I filed chapter 7 a year ago and was discharged from my debt obligations in August. I elected not to reaffirm my principal mortgage agreement nor my home equity loan. My spouse is a co-owner (tenancy in the entireties) of our principal residence. Could the bank foreclose on our house (especially since we have $90,000 equity in the house) despite that we continue to make our monthly mortgage payments in a timely manner?
State/Country relating to question: Florida
Hi - my name is XXXXX XXXXX X'X a Bankruptcy litigation attorney here to assist you.Bankruptcy doesn't erase debts. Instead, bankruptcy erases your obligation to pay a debt or debts. Thus, in this case, your husband is srill obligated for the debt. However, if you are current on your mortgage, haven't missed any payments and aren't otherwise in default of the loan, the lender should have no ground to institute foreclosure proceedings. The only issue I see is that most loans say that you become in default if you file bankruptcy. However, if the lender is aware of your filing and has continued to accept payments after the bankruptcy filing, they should have waived any right to foreclose. Kirk Adams41041.8768317477
Are you saying that if my husband was discharged from his bank loan debt for $200K, the lender can sue his estate when he dies?
I'm going to have to step away. I'll opt out and allow someone else to continue with you.
Okay, I will post this question again.
Thank you for giving me the opportunity to assist you. I encourage you to ask me for clarification, if you are not clear with my Answer.Is your husband's name on the mortgage?Did your husband file for Bankruptcy Protection and also obtain a Discharge Order?
My husband is on the mortgage and the discharged note. He alone filed for bankruptcy under Chapter 7 a year ago. All of his debts including this one were discharged in August 2011.
Is your name on the mortgage also?I know that you have indicated that your name is XXXXX XXXXX title.
Yes, my name is XXXXX XXXXX mortgage and title but not on the bank note.
Thank you for your responses. Your follow-up question: Are you saying that if my husband was discharged from his bank loan debt for $200K, the lender can sue his estate when he dies? Response: The lender cannot sue the estate of your husband because his personal liability on the note was discharged in bankruptcy. Also, suing his estate would be a willful violation of bankruptcy discharge injunction, 11 U.S. C. Section 524, and the bankruptcy case would be reopened at the time pursuant to 11 U.S. C. Section 350b to file complaint against the lender with the bankruptcy Court for sanctions. However, since he is the only one that filed for Chapter 7 bankruptcy protection, the lender can come after you for the debt if the debt is delinquent because your husband's Chapter 7 bankruptcy does not prevent the lender from coming after you, a co-debtor on the debt. The Chapter 7 bankruptcy discharge only protects the debtor that files for bankruptcy protection and not the co-debtors on the debt. Nevertheless, the lender cannot foreclose on the property when the payments on the mortgage are being made.
Let me know if you need further clarification.
Licensed in Massachusetts and New York
I am not a co-debtor because I only signed the mortgage not the note. Do you concur?
I am not a co-debtor because I only signed the mortgage not the note. Do you concur?Response: No, I do not. You are a co-borrower and thus a co-debtor because your name is XXXXX XXXXX mortgage. However, if the mortgage is foreclosed, the lender CAN NEVER come after you for the deficiency after the foreclosure of the mortgage because you did not sign the Note. The Note is your personal obligation for the Mortgage. The Mortgage is security interest on the property.
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