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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 33801
Experience:  15 years real estate, Realtor. Landlord 26 years
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We filed chapter 13 in 2006, discharged in 2012. We modified

Customer Question

We filed chapter 13 in 2006, discharged in 2012. We modified first mortgage in 2008, took it out of the bankruptcy. We stopped paying the second mortgage in 2008. the second has been sold/changed companies at least 4 times. I now have some company calling, telling me they are going to start foreclosure for the second mortgage. Isn't the statute of limitations over? Whay can they do?
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  Barrister replied 9 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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Can you tell me what state this is in?

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What was the duration of the second mortgage? (10 years, 20, 30?)

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thanks

Barrister

Customer: replied 9 months ago.
Nevada, 30 yr mortgage.
Expert:  Barrister replied 9 months ago.

Ok, was the second included in the bankruptcy and discharged back in 2006?

Customer: replied 9 months ago.
the second was listed as "debtor to pay" but we stopped in 2008 when the market crashed, we were supposed to do mortgage strip but the attorney evidently never filed it...we thought the second was gone but its not...
Customer: replied 9 months ago.
chapter 13 filed in 2006, discharged in 2001
Customer: replied 9 months ago.
dc 2012, not 2006
Customer: replied 9 months ago.
our last payment to them was 2008
Expert:  Barrister replied 9 months ago.

Ok, the way mortgages work with regard to statutes of limitations is that they begin to run after the final due date of the mortgage and Note. So if this is a 30 year term mortgage, then the 6 year SOL would start running after the 30 year term expires. This basically means that the lender would have 36 years from the time the mortgage was taken out to foreclose on the property.

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So legally if they own the second, they could file suit to get a judgment against you personally and then pursue a foreclosure on the property if the second wasn't included in the bankruptcy and discharged.

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I am very sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers based on my knowledge and experience, even when I know the answer doesn’t make the customer happy...

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thanks

Barrister

Customer: replied 9 months ago.
everything I have read on line says they have 6 years from the last missed payment to try and collect?
Customer: replied 9 months ago.
this is not making sense, what do I need to do?
Expert:  Barrister replied 9 months ago.

Sorry that was my error above and should read that they can't come after you personally, but can come after the property

For personal liability yes, that is correct. So they can't come after you personally if you haven't paid for 6 years. But the property stands as collateral for the loan and that loan doesn't come due until 30 years after you took it out. So they can't hold you personally liable, but they could foreclose on the property and force a sale if there is any equity in it to make it worth their while to do so.

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thanks

Barrister

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