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TJ, Esq.
TJ, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 9762
Experience:  Licensed to Practice Law
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I have been trying to modify my residency since Feb of 2010.

Customer Question

I have been trying to modify my residency since Feb of 2010. And I filed for BK7 with my residency being an exemption and it was discharged in July of 2010, but I have a repayment plan to the Trustee that won't be fulfilled until May of 2011 and if my modification is not succesful, can I get my residency discharged in this Bankruptcy?
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  TJ, Esq. replied 3 years ago.
Hi. Did you sign a reaffirmation agreement for the house?
Customer: replied 3 years ago.

Hi TJ,

As I'm looking at my BK doc's, there is a section, (4 pages), titled:

 

'CHAPTER 7 INDIVIDUAL DEBTOR'S STATEMENT OF INTENTION' , And at the bottom of the page is this declaration that everything is true, and the only penalty is for perjury.

The reason that I made this house my residency was to modify it. The mortgage is with Citi and they wouldn't modify investment properties. Also, the reason I was so optimistic about the possibility of modification was because I successfully modified an investment property in the same city in a similar neighborhood, with a similar value and similar principle amounts owed, and it was done 1 month after i filed for BK7, and it was started in February as well, and they knew that I was in the process of Bankruptcy.

 

Thanks for your help,

Greg

 

If the afirmation screws me, is there any other avenue I can take to modify this loan?

Expert:  TJ, Esq. replied 3 years ago.
Hi again.

If you did not specifically sign a document entitled "Reaffirmation Agreement," and have such document approved by a judge, then your mortgage is already discharged.

Basically, all debts are discharged unless a debtor reaffirms it. But since reaffirming a debt contradicts the purposes of filing for bankruptcy, it cannot happen unless the very specific document is signed and a judge approves of it. If that didn't' happen, then you do not owe your mortgage. And you would know if you agreed to that situation, since judges will not approve of reaffirmation agreements unless a debtor is fully aware of what he's getting himself into.

Assuming the mortgage was discharged, then it sounds like you did a "ride through," which is where a mortgage is discharged, but the lender does not foreclose because the payments are still being made. If that's what happened, then you are no longer legally liable for the debt because it was discharged. However, since the lien survives bankruptcy, then lender can still foreclose if you stop paying.

Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.

If the information that I provided is helpful, then please remember to click the green accept button so that I will receive credit and compensation for my time. Positive feedback is always appreciated as well. Thank you and good luck!

DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

Customer: replied 3 years ago.

Thank you again, but I don't think I made my question and circumstances clear.......Let me re-try......I filed BK on 3/23/10. Met with the Trustee on May 18thfor my first and only meeting and everything was good but I was keeping stuff that added up to $3600.00 over my allowed exemption amount, so I entered into a payment plan that ends with the last payment on 5/15/2011. So, my debts were discharged on 7/20/2010, but my case is still open and the mortgage in question is exempt by FL / Bay County because I claimed it as my residence.......Here's what the discharge papers said:

"Congratulations, your Chapter 7 debts have been successfully discharged.

Enclosed is a copy of your Discharge Order. Because there will be distribution in your case, it will not close until all funds have been collected and the Trustee files a report of distribution. We will forward a copy of your case closing notice when it occurs."

 

That sounds to me like there may be room for options if Citi won't modify this loan.

 

Thanks for your help.

Expert:  TJ, Esq. replied 3 years ago.
Hi again.

I think you're confused about what it means for the property to be exempt. You wrote: "the mortgage in question is exempt by FL / Bay County because I claimed it as my residence"

Mortgages cannot be exempt. That doesn't actually make sense. Property is exempt. In other words, your house is exempt from the clutches of unsecured creditors who are not being paid. So, your house is not part of the bankruptcy estate. However, that doesn't mean that your mortgage cannot be discharged. One has nothing to do with the other. You can exempt your house from unsecured creditors, and also have your mortgage discharged. Of course, the mortgage lender can foreclose even if the house is exempt since the exemption does not pertain to consensual liens.

Does that make sense?

But let's assume that for whatever reason, your mortgage was not discharged. The answer is yes, you can reopen your bankruptcy and have the mortgage included.

Please remember to click the green accept button so that I will receive credit and compensation for my time. Positive feedback is always appreciated as well. Thank you and good luck!

DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

TJ, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 9762
Experience: Licensed to Practice Law
TJ, Esq. and other Bankruptcy Law Specialists are ready to help you
Customer: replied 3 years ago.
Thanks TJG
Expert:  TJ, Esq. replied 3 years ago.
Glad I could help!

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