Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
Question: I am looking to reaffirm my mortgage "after" it was originally not reaffirmed per my attorney's direction in 2005. Recently, I asked my mortgage company if I could reaffirm it now in 2012 and was told that the case would have to be re-opened. They said that my attorney would need to do this. My questions concerning this are; 1.) Is it possible to reaffirm post-discharge,
Response 1: No, it is not possible. Generally, Reaffirmation Agreement cannot be signed “post-discharge.” It must be signed within 60 days after Section 341 Meeting although the Court can grant extension for filing the Reaffirmation Agreement with the Court. See Rule 4008 of Federal Rules of Bankruptcy Procedure. However, I do not see the Bankruptcy Court letting you reopen your Bankruptcy case seven years after your bankruptcy Discharge so that you can file a Reaffirmation Agreement with the Court.
Rule 4008. Filing of Reaffirmation Agreement; Statement in Support of Reaffirmation Agreement
(a) Filing of Reaffirmation Agreement. A reaffirmation agreement shall be filed no later than 60 days after the first date set for the meeting of creditors under §341(a) of the Code. The reaffirmation agreement shall be accompanied by a cover sheet, prepared as prescribed by the appropriate Official Form. The court may, at any time and in its discretion, enlarge the time to file a reaffirmation agreement.
(b) Statement in Support of Reaffirmation Agreement. The debtor's statement required under §524(k)(6)(A) of the Code shall be accompanied by a statement of the total income and expenses stated on schedules I and J. If there is a difference between the total income and expenses stated on those schedules and the statement required under §524(k)(6)(A), the statement required by this subdivision shall include an explanation of the difference.
2.) is this something that I could do myself or will it require an attorney, and Response 2: You can do it on your own. The lender is the one that generates the Reaffirmation Agreement and let you sign it. If you do not have an Attorney, a hearing must be held on the matter because the Court would explain to you the consequences of signing the Agreement and the Court must be convinced that the Reaffirmation would not pose undue hardship for you in order to approve the Agreement. See 11 U.S.C. Section 524(c)(6)(A). The Bankruptcy Court would find undue hardship if your expenses are more than your income. In any event, it is too late for you to reaffirm. I do not see the Court granting you a Request to reaffirm your mortgage seven years after the conclusion of your bankruptcy case.
3.) are there any other options?
Response 3: No. It is very important to note that your Bankruptcy Attorney pursued the best course of action in your case. Reaffirmation is NEVER in the best interests of the debtor no matter how the creditor tries to sugarcoat it. Reaffirmation nullifies the benefits of bankruptcy protection for the reaffirmed debt. This means that if your mortgage were reaffirmed, you would still be liable for the mortgage if you can no longer afford to pay it. The creditor would come after you for the deficiency after foreclosure. Once reaffirmed, you can NEVER list the debt in your future bankruptcy filing. On the other hand, if you do not reaffirm the mortgage, your personal obligation on the note is wiped out. This means that you are no longer liable for the mortgage. While you can continue to make mortgage payments in order to stay in the house, you no longer have legal obligation to pay the mortgage. Also and more importantly, if the creditor forecloses, the creditor can NEVER come after you for deficiency after the foreclosure sale because your personal obligation on the debt has been wiped out by your bankruptcy Discharge.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).