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Atlanta, Ga 30331

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Yes and No. Filed a Chapter 7 in 2007 discharged in 2008. Problem is I thought (with an attorney) i did a reafirmation to compound my error the lender remained mute during my bankruptcy process. Years later the mistake was found.

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In 2015 an attorney assisted me and filed papers. He (Grady Roberts of Roberts LLC) failed to tell me he was disbarred from Federal Cases. I understand that now Res-Judicata applies to some matters. But my question is complanints which requires a legal solution comes under Res-Judicata due to procedural errors abe readdress if the original issues are continuing (ongoing)?

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Answered in 1 day by:
3/6/2018
Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2,983
Experience: Better Business Bureau. 18yrs bankruptcy experience. Chicago Bar Assoc. American Bankruptcy Institute member.
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Good morning and thank you for your question.

So, with a chapter 7, since there was no reaffirmation done, that debt is discharged with your case. Generally, only secured debts are reaffirmed (mortgages and homes, furniture, jewelry) but there are exceptions. Keep in mind that reaffirmations are not required in a bankruptcy case. A debtor fills out a statement of intent, but it is just that, what the debtor intends to do. They are not bound by that statement. In fact, many lenders do not even do reaffirmations either. Finally, the bankruptcy attorney must sign off on the reaffirmation, declaring that it does not pose an undue hardship to the debtor. The court would then review this and it must be approved by the court before it becomes effective.

Unfortunately, most courts have ruled that a case cannot be reopened to file a reaffirmation, as the code states that a reaffirmation must be filed before discharge. Therefore it usually doesn't work to try to go back and patch it up.

Many secured lenders let the debtor pay for the asset that has a lien on it as they did before bankruptcy, issuing title upon completion of payments. This is a case by case basis, as it is not part of the bankruptcy code.

Now that being said, there could be malpractice involved with the 2nd attorney who helped you in 2015. The statute of limitations for malpractice based on contracts is 4-6 years generally, but you should discuss that with a malpractice attorney who can review your case to see what, if any liability may be had.

Let me know what questions you may still have and I can answer them. thanks.

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Customer reply replied 5 months ago
Thank you, ***** ***** basic question, if the continuing complaint which was (or would be protected) by Res-Judicated be re-instated to addresse new activity?
Customer reply replied 5 months ago
Sorry Terry L., my key question is when complaints which requires a legal solution comes under Res-Judicata due to procedural errors be readdress if the original complaint issues are continuing (ongoing)?
Res judicata means if the issue were litigated, it cannot be relitigated. I think you are asking about appealing due to procedural errors, that is permissible, especially for ineffectiveness of counsel. What was the previous ruling and what new activity are you speaking of?
Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2,983
Experience: Better Business Bureau. 18yrs bankruptcy experience. Chicago Bar Assoc. American Bankruptcy Institute member.
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Customer reply replied 5 months ago
Waiting for your call. Chapter 7 discharge in 2008. Problem at the time neither I nor the mortgage lender was aware of the discharge status. My error was bad information on how to reafirm and this was compounded by mortgage lender by remaining mute, not contesting my bankruptcy. I believed reafirmation was good and lender due to their admenistrative error thought the loan was ok. Years later the problem was realized. In 12/2010 my account was transfered to another servicer. It was the new servicer that first indicated discharged. The original lender said verberly twice and once in writing that I had no bankruptcy in my record. Anyway 16-months after that transfer the original lender changed information on my credit report to read "discharged in bankruptcy" .
Customer reply replied 5 months ago
The new servicer offered refinancing 3-times and later directed me into a loan modification (streamline). Question came up later since streamline require a default. My question was when was I in default consider the original lender did not contest the bankruptcy in 2008.
Customer reply replied 5 months ago
Soon after the modification my loan/account again was transferred to a third servicer. My questions to the third servicer is being researched as we communicate. I am saying the third servicer was tricked and is trying to revive a discharge debt.
Customer reply replied 5 months ago
signing off now will be at number for next hour. Will hold 3/8/18 open for you between 10:am to 12:30 pm eastern
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