage would not have received notice of your bankruptcy. You would be hard pressed to say it was the mortgage company's fault when they did not receive notice. Nevertheless, they seem to have notice now. When you file a bankruptcy, a Statement of Intention is filed which lets secured creditors know whether you are interested in reaffirming a debt. But since you did not list the debt, then they would not have solicited anything. But typically creditors send reaffirmation agreements for Debtors to review and sign. The filing of the bankruptcy provides the notice of the intent to reaffirm (or not) and then the creditor will send the reaffirmation agreement. Your liability regarding the debt is discharged (except for some limited circumstances that do not seem to apply to your facts). But if you want to keep the home, payments will need to continue to be made as agreed upon in the contract. Liability still exists for your mother and if you do not pay, she could be on the hook for any deficiency and will certainly be negatively affected regarding her credit.
    Answer Applies to: Idaho
    Replied: 8/19/2014
    LAW OFFICE OF RALPH L. WILLIAMS
    LAW OFFICE OF RALPH L. WILLIAMS | RALPH L. WILLIAMS
    Normally there is no reason to reaffirm mortgage debt as they cannot file a foreclosure for failure to reaffirm there debt. In California debt there is normally no personal liability on debt incurred to purchase a home. The Bankruptcy discharges does not discharge or remove the secured deed of trust on the home. If the debt is for non-purchase money, such as an equity line of credit on the home, the Bankruptcy discharge does discharge any personal liability.
    Answer Applies to: California
    Replied: 8/19/2014
    Goldsmith & Guymon
    Goldsmith & Guymon | Marjorie Guymon
    You must include all debt, including your home mortgage. This obligation is on you. Normally the lender will send a reaffirmation letter offer to you or your attorney. However, it is not required. Your lender is not accurate that they cannot solicit a reaffirmation agreement. I see it all the time. Debtor's counsel never solicit reaffirmation agreements. I advise my clients not to sign them. You do not have to sign a reaffirmation agreement. You can continue to pay and once paid in full the house will be yours.
    Answer Applies to: Nevada
    Replied: 8/19/2014
    The Law Office of Darren Aronow, PC
    The Law Office of Darren Aronow, PC | Darren Aronow
    Mortgage companies do not generally send out reaffirmation agreements, if you want one you request one. However, I am not sure which district you are in, but most bankruptcy judges will NOT sign off on a reaffirmation agreement anyway unless there is a "substantial benefit" to the debtor, such as a reduced interest rate. The idea of a bankruptcy is to get rid of debt, you do NOT decide that you don't want to include your mortgage, that statement you made is false. ALL debts are included in bankruptcy to give you a clean slate (except few like student loans, child support, etc). SO the notion of a judge letting you add back a few hundred thousand in debt is not going to be signed off by many judges without good cause. So although I believe technically it was your lawyers job to ask for reaffirmation if you wanted, I think you would have paid a lot more money to your lawyer to be denied reaffirmation by your judge anyway.
    Answer Applies to: New York
    Replied: 8/19/2014
    Law Office of Lynnmarie A. Johnson
    Law Office of Lynnmarie A. Johnson | Lynnmarie Johnson
    In Michigan a mortgage doesn't have to be reaffirmed, you just have to keep paying. Therefore some mortgage companies send them and some don't. Most do and give you the choice if you want to reaffirm. All you have to do is keep making the payments and they won't go after your mom. It is not illegal for the mortgage company to send them, and it is definitely their job to send them.
    Answer Applies to: Michigan
    Replied: 8/19/2014
    Law Office of Melissa Botting | Melissa Botting
    Your attorney has answered your question. for some reason you do not believe your attorney. it is the creditor's responsibility to generate a reaffirmation as the creditor has the information required, not the attorney. However, to the larger picture - a reaffirmation is an agreement that you will remain personally liable on a debt. The Texas constitution says you cannot be held personally liable on a mortgage. Therefore, many Texas bankruptcy judges will not approve reaffirmations and the whole debate is meaningless.
    Answer Applies to: Texas
    Replied: 8/19/2014
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    Speak with your attorney due to their knowledge of the details. In my opinion you are ultimately responsible to reaffirm you mortgage or not. You are bankrupting, and must determine your intention. The schedules which you signed would have clearly disclosed the note to the mortgage lender was on the schedules, and subject to discharge. You are charged with having reviewed and understanding the meaning of the schedules when your signed them. Commonly persons do not reaffirm mortgages, but commonly seek to retain possession by making the payments. Your bankruptcy does not wipe out the lien on the house, or the liability of the co-signor. If you do not pay (and your mother does not either) the home will be foreclosed, you will not be liable for any shortfall but your mother will be. Now I am wondering what is the real issue. What were you thinking or hoping to do?
    Answer Applies to: Michigan
    Replied: 8/19/2014
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