Does bankruptcy still protect me if I get a loan modification?
Posted by Robert Weed / in After Bankruptcy / 135 comments
Here’s an email I got yesterday.
“Dear Mr. Weed,
“Just an update. I did receive my clearance and thank you for your help. I have a new question for you. My mortgage on my house was included in my bankruptcy. I have been paying it for the last year. They recently changed my rate and raised my monthly payment by $1000 a month. They offered me a refinance package that would only raise my payments by $400 a month.
“Here is my question. If I accept the refinanced mortgage, am I still covered by the bankruptcy, or is this a brand new loan and would no longer be covered by my bankruptcy from 3 years ago. ”
The answer is good news. The bankruptcy does still protect you. As long as you do NOT sign a reaffirmation for the mortgage during your case (one lawyer says reaffirming a mortgage is “nuts”), then the law still protects you with that lender for as long as you own that house.
(It also protects you from any new company or debt collector who later takes over that loan.)
You can pay for three or four years; and then decide to move out and owe them nothing. You can get a loan modification, pay for a while, and then change your mind and move out and still owe them nothing.
You can sign in blood that you promise to keep paying; and then change your mind and move out and you are still protected.
For how long? People ask me. Until the house is paid for. Once the house is paid for, you can’t give it back to the mortgage company. Why? Once the house is paid for, there’s no mortgage company to give it back to.
(This is an improvement that came into the law in 1978. Under the Bankruptcy Act of 1898, a new promise brought back the old debt.
(Now when you get back to good credit, if you refinance the loan with a new mortgage company–maybe to get a better interest rate–then you have a new loan. And you are back on the hook.)
If you do change your mind and move out, make sure you keep paying the HOA. After bankruptcy, you still owe the HOA for as long as you are the owner of the house.
Dear Mr. Weed,
First off, I commend you for this awesome forum and the fantastic information you are providing! Now for my question:
If I was discharged in a Chapter 7 BK, and then executed a Loan Mod Agreement with my lender, and HAVE NOT reaffirmed the debt, is there any way I could become liable for any future deficiency if I decide to do a short sale or a deed in lieu and the property is still upside down? Likewise, given that BK discharge provides an exemption from Cancellation of Debt income, is there any way I would lose that benefit or become liable for Cancellation of Debt income if I go forward with the Loan Mod, and then later do a short sale, deed in lieu, or let it go to foreclosure?
The loan modification is not a reaffirmation. You can sign in blood and it is still not a reaffirmation. It does not change your bankruptcy status or your tax status in any way. The debt is still discharged in the bankruptcy.
Thanks for your prompt response! I actually have not signed the HAMP Mod Agreement yet, because I wanted to be sure I didn’t lose my BK protections. There is a clause in the Mod Agreement which states: “…the Loan Documents as modified by this Agreement are duly valid, binding agreements, enforceable in accordance with their terms and are hereby reaffirmed.”
Would it constitute an actual “Reaffirmation” of the debt, thus making me once again personally liable, if I execute the Modification Agreement with the above clause in it? (ie. “hereby reaffirmed”)?
Jim: The only way to reaffirm a debt for bankruptcy purposes is to sign a bankruptcy reaffirmation form and file it with the bankruptcy court while the bankruptcy is still going on. So once the bankruptcy is over, you can sign anything they put in front of you and you don’t have to worry. (Except of course, if you refinance the loan with a new lender–then it would be an after bankruptcy debt.)
Thanks again for your response. I am in Missouri. Can I hire you as my attorney to review my Loan Mod Agreement and represent me, as necessary, regarding this issue? Please let me know what the steps would be?
Also, would you please remove my last name, if possible, from my prior comment.
Thank you so much for this wonderful blog. I filed Chapter 7 in 2009 and have been considering refinancing to lock in a lower rate. I now know not to refinance with another mortgage company other than the one I currently have. You have saved me from making a very big mistake. Keep up the good work!
Michelle, thanks for your kind words.
I had started the loan modification process with Chase bank for over a year and during that time, I was given to run around about submitting documents that they had received many times over. I have sinced filed bankruptcy and received a discharge. I want to keep my home. I am still in the modification process and getting the run around about papers but I am more interested in knowing how does my discharge status affect the process, specifically now that my monthly expenses have been reduced significantly. I only have student loans that are currently deferred.
Stephanie: Sometimes it is easier to get a loan mod after the BK, because your expenses are less. Your debt to income ration is good enough that they think if they give you a mod, that you can afford to pay it.
Mr. Weed, I appreciate your sage advice you have been giving on your blog. I was happy to see that I can still claim the mortgage interest on my home loan, I wasn’t sure that I could.
My wife and I filed a chapter 7 bankruptcy back in Sep 2010 and it was discharged in Jan 2011. I’ve been wondering lately if it’s worth it to try for a loan modification on my first before trying to settle on the 2nd. My home value is approximately $240K and my first mortgage is $310K and the 2nd is $40K. I also have a 3rd lien on the house ($145K) from a debt collection company that was a result of a loan that I personally guaranteed for a business loan for my brother. I haven’t paid on the 2nd since the bankruptcy was filed and obviously haven’t paid on the 3rd either.
If my income is such that my 1st mortgage payment is about 17% of my gross income would I even qualify for the modification? My wife and I have had many conversations and both agree that we would be ok with leaving the house if we can’t make the stars align with getting a loan mod and settling the 2nd and 3rd liens.
I apologize for being long winded but definitely wanted to take advantage of asking your advice.
One more thing that I see some of your readers are probably worried about keeping their clearances…I was one of those that thought a bankruptcy would destroy my chances of keeping my clearance but that definitely wasn’t the case. I’ve had my 5 year update in the spring of 2011 and had no issues with the update. Obviously the interview was longer than the ones I’ve had previously but I was upfront with my security folks at my company and everything was documented before I filed the bk.
STEVE: Well, first, there’s no reason to settle with the second unless you also can do something about the third. That one–from the debt collection company–sounds like it might be a judgment, and you can remove judgments liens in a Chapter 7 bankruptcy. Is that’s what it is, see if your lawyer can reopen the bankruptcy and knock it off. But if it’s an equity loan of some kind or mortgage, then no you can’t do that in a Chapter 7.
That takes us to trying for a loan mod on the first. The reason they would give you a loan mod is they would rather get a payment than get the house. Now it’s a lot harder to persuade them to come down if they see that you can afford the whole thing–it’s easier if they know you can’t make the whole payment. But the idea is still the same–come down $300 a month or whatever, or you get the house. No reason not to try.
Once you get the loan mod with the first, then you can decide to settle with the second (and third if you have to.) But if the first won’t come down, and you are prepared to give them back the house, then give them back the house and don’t spend any money settling with the others that’s just money down the drain.
From what you say, it sounds like your employment situation looks good. So the sooner you get this house out of your name, the sooner you’d be able to buy and start building up some equity. Right now you have three different debts standing between you and ever having equity in your house. Maybe you can take care of all three, but if you can’t, time to stop paying, let the first foreclose, move out and move on.
PS Thanks for your comments on security clearances. So many people have “heard” from somewhere that you can’t keep your clearance if you have a bankruptcy. But the people who actually file bankruptcy say what you said–the security interview had a lot more questions, but as long as they documented everything upfront, everything went fine.
Mr. Weed…thank you for your response. I have just one more question about letting the house go to foreclosure. I thought I saw in another post that a foreclosure would show up in the land records and it could have a negative effect on qualifying for a new loan on a different house. Is that the case?
I find your responses very informative and helpful, thank you.
We have an unusual situation. My wife and I were discharged with a Chapter 7 bankruptcy case in the Southwest 5 months ago. We were allowed to keep out homestead. We also had a second home in the Midwest, which we did not reaffirm in the bankruptcy.
Because of the recession, my wife must work in two states to make a living wage. We plan to use the second home as our base in the second state since rents are sky high. Because of this, we applied for a modification on the 2nd home and were offered a government Making Home Affordable modification loan. In the application papers we filed, we clearly put in writing that this is not our primary residence and also told the bank this verbally. The loan qualification states it must be your main homestead, but the bank says they understand our situation and the underwriter approved the loan anyway. At this point, they want us to enter into a 3 month trial period, making payments on this second home.
Should we be concerned that they are offering this loan as an exception, since we do not fit their primary residence qualification?
Also, if we pay the 3 month trail period and than sign a mortgage after that, will the bankruptcy still protect us from a deficiency, if at some later date we give up or short sell the home, since this is a second home.
Several of the bank’s staff also have told us that there is no problem renting out this second home when we are not in the Midwest, since it is our 2nd home. Should we be concerned about that?
Looking forward to your reply
Don’t worry. The bankruptcy still protects you no matter what kind of loan mod you get after the bankruptcy. You can sign a midnight in blood and the bankruptcy still protects you. Good luck.
Wow things must really still be tough in your part of the country that your wife needs to take jobs in two different states. Hope things improve for you soon.
(And yes, renting it out also does NOT take away the bankruptcy protection.)
We want to do chapter 7 but have like 70k in back taxes. We own a business but decided to shut down the 401k plan benefits. Since we owe so much in taxes we want to have the 401k company give all the money from our account (54k) to the IRS so that next years taxes will be alot less. The IRS might even apply it to our back taxes which is fine with us. We dont want the money to count as income and make chapter 7 impossible. The 401k company said we can decide to give 100% of the disbursement to IRS if we want. I know we still have to calculate the 10% penalty I think. Since we giving it all to them I would think the penalty and other taxes associated with the 401k are covered. thanks
I live in NoVa. I was discharged Ch7 in 2010. We are coming up on our two year anniversary of discharge and considering leaving the home we occupy (free right now) to buy on FHA program. Yes, that’s right. Somehow we’ve stayed here not paying a dime as we’ve fought for two years with paperwork. My advice to all: once you start cc’ing OCC, Congressman and FTC-no one wants to touch your file for foreclosure!
Notwithstanding that staying here free for as long as possible is the best option, things have changed. My first, Chase, has offered an exceptional modification. I get I’m not responsible regardless of what I sign. I was wondering, read your posts and now know that! Question 1: If the mod is good for value of home and I can start obtaining equity, should I stay or go without the benefit of credit? How important is credit? One would think that without being liable, if you had $ later, you could more easily buy a vacation or rental property because the other loan isn’t even showing up.
Question 2: I have a second trust that must be eliminated to start obtaining equity. It’s PNC; they seem to work with no one on anything. I’ve read two opinions: (1) never contact them and wait until they call you and NEVER provide financials (2) I’d like to get rid of them, as mentioned, I cannot get equity and despite a nice house at equal rental pricing, we’re not making money. I’m thinking we leave and buy again if I cannot settle.
What should I do? Can I hire you to deal with PNC? I regret not hiring you to begin with for the Ch7 though that went smoothly!
PS-Adding I too hold clearance and am upgrading to beyond TS; Seems to be fine with BK provided you’re honest and it was a reasonable thing to do at the time. Most important part is showing you are doing what’s right from then on until TODAY. Showing you are financially responsible and we all have bad times is OK.
Thank you for your help,
Jenn: Thanks for your excellent post. You are seeing things very clearly and there’s not much I can add to what you have said.
Chase offering you an exception mod means you are in effect renting (but with the tax benefits of ownership) if/when you accept the mod and start to pay again. You become an “owner” building equity, if you can resolve your issues with PNC.
I do not see PNC very often: only two experiences I can mention. One client had a TERRIBLE time getting a loan mod on a first–being told, we will nto work with you, we will not work with you. And then all of a sudden got one. On a second mortgage a client couple was offered a VERY GOOD deal, which could not quite afford. And then PNC offered an EVEN BETTER deal. So that’s all I can add to your research.
PS Thanks for offering to hire me to work with PNC but I don’t do that. I don’t know that I can do any better than you can do yourself, so I can’t charge for that.
My spouse and I filed Chapter 7 in 2009 and did not reaffirm our house….we are now in the process of divorce proceedings….in the midst of this, I am attempting to solely do a loan modification to keep the house and Wells Fargo is requesting a Quit Deed…..does this in any way effect the fact that we did not reaffirm on the house? Can you give me a little more information on whether or not this is the way to proceed?….
If a modification is approved, will that somehow provide basis for reaffirmation?
Once your case is closed, you do NOT have to worry about accidentally reaffirming. Agreeing to a loan mod, does NOT reaffirm the debt. No need to worry. Reaffirming requires very specific paperwork–done BEFORE your case is discharged. So you don’t need to worry about somehow being tricked into it.
A very interesting forum but all is not golden on the other side. I like thousands before me went through BK 7 and signed reaffirmation papers. A month afterwards we found that GMAC has a policy not to reaffim. 3 months out of BK 7 we found ourselves still plummeting and in a last ditch effort applied for a loan mod working with the HOPE people we secured a mod with GMAC.
Fast forward a few years and things have started to look up, BUT GMAC is not reporting our mortgage payments to any of the credit bureaus!! They refuse stating the loan was discharged in BK 7 I protested i modified the loan they tell me that means nothing — the problem here is I kept my end of the deal i have now made 3 years of timely payments and not one of them is refected on my credit score.
Its a catch 22, i need good credit to help me refinance but the folk who can refinace me wont because my credit score is not high enough because they wont report my on time payments AAAARRRGGGHH. Any advice?? Not having mortgage payments reported is a killer, I have tried to refinace and even get small loans but I am always asked why my report fails to show mortgage payments
Did you rebuild your credit by getting three or four credit cards, charging gasoline every month, and paying them in full every month?
You are certainly right that they will not report (legally should not report in my view) your after bankruptcy payments–good or bad–on your credit report. And if you reaffirmed, then they should. There’s an enormous price you pay for that, though. You give up the right to move out and owe them nothing.
Mark, maybe you are one of the lucky ones who now has equity. But most people how filed bankruptcy “a few years” ago have watched the value of the house continue to drop. So the right to move out is real important.
Now, if you need to PROVE you are making your payments–(this is slightly different than having them show on your credit report)–you have a right to ask for that under RESPA. You can right to GMAC and say “this is a qualified written request.” Tell them, “I need my payment history for the last three years.” They have to send it to you.
They have forever and a day to get back to you, though. The Dodd Frank bill shortened that up. Having to actually answer timely a simple question is one of the things that the banks complain about in the “burdensome” Dodd Frank bill.
You tell me you got a loan mod; now you want to refinance. Without knowing more about the value of the house and the amount you still owe–and is there a step up on your mod–I’m not sure what to say about that.
Hi Mr. Weed,
Thank you for being so informative and helpful. Situation: did not reaffirm mortgage in ch7, received discharge in ’08. Put house up for short sale to get out of It rather than foreclose and maintain HOA/insurance. Have buyer and about to have short sale approval. Should we be concerned if there is not any “deficiency waived” verbiage in approval? (FHA) we are in NV a right to deficiency state.
I can’t find help anywhere else please give me some insight. Does the discharged mortgage survive the short sale and keep us protected?
Yes the bankruptcy in 2008 still protects you. It survives the shortsale. Even if they do not waive any deficiency in the shortsale–even if they expressly say you have to pay the deficiency–the bankruptcy will still protect you.
(However, I would be real annoyed if the shortsale papers said you still have to pay; but the fact is it would not matter.)
So that means the tax implications are also still the same from the BK? No 1099c will be required?
Thank you so much for your help.
Ms. Dale Smith
After I filed bankruptcy and it was discharged, but I did do a purpose of intent to keep my house, and the bk was discharged, my mortgage co sold it to another mortgage company, but now the new company is trying to get late fees and fees from before the bk, is this legal?
They can’t come after you directly, but they can foreclose your house if you don’t catch up.
How Can I Save My Primary Residence ?
My Chapter 7 will discharge in 2 weeks I decided I want to keep my home and not surrender. I don’t want to go back in Chapter 13 Just didn’t think things through My Mortgage is 178.56 monthly, mortgage company is attempting Deed In Lieu. They said I owe 1 Year of payments, I’ve paid along with property taxes, and insurance to avoid foreclosure How Can I Save My Home. Why would I owe a Year of payments if they were taken out from trustee
I don’t know enough about your case to understand what you are asking me.
Hello Mr. Weed,
I live in NOVA and I have read through all of your followers responses and yours. Thank you for your advice and keeping it up on internet for others in need.
filed chapter 7 in 2010 received discharge in early 2011 mortgage was not reaffirmed, it was an fha loan. I am now currently behind 10 months payments due to being laid off in mid 2011, i was able to secure a stable and well paying job in late 2011 through presently…the home is in the process of foreclosure, but no date has been set as the process has just started 3 months ago. I received a threatening letter saying hud was probably going to buy and wanted no one in the property at the time of sale. I moved out for 3 months and now just recently moved back in as my landlord fell through on a month to month rental. I am trying to save my house and have mentioned a partial claim to my mortgage co, in which they knew nothing about. If they allow me to do a loan modification or similar, before they forclose and let me resume paying mortgage payments, am i correct in thinking I am still protected in the bankruptcy and if i lost my job again in a year, they cant do anything but exercise their right to foreclose once again? Thank you for any responses you may provide.
Danny: You are correct. If you can work out a loan mod and then later lost your job and lost the place–the Chapter 7 in 2010 would still protect you. They could NOT turn around and come after you for the deficiency (the money they don’t get when they foreclose.)
You did the right thing to move back in. Hope you get the mod–and keep your job–and live happily ever after.
Like many others we claimed a chapter 7 BK 2 years ago. We stayed in our house & have made payments since. We stopped making payments a few months ago & were going to walk away from the home. Our credit has bounced back significantly & we qualify to buy another home but no one will touch us once they know we live in the home we claimed bakruptcy on. They said our credit report will report a foreclosure. Is this true? I thought after the bk they couldn’t do anything else? Just wondering bc I don’t want to burn my credit a second time. We may have been better off to walk away from the home 2 years ago? Thank You
Over a dozen people on my blog–and lots more of my own clients–have asked that question in different ways. Let me start with what I do know–and then go to what I don’t know. (That’s the big one, unfortunately.)
Credit report. Your credit report should NOT show a foreclosure. It should show bankruptcy 2009. It should show nothing after that, if you pay. It should show nothing after that, if you don’t pay.
Foreclosure, if you stop paying, there will be a foreclosure. It won’t (shouldn’t) show on your credit report, but there will still BE a foreclosure.
Regulations, as I read them, say you can’t get a mortgage until three years after a foreclosure. So, if you had filed bankruptcy, moved out, and the got around to foreclosing, you’d have to wait three years after that until you could buy again.
Like many people, you didn’t do that. You stayed in. And kept paying (until recently). There is no foreclosure.
Now you are behind–not behind on your credit report–but really behind. Now I am almost certain you can’t get a loan. Why–they want to see you have made all your housing payments on time during the last six months, and you haven’t. (And because they “know” that a foreclosure is coming–and you can’t get a mortgage until three years after a foreclosure.)
Now, suppose you say, oops that was a mistake, and you catch back up and stay caught up. Then, could you get a mortgage, while you are current again, six months down the road while there’s been no foreclosure?
That’s the BIG QUESTION that I DON’T KNOW the answer to.
There is one person, on one of my blogs, who talks about having done it. There are a bunch of people here who have come close, been told they will be approved, and then something has come up and they lost the loan. Reading the regulations–the regulations are clearly trying to prevent that. Reading them like a LAWYER, it doesn’t exactly say you can’t.
So I just don’t know.
(I’m trying to find out more. One former client, who has been in the mortgage business for a long time, says here’s what you need to do. Besides being current on the house you kept, have a tenant lined up to rent it. Have a signed lease. [Where are YOU living while this is going on??] So you can show there will “never” be a foreclosure. Then you should get approved. He says.)
Mr. Weed, are you aware of any case law that would support your response that if your morgage was discharged in Chapter 7, and no reaffirmation agreement was signed during the Chaper 7, but after the discharge, a new loan modification was signed, that you are still protected by the bankruptcy and the lender cannot pursue you if you later foreclose?
Look at 11 USC 524(c).
(c) An agreement between a holder of a claim and the debtor, the consideration for which, in whole or in part, is based on a debt that is dischargeable in a case under this title is enforceable only to any extent enforceable under applicable nonbankruptcy law, whether or not discharge of such debt is waived, only if—
(1) such agreement was made before the granting of the discharge under section 727, 1141, 1228, or 1328 of this title;
(2) the debtor received the disclosures described in subsection (k) at or before the time at which the debtor signed the agreement;
(3) such agreement has been filed with the court and, if applicable, accompanied by a declaration or an affidavit of the attorney that represented the debtor during the course of negotiating an agreement under this subsection, ….
In Sept 2007 we filed Chapter 7 bk due to a loss of income and received a discharge Feb 2008 and never reaffirmed our mortgage (Chase). Unfortunately, on the same dame the Bk was discharged I was laid off. We knew we would not be able to continue with the huge mortgage payments, so I started the modification process. 6 mod after, I was told that we qualified but that since we were current on our mortgage they could not grant one. She told me to stop making payments for 6 months then we would be given the modification. Obviously, it never happened. I continued the modification process for over a year after the 6 months, even going to several meetings with their lawyers. At the last meeting, their lawyer informed me that I did indeed qualify for a modification at X amount a month, but that it was determined that Chase would make more money foreclosing and that that is what they would advise Chase to do. We immediately listed our property for sale and after 4 months of back and forth successfully short saled it. My question is this: after the discharge, Chase stopped reporting to the credit bureaus. Well, after the short sale they post reported all the years of missed payments and added the statement Sold for less than amount owed in addition to Included in BK. Can they do this? We are trying to buy a house, and were told that they can’t do this and need to get this taken off in order to get the approval. We have been renting for a year now as well. How can I get this removed?
Erin: I’m with you. The bankruptcy SHOULD be the last thing on your credit report. They should NOT update to show the shortsale and the late payments.
Your rights under Fair Credit Reporting, in most cases, only begin when you do a dispute. So you have to get your credit report from each of the big three. One good place is annualcreditreport.com. https://www.annualcreditreport.com/cra/index.jsp (Do NOT go to freecreditreport.com.) Then write in and ask each bureau to do a correction, showing that the debt was discharged back in the 2007 bankruptcy. It would be a good idea to send a copy of your “BK discharge if you can still find it. Send the letters certified and keep a copy. You should also send a copy of the letters to Chase.
If that doesn’t work, send a second letter. If two letters don’t fix it, then it’s time to sue. You can find a, FCRA lawyer at naca.net.
I filed chapter 7 back in 2008 and got my discharge. I decided to keep my primary residence and got a loan modification from my mortgage company. I was wondering if i decided to move and find another home how do i go about this. Do i just leave since the home is not worth what I owe. Does the house go into foreclosure, do i do a deed in lieu, short sale or what. Also my last question is how does this affect my credit if this home was included in the bk. Will it now report as something different on my credit report and make my credit go back down now after i have rebuilt it and have a good credit score. Thank you for your response in advance.
Almost anything should work. Your credit report should show included in bankruptcy 2008 and it should not show anything after that. whether you pay, don’t pay, stay or move. Someone recently posted here that when he did a shortsale, the bank reposted everything and wrecked his credit. They shouldn’t have, but they did.
You can stop paying and wait for them to foreclose. You can go to the effort to do a shortsale. You can see if the bank wants a deed in lieu. None of those SHOULD hit your credit report. (Of course I can’t guarantee what they might do–just tell you what they should do.)
You might find it easier to buy again in a few years if you try to do a shortsale or deed in lieu–compared to just waiting for the foreclosure. Even though it should not show on your credit report or affect your credit score, there will still BE a foreclosure. But that’s the simplest way to go, because you don’t have to do anything.
Hello Mr Weed,
I live in NV, have a discharged ch 7 from 2009, which included a 1st from Chase and a 2nd from Ocwen Loan Servicing. I did accept a remod with Chase, but did nothing about Ocwen simply due to ignorance. From reading here I have learned that they may foreclose on the property whenever they get around to it. Chase recently sold my loan to Ocwen Loan Servicing, who has sent me an itemized statement of what I “owe” and has been calling me for a few days now. Ocwen now has both discharged loans 1st & 2nd. I imagine this is so they can foreclose or to negotiate the 2 loans together for repayment. My question is, if I negotiate with them and reach payment terms, will this be a new loan that they can report on my credit, or still the same loan that I will be protected under my BK? I have read that I am, but I ask anyway because Ocwen sold the discharged 2nd to another debt collector, acquired it again 2 months later, slapped a new acct number on it and started reporting it on my credit as late, which considerably dropped my score. I understand that this debt is attached to the property and is no longer personal, but I have disputed it twice and so far, Experian is not budging. I was wondering what keeps them from doing the same thing again with the 1st now that they own it. At this point, I was thinking it might be better credit wise to stop paying and take the foreclosure than to risk Ocwen putting any more “new” debts on my credit. Thank you for this blog Mr. Weed, you are a true asset to your profession.
It’s time to sue both Experian and Ocwen. Once you’ve disputed it a couple times and they haven’t fixed it, it’s time to sue. They are not allowed to start reporting the bankruptcy-discharged second mortgage as late. You’ve got a fair credit reporting violation and probably a fair debt collection violation, too.
What keeps them from doing the same thing with the first is you suing them. Big companies can be like small children–they need to be constantly reminded what the rules are.
The credit bureaus want you to think their word is law–and it is, unless you fight them. It says something about their power that you would change your plans for your house based on what is (illegally) showing up on your credit report. Time to sue!
Dear Mr. Weed:
I live in Phoenix, AZ and in 2010 I had filed Chapter 7 bankruptcy. With my very first visit with my attorney and throughout my bankruptcy I told him that I was keeping my house. I kept telling him there no problem with my house, right? Even the judge asked me if I was keeping my house and I said yes. My bankruptcy was discharged on June 21, 2010. In March, 2011 I was able to finance a new car which I needed. In February, 2012 I was looking into refinancing my car since I have been paying on it for almost a year. I have also had a credit card that I have always been current on. Not to mention that I have ALWAYS been current on my mortgage since I first got it in March 2001. Actually I have always made an extra payment per year. When the new auto lender for the refinance ran my credit they told me that my mortgage payments are not being reported to the credit bureaus. I had called Wells Fargo to find out why they weren’t reporting them. They told me that my mortgage was discharged with my bankruptcy because I did not reaffirm my mortgage with them. I did not know that I needed to reaffirm my mortgage. I didn’t know the laws of the bankruptcy that’s why I hired an attorney to file for me. I made it clear to him that I wanted to keep my house and not have any issues with it down the road. I called my attorney and he told me that he never has anybody reaffirm. He told me the house is still mine because there’s a lien on the property and I’m on the title. He told me that I am able to refinance, sell, etc. pay off the current mortgage and keep the equity in the house. The only down side of not reaffirming a mortgage is that my payments are not being report to the credit bureau. But, he said that I can rebuild my credit with my auto loan and credit card payments. I really want to refinance my mortgage and get it back in my name. BUT, Wells Fargo has denied my application twice now with the HARP program. Is this true that I can’t refinance because I did not reaffirm? Or is this something that Wells Fargo is sticking too? What options do I have? Also, what is this bankruptcy protection that your talking about? I would appreciate any help or advice that you can provide. Thanks, Roxane
Well probably the advice i would have given you is the same your lawyer gave–I try to make it more clear to everyone than it sounds like it was to you.
You can see a dozen people on different parts of my website who write that they intended to reaffirm their house, but NOW want to move out. If those people had reaffirmed, they would have been in a big mess.
So, when people want to reaffirm the house, I often ask, “is this your Alamo?” “Are you telling me your horse and dog are buried in the back yard and you expect to be buried with them?” i really try to discourage it, because so many people later want to change their mind.
The bankruptcy protection you give up when you reaffirm is the ability to stop paying and when they finally kick you out, not owe them any money. That’s an enormous protection–and it leads me to ask–why do you want to refinance now? Because you can’t afford the house? Then maybe you were smart not to reaffirm.
BUT, if you are saying that you want to keep this house, for years and years, you know you are not going to have to move for any reason, you can afford the existing payment so there’s no danger of ever getting behind–but a lower rate would be nice. If all those are true, then probably your credit score would have been better off reaffirming.
Some people are better off reaffirming and maybe you are one of those.
Why has Wells Fargo denied your HARP application? HARP is not supposed to be based on credit score–so a better credit score if you had reaffirmed would not help you. Is it because the value of the house is so low you are not eligible for HARP? In that case, you are again really lucky that you didn’t reaffirm.
Or is it because you are making so much money that they just don’t want to help you?
Three years after the bankruptcy–you are not there yet–you should be able to shop for a refinance from anybody. If you have carefully rebuilt your credit–and it you have equity in the house.
Your information is invaluable to us. Thank you SO much for posting and updating often.
We filed Chap 7 in Nov 2010 and received discharge in March 2011. Our mortgage was included in the discharge and at the time were in the process of a loan modification (started 14 months before we filed and finally concluded 4 months after discharge). We finally were modified in August 2011. Since then we have had a very large state tax liability which resulted in a tax levy on our checking account. Due to this, we have fallen 3 months behind on our mortgage after the modification. Today, I received a letter (USPS, but not certified) from a local attorney’s office that we owe the balance of the mortgage in full and to contact them within 30 days to either pay the balance or disput the debt (standard collection letter). Obviously, we can’t pay the balance in full…but we also don’t dispute the debt. The attorney’s office also sent a general packet (not personalized) to apply for a loan modification. We are in WI, what can we expect, what should we do to save our home, and if I get caught up before they file legal proceedings or while legal proceedings are ongoing are we okay? Do they have to file legal proceedings on a mortgage that was discharged? The lender is Chase, if that makes a difference.
Thank you again for your invaluable information.
Lyn. thanks for your kind words.
I don’t know how long it takes to foreclose you in Wisconsin or what the steps are. In situations like yours, I have SOMETIMES seen people be able to get a new mod. If you can’t slow them down on your own, you should talk to a bankruptcy lawyer–your same one if you were happy–about how a Chapter 13 would work for you.
Chapter 13 would give you three years to catch the house back up–or maybe five years. (Chapter 13 would also spread out what you still owe in taxes, if you still owe more. that might also be a help.)
So at least two immediate steps. Apply for a new mod; and check with your bankruptcy lawyer on Chapter 13, in case the mod strategy doesn’t work.
I am currently in a confirmed Ch 13 BK in Michigan. My modification request with Chase has been in underwriting, sent to QA and is now back in final underwriting. Does this mean that I will likely get a modification? If so, because I currently have $18K in my Trustee account (which hasn’t been paid to creditors yet). I have a few questions: 1. What is the likelihood that I will get a modification since it is back in final underwriting? 2. Should I dismiss the BK so I can get hte 18K on hand? (I will use it to pay the modification payments) 3. If I’m not granted a permanent modification, can I re-file the Ch 13 BK, if I am denied a permanent modification? 4. For the other debts in the Ch 13, should I convert them to a Ch 7 or leave them in Ch 13? I am appreciative (in advance) as my BK attorney is not very helpful–seems like he just wanted the $$$ and now has washed his hands of my case.
1. Are you likely to get a modification? Based on what you are telling me, it’s moving forward. But I don’t do loan modification for my own clients because I don’t think I know enough about it–I’m not sure anybody does.
2. Should you dismiss the bankruptcy? That’s two questions. Will that speed the modification or confuse it? That’s a shot in the dark either way, but it if it looks like things are on track, why make any move now. What happens if you dismiss? I hope your lawyer has a complete picture of your situation, I sure don’t.
3. And, can you dismiss and refile? The law says that you can, BUT also imposes certain penalties for frequent filing. Your lawyer where you are can look at your situation and, with some knowledge of how the judges where you are feel about that, maybe give you some guidance. What would you be trying to accomplish by refiling?
4. Should you convert to Chapter 7 (if you get the mod, or don’t get it?) I’d spend usually an hour with one of my clients on that question, too.
I am really SORRY that your lawyer has “washed his hands” of you and your case. You should maybe write another letter to the lawyer and send a copy to your state bar. You can just ask the questions you’ve asked here. You need an hour or so meeting with someone who really knows your situation. I just can’t answer at a distance.
This is my reply to your response on April 26 @ 11:06 am: Your BUT, paragraph is very true in my case. I do NOT plan on moving out of this house, for years and years, etc. The house is currently worth more (Zillow – $125,500) than what the original Wells Fargo loan balance ($78,115) is currently at. I do not want to lose the equity that I have invested in my house.
Wells Fargo loan processor told me that I qualify for the HARP program but when it went to their underwriters twice it was denied solely on the purpose that the mortgage was NOT reaffirm. They told me the loan was discharged and I have no personal financial liability to this loan.
In three years after the bankruptcy how can I refinance this loan if it was discharged and I am not personally liablity to it anymore?
Mr. Weed it’s me again, Roxane. I just got off the phone with Wells Fargo and they are telling me since I did not reaffirm my mortgage loan they can NOT do a refiance for me. They said if they were to refinance any debt that was discharged in a Chapter 7 bankruptcy they would be in violation of the discharge injunction and subject to legal sanctions.
Hi Mr. Weed,
I happen to stumble on to your site. Your site is very informative. I do have a question. I was divorced in 2009, our home was given to me in the divorce to remain in with the idea it would sell and then the profits would be split. It never did sell and went into foreclosure. The house is in both my name and my ex-husband’s name. It has been in foreclosure for several years. I am re-married and my current husband and I were in the HAMP process with Bank of America when they proceeded to try and sell our home at auction. I quickly filed for Chapter 7 to stop the sell. The filing for bankruptcy is only in my name noting surrendering the house as part of the bankruptcy. Can I (we), my husband and me try to do the HAMP again after the bankruptcy if my ex-husband agrees? AND is there anything I can do since Bank of America did not follow the HAMP guidelines? The guidelines state if you are in the process of modification and have begun within I think it was 30 days and they have been provided all documentation then they have to remove it from the auction. I am still in the Bankruptcy process right now…meeting with creditors the next event. Any help would be greatly appreciated.
you have two questions I think:
First, can you reapply for Hamp now that you are in bankruptcy. Yes, you can and should. You didn’t say why you were turned down before–sometimes its because your debt to income ratio is too bad. filing bankruptcy improves your debt to income by getting rid of the other debts. so it may be the thing you needed to get approved. Maybe.
Second, you have have any rights because they scheduled a foreclosure sale while you had the Hamp application in? All I can say is I’ve never tried to fight that. I saw a lawyer that I don’t know well try to argue that last week in the bankruptcy court here–and he did not get thrown out on the first day. So there are some lawyers some places who are fighting that. I’m not one of them and don’t know much about it.
Just wanted to check back in with you, in regards to my comment and your reply in the middle of April. You advised me that Chase could not continue to report on the mortgage after we filed & were discharged from Bk. I did contact all 3 credit bureaus, and they have fixed reporting. Thank you for your help!
All of this BK information applies in state of California as far as protection after mortgage was discharge from BK?
That’s Federal law, but you should confirm it with your bankruptcy lawyer there.
Mortgage was included in discharged BK7. Stayed in the property and kept payments current. Decided to short sale 3 years later. Does the BK waive tax liability on forgiven amount?
You can see where I explain the law and the forms here. https://robertweed.com/blog/general-bankruptcy-law/bankruptcy-foreclosure-1099-a-and-1099-c/. There is no tax on debt forgiveness of debts discharged in bankruptcy.
After you look at what I have, talk to your tax adviser about your specific situation. (Sorry, I can’t give you specific tax advice.)
I understand you are citing Federal law, and are also a practicing Virginia attorney. I sought out an Alabama lawyer to confirm this information, and he wanted to charge me almost $1,000 for the information. Can you please confirm that there is no exception (that you are aware of) under Alabama law? I am in this exact situation and have to sign the agreement within the next week.
Was that the lawyer who did your bankruptcy? Then it’s a disgrace!
I don’t think my blog can be any more clear, but I cannot give legal advice in Alabama and I know NOTHING about Alabama law. And I haven’t seen the papers you are signing. My blog is all that I can tell you. Sorry that I can’t add anything.
Mr. Weed, My BK was discharged in Virginia 09/11 and I did not reaffirm my mortgage with Wells Fargo. I am completely up to date on payments and am beginning to think about selling. I will have approximately 60-70K equity in the house. Am I entitled to the profit? Is there anything special I need to do to sell it? There are no liens on the property that I know of. I can’t tell you how much I appreciate your blog. My attorney charged me to do the filing but I got absolutely no advice from him on any aspect of this process. You are a gem, I wish I’d found you first!
It’s all yours–and Wells Fargo Mortgage, of course. If the value has gone up and you can sell it, the equity belongs to you. The lawyer handing it MIGHT want to see a copy of your bankruptcy discharge, so see if you can locate your copy, just in case.
I will try and keep my question (and details) simple and to the point. We live in MI. We did bankruptcy a few years ago. It was discharged in early 2010. We did (after) the hearing date, sign a reaffirmation agreement and mail it back to the lender. This was before it become common to recommend NOT EVER signing a reaffirmation…anyway, we were told it made sense, so we did it. We have struggled to continue to make the payments ever since. But have managed to keep the home. I have a friend who works with a Real Estate Attorney and she (who is not a Lawyer) told me that if the lender (Citimortgage) did not file my docs in a timely manner – i believe they have 90 days? – the reaffirmation isn’t valid. She checked and its not recorded/filed with the court. Soooo, up to now, i have assumed I am probably not on the hook for this home. They finally did say to me on the phone at 1 point recently, that they (Citi) sees this debt was discharged in a bkrcy and I am not liable for it…so i took that to mean, i’m not. Yesterday I came home from work and they sent to us (we didn’t ask for it) a mortgage modification agreement nearly cutting our payment 1/2 – of course the length of the loan goes ON for a unGodly amount of time, however, we are still seriously considering it. Because you can’t rent an the cheapest apartment in my area for the payment we will have. My question is, we won’t be putting ourselves back on the hook for this debt should we modify the terms of the discharged loan? yes, we did sign a reaffirmation agreement and sent it in, but they have never done anything with it. Any input VERY appreciated!! Thank You
Good questions–and great detail.
Your friend is right, if Citi did NOT file your reaffirmation with the court, then there’s no reaffirmation. So you are not on the hook.
That’s the good news.
Here’s the even better news. Signing a loan modification does NOT change that. Once your bankruptcy is discharged, there is nothing you can do that reaffirms that mortgage. I tell my clients you can sign in blood under a full moon at midnight–and there’s still no reaffirmation. So, sign without fear.
The only way, after the bankruptcy is discharged, you can get back on the hook for the mortgage on that house, is if you refinance it with a totally different lender. Nothing you can do gets you back on the hook with Citi.
Thank you so much sir! Someone on the internet who answers a persons question!! WOW! I’m truly impressed! Thank you thank you again! 🙂
I filled chapter 7 on 2011, I got discharged on 10/2011, my case got reopened on 04/2012 (Trustee received my tax refund), and my case is still open ever since.
I applied for loan modification in state of Arizona from my lender Bank of America since I filled for BK.
I have denied for more than 50 times and I am behind of my payments for more than 24 months for over $35,000. Last week I received a deniel letter again with the following task:
We are unable to offer you loan assistance options becasue you have filed for bankruptcy protection and the proposed modified loan terms were not approved by the Bankruptcy Court, or the necessary documentation may violate any banckruptcy discharge.
Please advise me if this is correct answer from Bank of America, or there is such a rule that stop them from giving me loan modification after 50 times applying.
I am an accountant and I have no debt or payment to any creditor, and only hassle we have is to keeping our house.My wife and I tried every ways to get the approval from BofA but every time they denying our case for different reasons.
If my bankruptcy still open, can I apply for loan modification, if I can what should I get from Trustee to make the bank of america satisfied of the documentation they need to approve me fo any loan assistant.
I run into that problem form time to time.
If you are in a chapter 13, the bankruptcy court probalby has to approve the modification and the courts I know around here all will and do.
In a chapter 7, I don’t think they have to and I also don’t think they have authority to. And I was in court Tuesday when one of our judges said exactly that. (The Judge agreed he would enter an order that it did not violate the bankruptcy discharge for there to be a modification. That was the best he said he could do.)
So I have no idea what Bank of America will accept.
I feel your pain, but I don’t know what to do.
According to the last conversation I had with Bank of America by Arizona
Attorney General Office, the BofA mentioned that I need to reaffirm my loan if I need to get approved for loan modification.
Could you please tell me if this is required by law of getting a loan modification when I fillied chapter 7 to get approved for loan modification?
I know probably fifty people who’ve gotten a loan mod with Bank of America after bankruptcy without reaffirming the loan.
Is reaffirmation is required by Law to get approved for loan modification?
I have been trying to get a loan mod from BofA since 2009 at which time I was only 30 days behind on my mortgage. I have applied at least 5 times since 2009 and was told to stop making my payments, so I would qualify for a mod and then they kept saying that they needed this and that and there was something missing in my paper work (I knew I had submitted EVERYTHING they requested MORE than once). I am currently in Chapter 13 Bankruptcy. I filed the a few years ago with my house included in the Bankruptcy and BofA raised my payments $100.00 a month, which caused me to get behind again. My Bankruptcy was discharged because of this. I refilled Ch 13 about a year ago and left the house off of the Bankruptcy this time. I have applied for a loan mod twice since then and of course I am getting the run around AGAIN. So, my (Legal aid) attorney that is providing me with basic services at no charge (Beyond filing fees) has filed a new HAMP application for me and has filed a MOTION TO STAY FORECLOSURE SALE PENDING A DECISION BY PLAINTIFF ON DEFENDANT’S APPLICATION FOR LOSS MITIGATION. Bank Of America is saying that I “Surrendered” the property in my Bankruptcy and that there is no application being considered for a mod. So, they’re asking the court to deny the motion on these grounds. Unfortunately, I can’t afford a private attorney to THOROUGHLY represent my case. It completely disgusts me, what BofA gets away with!
So, my question is…Does the fact that II SURRENDERED the property in the 2nd Bankruptcy mean I have no rights to a modification?
Now I understand your question. What you meant to put on your bankruptcy was that you couldn’t afford your house. But the form didn’t give you that choice, so you checked the surrender box, even though you wanted a loan mod. Now the bank is arguing you forfeited your rights to ask for a mod.
Wow! That’s a new one on me–and probalby a new one on your judge, too. I can imagine some judges agreeing with that. But I don’t know what to tell you to do.
Okay. Thank you for taking the time to read my question and for responding. I have filed complaints with the Attorney Generals office, the Consumer Financial Protection Bureau AND the Senator’s office. (They are currently investigating my case against BofA) Considering what they’ve put me through and the fact that its actually Bank Of America’s fault I never got my mortgage modification to help me keep my home, I sure hope someone listens and cares enough to stop BofA and other large mortgagers from continuing to commit fraud against its consumers. It’s really scary what they get away with.
Thank you again!
I have a complicated situation. I had an SBA guaranteed loan on a business, as part of getting the loan my house was used as collateral. I was advised by a an attorney to file for bankruptcy and it would take care of the SBA loan. As it turns out the loan was discharged in the bankruptcy but it did not remove the deed of trust the SBA lender has against the property. I am now trying to do a loan modification, however I am now being told the first mortgage may not be modified unless we can get the deed of trust from the SBA loan removed. I spoke with the SBA and the lender has been paid for the SBA guarantee but they are still trying to claim full amount of loan. Any advice you have is greatly appreciated.
That SBA loan is definitely a problem. One solution is to make it worth there while–whatever that would be. If you stop paying the first and they foreclosed, the SBA would get nothing. so that’s your bargaining position==whatever you offer is better than nothing.
Is there equity beyond what you owe the first mortgage? If not, you could use a Chapter 13–another bankrupt, not a good idea if you can avoid it–to knock the second off the house.
Different judges have different views about how soon after a Chapter 7 you can come back and do a chapter 13, so you’d need to check that out locally.
I have a question regarding my 2nd loan. My husband and I filed chapter 7 in 2009. We are now getting divorced. He signed a quit claim deed but I am trying to stay in my home. My first got modified and I am able to make the payment however, I am unable to make my payment for my second loan. We modified in 2010 but with my income I can’t afford that payment. I tried to settle but that did not work out. Can they take my home? Does my chapter 7 protect me in this situation?
I appreciate your time.
You’re telling me you are able to make your first mortgage payment, but not the second. You wonder if they will foreclose you form the second mortgage.
More than anything it depends on whether there’s enough equity for the second that it makes sense for them. I explain that in some detail here. https://robertweed.com/2010/03/25/after-bankruptcy-what-if-i-dont-pay-my-second-mortgage/
Thank you for your quick response. I am sorry I left out that information. I owe 277 on the first and 133 on the second. The property is valued at about 350. My kids are 4 and 10. I would love to do a settlement but I don’t have much to offer at this time. The second is with Specialized Loan Service (SLS) and I believe they are a debt collector. I am hoping that by next year I can have something to offer for the settlement. If the value does go up in the home would they forclose even if it was in bankruptcy ch. 7 in 2009? (we did include them in the bk) I am worried that this could happen before I have an opportunity to settle.
Yeah, based on what you are saying, I’d be worried, too. I’m guessing that the value is still too close for them to be tempted to foreclose, but it’s close. Don’t know what that means you should do….that’s what I mean about “nerves of steel.”
Thank you for your free time to post all these replies to those seeking answers, greatly appreciated by all.
We were discharged in 2010, did NOT reaffirm. Received modification and now received a Dodd-Frank letter from Chase to extinguish the 2nd. I think it would be great to have the lien gone but wanted to see if it would be reported on the credit as a charge off or to taxes as income? I believe it should still remain in the initial bk7 but after receiving this letter, I am a bit confused if I should sign and return it to Chase? Do you have any idea how the Dodd-Frank works on the 2nd after the first & second were declared in bk7? Thank you- Maryann
The Dodd Frank certification is that you didn’t steal any money form the bailout. Yes sign it. There should be no tax consequences because the debt was wiped out in the bankruptcy and there’s no debt forgiveness tax on debts wiped out in bankruptcy. https://robertweed.com/2010/02/03/bankruptcy-foreclosure-1099-a-and-1099-c/
And yes your credit report legally should show the bankruptcy in 2010 and nothing afterward.
I explain more about why they forgave that mortgage here. https://robertweed.com/2012/10/29/after-bankruptcy-why-did-bank-of-america-forgive-my-second-mortgage/
I’ve read your posts and comments back to many who seem to be in my same shoes. I think all of what you are saying is keeping in line with what I’ve read online with other attorneys as well. I am wondering though, My husband and I filed a chapter 7 in 2011 and did not reaffirm our home. We are in an adjustable rate mortgage with it set to adjust every 6 months. We’ve applied over and over for a mod and been turned down time and time again. Suddenly after the BK7 discharge, they’ve agreed to mod the home loan. Although it’s not reasonable terms, and we of course like others didn’t find out the final terms until after we had paid the 3 trial payments. We have been told that signing the documents could result in us being liable in court for the home loan even though the debt has been discharged and it’s not a new loan, they were going to reinstate it, with no extension of time, only the time we currently have left on the loan. I’ve contacted my attorneys office and a few others as well, here in Missouri, and was told if we sign the Modification docs and then were to ever walk away we could be held liable for the loan because we in fact entered into a new contract to pay after the discharge. If BOFA decided to sue us down the road, that is if we ended up walking away, then they could stand a chance of winning based on those things. 1. we signed a new contract to pay after the BK was over. 2. we failed to keep the payments up. I know signing seems crazy if we worry about walking away in the future, but the payments are higher than they were before by $186 and we can’t get them to tell us if that is for the back due amount of $7000 in payments or what and for how long the payment will have this extra charge on it. But leaving a home we’ve lived in for 7 years, personalized and have had our children in is a very difficult situation. And we can’t seem to figure out what to tell someone to rent a place either. Folks seem to think you are a no-good for leaving a home you own to rent. Can you advise me on if we would be held liable for the loan after the Modification if they decided to sue us if we walked away months or years down the road? Would the courts see the Modification as us agreeing to pay for the loan, even after the BK discharge? Thank you.
Angela, There are two possibilities. One is that your bankruptcy judge in Missouri reads the law differently than everyone I know and says you can be held liable again after a loan mod. Your lawyer there would know that, I wouldn’t. The other possibility is your BK lawyer just doesn’t want to commit himself to anything and that’s why he won’t give you a straight answer.
I have no way of knowing which it is.
Your research says that what I say here is “in keeping with what you’ve read online with other attorneys.” I don’t know why your lawyer and others in Missouri are not saying the same thing. I just don’t know.
I have a quick question for you, I filed a chapter 7 and was discharged. Since then I was granted a loan modification by bank of America who has now sold it to another company. This new company constantly harasses me even if i’m only a couple days late so my question is is this allowed since I did a modification? Or do they still have to abide by the bankruptcy discharge laws and cannot harass me for the debt regardless of the modification?
Sounds like Greentree, or maybe Specialized Loan Servicing. Yeah, they do that a lot, and No, they are not allowed to. They are still covered by the bankruptcy. (That’s what this blog is about.) If you were my client, I’d have you tell them twice to leave you alone and if they bothered you a third time, I’d go after them for you. I stand behind my work, as I explain here. https://robertweed.com/bankruptcy-five-year-warranty/. I hope your lawyer will, too, if you ask him.
Having the law on your side is nice, sometimes having a lawyer on your side helps a little more.
Thank you so much for your response! And u are correct, it is Greentree. I will definitely be telling them, hopefully only once, but if that doesn’t work I will be contacting my lawyer, I hope he will be as diligent as you are.
Thank you Mr Weed for answering all these questions,hope i can have an answer to my situation. i was discharged in ch 7 a few months ago i didnt reafirm my home.bank of amer held my mortgage so now i get a call from greentree asking if i want to keep it and fill out a loan mod. if i do this with the now greentree will i be held responsible,youve answered this question in many forms but i was discharged with boa. as my sevicer,now the sold to green tree thank you again for this forum.
Same answer. Getting a mod with Greentree does NOT lose the protection of the bankruptcy. You can still change your mind later, move out and owe them nothing.
Great blog Mr. Weed.
I got a Chapter 13 discharge back in 2008 with no reaffirmation. Have now become delinquent again. My stupid servicer has forgotten the debt was discharged. They have sent all kinds of collection letters and never stopped reporting to the credit bureau. But my primary question concerns whether the note and mortgage I originally sign still govern the transaction. I expect a foreclosure notice soon and am curious as to whether my note and mortgage still give me the legal protections stated in the agreements.
For example, if there are conditions precedent to foreclosure stated in the note and mortgage, do the conditions still apply? Or can they now rush in and foreclosure with almost disregard for rules and regulations? My mind imagines a judge being very willing to award a quick judgment since the debt has been discharged. I want to fight the foreclosure to buy more time in my home. I’m in a judicial state.
I’m not as sure as you are that that mortgage was discharged in your Chapter 13. If you used the chapter 13 to catch up the mortgage, then at the end it’s NOT discharged. I also don’t know anything about the procedures in judicial foreclosure states.
You need to talk to a lawyer where you are. But I’m thinking you need to look at whether you need to do Chapter 7.
I agree Mr Weed. The issue is raised however because the servicer, out of the blue, sent a letter saying the mortgage was NOT reaffirmed. AND, they said they were going to wipe out all previous reporting to the credit bureaus. Threw us for a loop. But I think it may be an issue of the servicer continuing to be very confused and unfamiliar with law and regulation. We kinda want the debt to have been reaffirmed (i.e., reorganized via the bankruptcy) as we do plan to file a chapter 7 at some point. Appreciate your time.
I wish you had a subscribe button Mr. Weed. I surely would subscribe.
My GMAC Mortgage was discharged in a Ch.7 in Feb. 2012. I surrendered the home in the bankruptcy, but GMAC filed bankruptcy and never came to get the house. I have been living in the house for free and paying the HOA monthly fee. I just received a letter from Ocwen Loan Servicing LLC assigning me to a mortgage assistance relationship manager and requesting that I call to make an appointment with this person. He is in their bankruptcy dept.
In February 2013, I received a letter from Ocwen introducing themselves as my new loan servicing company. Two weeks later, I received a letter apologizing for that letter, saying it was sent by mistake and that Ocwen was not my loan servicing company.
Then, I got a notification a couple months ago that I was included in a Class Action Suit against Ocwen as a result of the February 2013 letter. My question is: should I contact Ocwen about the letter I received January 7, 2014 in regards to contacting their assigned relationship manager in their BK dept.? If they try to foreclose now and take the house, won’t they still have to go through the state of Maryland foreclosure process which takes about 4-6 months?
Is there anything I can do if I want to keep the house?
Yes they still have to go through the State of Maryland foreclosure process. I don’t know how long that takes but 4 – 6 months sounds about right to me.
Two things you can try to do to keep the house. You could file Chapter 13 and get five years to catch it up. Sounds to me like you are too far behind for the math on that to work.
Or, you can try to get a loan mod. I’d contact the person in they January 7, 2014 letter and see if you can apply and maybe work something out. Good luck.
I live in Id. Had a chapter 7 discharged in Dec. of 2012 where we included our first and our second mortgages and now I want to refi on just the first. We did not reaffirm on either mortgage. We have about $60,000 in equity which we hope will set us up for doing a refi but what happens to our second mortgage is still unclear. We have also had a perfect payment history on the first since we filed for BK. We do not have to pay the second but our lawyer told us the only way they could come after us for anything is if we sold our home if there was any equity. Lenders we have spoken with are unsure about the second mortgage lenders rights if our first will be technically paid off for a brief time before we sign to refi and would it give them first dibs on equity? Our first is 240,000 and our second was about 71,000 at the time we filed. I now understand by reading your website that a new loan will put us on the hook for the first once we complete the refi. Any help would be great. Thank you.
Obviously you’ve done a lot of work and research. I understand the lenders who don’t want to refi you. During the brief time the first is paid off before the refinance is put on, the second mortgage drops into first place. At least that’s what I think. (I certainly do not know ANYTHING about Indiana property law.) You might see if the second will accept a compromise. I talk about that here. https://robertweed.com/2010/03/25/after-bankruptcy-what-if-i-dont-pay-my-second-mortgage/. Since there’s a lot of equity for the second to hold on to, I’m not confident that they’d give you a good settlement. But that seems to me to be your next step.
I hope you know how much we appreciate you and your awesome information. Now that Ocwen, as of Dec. 2013, has to do the 2 billion dollar settlement in regards to wrongful foreclosures and other bad mortgage practices, do you think it will be easier to get a modification from Ocwen? As part of the agreement, I read Ocwen has to do 2 billion in modifications beginning January 2014. What’s your interpretation of that? I live in Maryland.. I discharged a $552,000 GMAC mortgage in the BK. GMAC filed BK, sold my loan to Ocwen. I have been in the surrendered house since Feb., 2012/discharge date. The home is now worth $290,000. I think what Ocwen has to do under the settlement is some principle forgiveness. What’s your take on Ocwen and the settlement? I got a letter from them informing me about submitting a modification package for HAMP. I plan to contact them as you told me in an earlier post. Just want to hear what you know about the settlement.
Sorry, I forgot to add this: Ocwens just sent me a letter stating that my hazard insurance has expired and they want me to sign an impound escrow that says I will pay Ocwens back for paying my hazard insurance with my old insurance company, or they will get hazard insurance on the house which will cost double. The hazard and taxes were included in my monthly mortgage payment prior to the ch.7. I continue to pay the HOA, but I didn’t think I was responsible for the hazard/taxes because they were included in the mortgage payment prior to the house being surrendered in the BK. As I said before, I am still living in the house and getting ready to start the modification process.
Thank you for providing this website I think I already know my answer from reading others situations we filed ch 7 discharged almost 3 years ago did not reaffirm our mortgage, before bancrupcy started we were in the process of the harp program (ohio)with citimortgage when we filed ch 7 citi then said immediately we were no longer eligible for harp because of ch 7, then sold our mortgage to nationstar who said we could still do the harp just to reapply so we did and got approved after discharge, since then we have always made our payments on time. 3 weeks ago my father passed away and my mother asked me to move in with her, only problem is our loan is higher then the value of our home, I called my bancrupcy lawyer and asked about walking away from the house he said he wanted me to make an appointment and bring my harp contract with me. I explained it was a loan mod ( harp) and not a refiance and he still wouldn’t give me a straight answer. I called my mortgage and am waiting on a copy of the harp then have to wait to see my lawyer which could take up to a month or so and I need to move sooner then that. So am I correct in saying I can’t be sued I am still protected under ch 7 reguardless of signing a harp contract.
Maybe some judge somewhere sees it differently, but I think the law is really clear. The bankruptcy still protects you.
(It would be a good idea though to follow up with your lawyer…a really good idea.)
Hi Mr. Weed,
My Chapter 7 BK was discharged in 2009. I have always wanted to keep my house. I have never been late with any of the payments on either loan. My first mortgage is with Citi and I have a second which is a HELOC with BofA. Both were included in my Bankruptcy and were not reafirrmed. My HELOC is going to lock in in September 2014 and I will have to start paying $400.00 per month and not $139.00 per month which I have not had a problem paying. I have tried to get a loan modification with Bof A, but they will not work with me because right now I’m able to pay. I would like to take advantage of the lower interest rates and would like to combine my first loan with my HELOC. Citi says they can do this for me. The problem I’m personally having is I will be losing my job in July 2014 and I’m not sure if the refinance is is something I should proceed with. If I do the refinance with Citi and combine both of the mortgages into one what happens if I can’t find a job and can’t make the payment? Should I just wait until after I lose my job and see if I can get Citi and BofA to do loan modifications? I’m very confused, but know that I won’t be able to make that $400 payment once I’m unemployed and I’m very afraid of losing my house.
It’s a great thing if Citi is telling you they can refinance your first mortgage and roll in the second; and maybe there’s enough equity now to do that. I’m afraid when it’s time for final approval they will decide they can’t do it because of the bankruptcy.
You might see if a mortgage company who was stranger to the bankruptcy can refinance the whole package. Sometimes its easier for them. But of course they will want to see there’s some equity there.
You are in danger of lying on your loan ap though if you know you are aobut to be laid off–you don’t want to do that.
Getting a loan mod can be tricky. They can turn you down for making too much money–that’s what’s happening now. And can also turn you down for not making enough–that’s the danger when you are unemployed.
Those are things to keep in mind–no obvious solution, though.
Dear Mr. Weed,
I had to file for Chapter 7 in December of 2013. I received my discharge this past week and I did NOT reaffirm my mortgage with Chase. When I filed for Chapter 7 I also applied for a Home Loan Modification with USDA
I received my discharge last week, and then yesterday received the approval for my loan modification with Chase. I had to file Bankruptcy Pro Se and have nobody to turn to.
Before I sign the agreement and send that in I want to make sure I understand what I am reading. Since I received discharge prior to executing the modification, that means I make the payments on time but if I can no longer afford the home or need to move, I do not owe the bank anything else other than they take the property?
How will this effect my credit? I am a single Mom who is permanently disabled and have a 6 year old special needs child so I need to make certain that I am doing the right thing and what the consequences may be.
Thank you SO much for your time and I really appreciate this web site!
Right, you have read correctly what I say here.
No impact on your credit which will/should show bankruptcy $0 whether you pay or don’t pay or anything in between.
Glad I could help.
Dear Mr. Weed,
Filed Chapter 7 in CA in 2008 and discharged March 2008. 1st mortgage never reaffirmed. March 2013, I modified 1st mortgage (Held with BofA). In October 2013, BofA sold loan to Resurgent Mortgage. October 2013, Resurgent reported new account under bankruptcy on my credit reports. As of November 2013, I now have duplicate mortgage accounts with different account numbers listed as included in bankruptcy for the same debt. In March 2014, Shellpoint Mortgage acquired Resurgent. As of March 2014, I now have three mortgage accounts for the same debt reported on my credit reports (BofA/Resurgent, show BK7, transferred/sold; Shellpoint shows and lists payments and a balance being made under a payment plan, status negative). I have disputed to no avail. They respond that they are within FCRA. I have been attempting to refinance since late last year, and my score keeps dropping every time they add a new account line. Is this allowed/correct? Thanks in advance!
No, that’s not allowed. You need to find a lawyer near you who does Fair Credit Reporting law. The place to look is here. http://www.naca.net/find-attorney. Good luck!
David – I had the same problem with Ocwen Loan Servicing. I was relentless with contacting their bankruptcy department and I also filed a complaint with the consumer financial protection bureau( http://www.consumerfinance.gov/). It took over a month of persistence but all negative and inaccurate credit reporting was recently removed from all 3 credit bureaus. Good Luck.
Is this law the same for the current year of 2014 and for the state of Michigan? I recently was discharged in a chapter 7 bankruptcy. I did not reaffirm my mortgage but will continue to make on time payments and live in the home. If I participate in a loan modification program after discharge will I become legally liable for the property again or will my home still remain as included in bankruptcy? Thank you, Elizabeth
Yes, that’s the same everywhere. After your discharge you can keep up the payments and keep the house. If you get a loan mod, that’s great. But a loan mod does NOT undo the bankrutpcy protection. You are NOT legally liable for the property again. You can still move out and owe them nothing.
Thank you for your response, your blog has helped me so much. I was reading a blog from one of your followers where he filed 7, was discharged and did not reaffirm his home but kept it and kept the payments current. He then stated that about a year later his mortgage company raised his payment $1000.00, What my question to you is can our bank change our interest rate or the terms of our current 30 year fixed mortgage agreement even if we are current on the mortgage, but we did not reaffirm our mortgage? Thank you in advance. Elizabeth
The original agreement is still in force against the PROPERTY. So if the mortgage had a step up or adjustment, those will still happen.
Mr. Weed, thank you so much for this blog. I believe I may be on safe ground with all the different posts I have read here. None the less I must ask. I am in the state of Florida and I gave up my house in BK7 discharged in April of 2010 but stayed in it and never reaffirmed. During the foreclosure process I was re-employed and modified the loan under HAMP with loan Servicer AHMSI in June 2011. A year later I get a letter from AHMSI stating my new mortgage company is Homeward Residential. I pay them for six months until December 2012 and they sent me a letter stating my new mortgage company is now Ocwen. At this same time I go into default with the HAMP modification because I lost my job. I was collecting unemployment and after six months of trying to make Ocwen understand that I qualified for the Unemployment Compensation Forbearance they finally gave it to me. Here is my question, the forbearance has now expired I paid accordingly and since I am employed again I applied for the HAMP modification again and it was denied. However they are now offering me a “Shared Mortgage Appreciation” loan through Ocwen. If I sign these documents am I still protected under the BK discharge or would this be considered a new loan and then I’m back on the hook? I tried to get an answer from Ocwen’s BK dept. and the answer I got was “I don’t have the answer to that” you have to ask your relationship manager whom I had already asked and also didn’t know. This modification reduces the principal balance to the house’s current value and the reduced amount is deferred and forgiven over a three year period provided payments are on time. The catch is the owner of the loan gets 25% of appreciation value if I sell or at maturity of the loan. These modification terms are different than the HAMP modification terms but there is no mention of reaffirmation thus my question and concern. Thank you in advance for any help you can shoot my way.
As long as part of what you are doing is refinancing an existing loan with your existing lender–and that loan was in the bankruptcy–then the bankruptcy still protects you.
Here’s the text of the law.
An agreement between a holder of a claim and the debtor, the consideration for which, in whole or in part, is based on a debt that is dischargeable in a case under this title is enforceable only to any extent enforceable under applicable nonbankruptcy law, whether or not discharge of such debt is waived, only if— such agreement was made before the granting of the discharge under section 727, 1141, 1228, or 1328 of this title;
Hi Mr. Weed,
My foreclosure is set for 2 weeks from now. I’m a resident of Georgai. I’ve gone back and forth with the mortgage company for 6 months only for them to deny my loan modification twice. The first denial stated that I had too many expenses, the second time they denied stating that I already had a modification in 2013. I’m now attempting to do a short sale, hoping to delay the foreclosure, but haven’t turned in all the paperwork.
My only option is to move or file Chapter 13. I really don’t like the restrictions of Chapter 13, especially taking your tax refund. I’m a single mom and I need the earned income credit. But I would deal with it at least until I’m able to re-apply for a modification at the 2 year anniversary which is 6 months from now.
My question is, if I file a Ch 13, convert it to ch 7, then apply for another modification, would the arrears then be included in the loan mod? I understand that this may be risky, if they still don’t approve it then, but I’m really at odds on what to do.
Thanks so much for any info you can provide.
Thanks for your question. In Virginia, I’d think about putting you into a Chapter 7 now–because I don’t like Chapter 13 for the reasons you don’t like it. But a Chapter 7 might get you the 6 months you need to get two years past your last modification.
Also the Chapter 7 will help your debt to income ratio which may be why they told you “too many expenses.”
But I don’t know nearly enough about you to pick what’s best.
Please talk to a lawyer there in Georgia right away.
Now I don’t know nearly enough to know about what’s best for you.
Dear Mr. Weed,
We had a ch.7 discharge in 2010, and did not reaffirm. We have a 1st with PNC and a 2nd HELOC with Chase. Both mortgages were modified in house in 2011, however Chase modification only gave relief of $75.00 a month. At the time, we did not have enough income to qualify for HAMP. Due to medical expenses, stopped struggling to make Chase payment in February 2012. June 2012, Chase charged off loan and sent to Five Lakes Agency, who has called every week since leaving a message asking our intentions. Those calls stopped about 4 months ago after I made them a settlement offer of pennies on the dollar. CMA obtained February 2014 showed house worth $156,000-$165,000. We owe about $120,000 on first and $65,000 plus fees on second. We want to stay in the home, but wonder if Chase is waiting til the market comes back to foreclose. We are financially better off now, but still cannot afford the HELOC payments. Should we attempt a HAMP modification on the first and then the 2nd, or would it not be allowed on the 2nd because we are so far behind? Or do we continue to wait and hope they will counter on my settlement offer? Any suggestions you can give will be greatly appreciated. We are in Virginia. Thank you for your help.
I’d go ahead and try a HAMP again on the first–you have nothing to lose.
I do think Chase is waiting for the market to come back more. But maybe your income will come back by then or maybe they will accept a settlement. There, you have nothing to lose by sitting tight.
I received a letter from Chase in the mail today. It is puzzling because they state that they received our bankruptcy information and are monitoring our account, and if we need mortgage assistance they may have options for us if we are behind in our payments or want to satisfy our lien. They also state that we may make voluntary payments if we want. We did an in house modification with them after our bankruptcy. We stopped making payments almost 3 years ago. They charged off the loan 2 1/2 years ago and sent to Five Lakes Agency. Why then is it now back with Chase? And why are they acting like we just went through bankruptcy and they just received that information for the first time? Chase refused to negotiate anything after they charged off in 2012. Could they just be fishing for any information we are willing to give? Or maybe they are ready to negotiate? I would think they would have made an offer if that were the case. Any insight would be greatly appreciated.
My GUESS is that form letter means they are ready to negotiate.
Recently BOA sent me a modification stating that HUD guidelines have changed and I might be eligible! I was dismissed from my Bankruptycy do to an car accident and I just couldn’t afford my bankrupty anymore! My home was apart of the bankrupty and I’m in the process of moving out of the home! Should I contact them about what they sent? They sent it Fedx! They sent one one day and then a week later sent another one by Fedx! Can I get a mod after I’ve been dismissed for nonpayment of my bankruptycy?
At least some of the time you can–and why not try, if you want the house.
I have a question that I’ve not yet seen answered here regarding Chapter 7 protection on a subsequent loan mod. Our Chap 7 case was discharged in early 2011 and we did not reaffirm our home loan. Since that time I became temporarily unemployed and we qualified for an unemployment deferment which allowed us reduced loan payments for a year. On the other end, I am re-employed and we have now qualified for a loan mod (same home, same bank) and are about to sign paperwork. Connected to that loan mod is an interest-free HUD Partial Claim which brings the loan current, in the amount of $17,000, which is due and payable at completion of the newly modified loan or at the sale of the home. If at some point we walked away from the home, I understand that the Chap 7 bankruptcy with no reaffirmation protects us on the newly modified 1st mortgage, but does it also protect us on this HUD Partial Claim or is that a separate issue? Thank you so much for your help.
I have to say I’ve never seen a HUD Partial Claim. I’m not sure what they are. So my answer is I don’t know.
I got approved for Florida hardest Hit program.. They paid $18,000 towards my past due and they were to pay a full year of mortgage payments. I choose to file bankruptcy 3 months into the program. Lawyer said it was ok to do so. I am now disqualified for the program!!! They were paying my mortgage for another 9 months.. Now nothing! Can I cancel my fiiling of bankruptcy?
Sorry I know NOTHING about the Florida Hardest Hit Program. (Apparently your Florida lawyers didn’t either.)
I don’t know what to tell you.
Does the comment about not losing your bankruptcy protection if you refinance with same lender apply to New York State as well?
I really appreciate you answering the looming questions that others have posted regarding their situations. We filed CH7 back in 2014 discharged and did not reaffirm our mortgage. We stayed in our home during foreclosure process and our loan was bought by Bayview from BOA. Bayview setup a loan mod for us showing no past payments due basically starting from scratch showing the original amount of the loan on the house. We received a 1099c this year stating that we are liable for 75k due to the loan modification. From what I’ve read we are not liable for that amount because of the CH7 discharge. Is this correct and does the CH7 protect us? Is this actually correct what Bayview is providing? I’ve called their customer service and advised them that we were cleared of the debt through the a CH7 discharge .. They are currently investigating. Any insight would certainly be appreciated. Thanks again!
I’m not a tax guy, but I agree with you that there should be no tax on the $75 forgiven in the loan mod, because of the bankruptcy. I have mroe about that here, https://robertweed.com/2010/02/03/bankruptcy-foreclosure-1099-a-and-1099-c/, including a link to the IRS form you’ll need to go over with your tax guy.
I bought my condo in New Jersey in 2005 for $125,000 and had to take a second mortgage in 2006 for $35,000. I declared a chapter 7 in 2009 but I was current on my 1st mortgage payments so the trustee abandoned the property back to me and because I had no personal liability anymore on either mortgages, I just stopped paying the second mortgage and kept up with my 1st mortgage payments. I got very sick during the great recession time and did not pay any mortgage for almost 3 years. The bank never foreclosed. When I got better in September of 2013 I did a HAAM Loan Modification where my bank deferred over $45,000 (Money I did not have to pay on now) They then did a 40 year fixed on the remaining amount of around $110,000.00. (This was money I was paying now). The loan was not reaffirmed in this loan modification but because of missing so many payments and the price of homes dropping by 2015 I had negative equity of about $50,000.00. I tried to make things work but I also owed over $12,000 to my HOA and they were threatening me and I had massive medical bills and other bad debt so I decided in 06/2015 to declare a chapter 13. I put all my debts including my HOA into the chapter 13. It has been one year and making ends meet are still so very hard. My Question is this “If I should drop the chapter 13 and surrender my property if my house was sold in any way (Foreclosure Short Sale) would I be liable for any Judgement Deficiency’s on anything? I am afraid I may because the Chapter 7 was discharged 8 years ago and my Figures of what I owe now are so much higher and I did a loan modification.and a chapter 13. Am I still protected with my BK1 from owing a deficiency?
Yes, like my blog page said, the loan mod does NOT get you back on the hook for the mortgage. You can let the house go and owe them nothing. Your problem, you told me about, is the association. If you just let the house go, you owe the hoa. You might be headed to a new Chapter 7, when you get eight year eligibility again in 2017. you should talk to a bankruptcy lawyer in your area about that. I am not sure why you are in Chapter 13 now–it partly depends, I guess on when in 2009 you file the C7 and how hard would it be to just outrun everybody until you have eight year eligibility again.
Thank you, I thought I would be off the hook but I was not aware of the HOA.
I am in a Chapter 13 for TWO reasons; I am not eligible for another Chapter 7 until March, 2017 and I wanted (still do) to keep my house. Regarding the HOA, it was found in my chapter 13 that only $9,940.00 of their claim was considered secured. After one year now, I owe them around $8,700.00 that is considered secured. If for arguments sake,I when March of 2017 comes around First, would it be better for me to try to Convert the case to a chapter 7 or let it close and apply again? How can a Chapter 7 get rid of those HOA fees? Could I try for a second loan modification and try to include these fees?
Your bankruptcy lawyer SHOULD have complete info on your situation, which I don’t. I can’t tell you what would work out better, based on a couple emails. I also can’t give legal advice to people who are NOT in Virginia. I can answer legal questions, but I can’t give ADVICE.
Hi, I’m currently trying selling my home CT, which I HAMP modified with a bk discharged CH-7. This was back 9/2010. My question and concern is, can they put a lien against the home for the deferred amount. Or after the house sales, do I have to pay back any of the debt, since the market is on my favor and I will be making a lucrative amount of money.
The answer to that questioner depends on what you signed as part of the HAMP modification. I’d like to tell you more, but I can’t. Your real estate agent would know be able to put you in touch with a lawyer who can look at the documents and tell you what they mean.
I had a sale date last Feb 19. 2020. but was put on hold because I filed a skeleton Chapter 7 on February 05, 2020. However, I not able to submit the required paperwork within 14 days which means my chapter 7 could get dismissed. I applied for a loan mod and it is currently being reviewed (in the underwriters dept) as of Feb 20, 2020. Will the loan modification still in review protect me house from foreclosure if my chapter 7 gets dismissed? Thank you.
Rose: They are allowed to “dual track.” that means they can restart the foreclosure at the same time they are considering your loan mod. They do NOT have to stop.