Reaffirmation Agreements in Chapter 7 Bankruptcy

In a Chapter 7 bankruptcy, you will either retain or surrender your secured property. You will probably have to sign a reaffirmation agreement if you are going to keep your property, for example, your vehicle and your home. The reaffirmation agreement basically will reaffirm the amount remaining on the loan, interest rate and the monthly payments. Usually the agreement will be that you continue to make the same payments on the balance due. If you owe a significant amount more than the value of the collateral, sometimes you can negotiate with the creditor to reduce the balance due, monthly payments, and/or interest charged.

If you do not sign the reaffirmation agreement but continue to pay the debt, then it is possible that the creditor will repossess the collateral, although it really depends upon the benefit to the creditor of doing so. For instance, if the vehicle is worth much less than the loan, then it is to the creditor's benefit to continue to allow you to make payments. The bankruptcy discharges the debt unless you sign the reaffirmation agreement. Therefore, if you do not sign the agreement even if you say you will reaffirm it in the bankruptcy petition and you stop paying the debt, the creditor can pick up the collateral; however, it cannot come after you for the deficiency. That is why the creditor wants a signed reaffirmation agreement.

If you have a secured debt and an unsecured debt, i.e., a credit card, with the same lender, then often that lender will require you to reaffirm both the secured and unsecured debt to keep the collateral. For example, you want to keep your vehicle as you have equity in it of $10,000.00 so you will want to sign the reaffirmation agreement with the lender; however, you also have a credit card with the same lender with a balance due of $10,000.00. The lender will require that to keep your vehicle, you must sign a reaffirmation agreement that you will pay the balance due on the vehicle as well as the $10,000.00 credit card debt. If you do not sign the agreement, then it is to the creditor's benefit to repossess your vehicle.

By Lynette Silon-Laguna Google

Financial Hardship and Bankruptcy: Don't use exempt from creditor assets to pay current debts.

Financial hardship can occur at anytime. No matter how secure your financial situation may presently be, you never know what the future may bring. Job security is an oxymoron. Your position may become outdated because of new technology, your position may be outsourced overseas, or the company you work for may suffer its own financial hardship and either liquidate or reorganize. If you are able to retain your position in the latter circumstance, you may receive a decrease in salary. The same applies if you are an entrepreneur and you are self-employed, which does give you somewhat more control over your destiny.  In addition, divorce can be extremely detrimental to your financial circumstances.

Once a job loss or self-employment income loss occurs, then it is very easy to start spiraling into a financial abyss. You have acquired a certain standard of living and debts to be paid, including essentials such as your rent or mortgage, car loans, food, utilities, etc. When you don’t have the funds to pay your debts then you may use your credit cards for current living expenses and payment of your essential debts, thus incurring more debt that cannot be repaid. Once you miss or are late paying a credit card payment, then you will incur late fees and if you continue to miss or are late on your payments your interest rate will increase astronomically resulting in your debt increasing exponentially, until there is no hope to pay it off.

Or instead of or in addition to using your credit cards to pay for your living expenses and debts, some debtors will take funds from assets that would be exempt in a bankruptcy and pay their essential debts such as the mortgage or rent, car loans, as well as unsecured credit card debt or other unsecured debt such as medical bills, so that they don’t fall behind. Examples of reducing exempt property to pay debts are obtaining second mortgages on homes where they reside, taking funds from retirement accounts and paying taxes and possibly penalties, or taking all or part of the cash value of a life insurance policy. Depending on your age or other cirecumstances, this can be disastrous to use funds that you need for retirement to pay current living expenses and unsecured debt.

Unfortunately, this occurs to many people who are devastated because they cannot pay their debts, although that they cannot do so most often is no fault of their own. It is important to know prior to this occurring how to protect and keep your property if you must file for bankruptcy. In short, do not use up assets that will be exempt in bankruptcy to pay your unsecured debt. Or do not pay off any secured debt which will make it a non-exempt asset. In example, do not pay off your vehicle. Either keep a loan that you have on it or get a loan on it. There has been a U.S. Supreme Court ruling in Ransom v. FIA Card Services decided January 11, 2011, that in short sets the precedence that a debtor who does not make a loan or lease payment may not take the car-ownership deduction in Paragraph 23 and 24 of the means test; however, the debtor may deduct the operating expenses in 22A. This may drastically change whether you will pass the means test and be eligible for a Chapter 7 bankruptcy, rather than a Chapter 13 bankruptcy,

If your credit score has been demolished by unpaid bills, you have nothing to lose by filing bankruptcy. In actuality, bankruptcy is a new beginning and if you qualify, chapter 7 will wipe out all or most of your debts and often times you will be able to obtain credit again shortly after your discharge. Most bad consumer debt will remain on your credit report for 7 years whether paid or not, while paid or unpaid judgments may remain on your credit report for 7 years or longer depending on state law. Lenders are less likely to lend to you with bad credit, then to lend to you after a bankruptcy.

Chapter 13 is available for those who do not qualify for a Chapter 7 bankruptcy, although there is a 60 month plan period.  This Chapter does have benefits that are not available in a Chapter 7 such as the ability to pay arrearages for secured property loans during the plan and preventing a foreclosure or repossesion of a vehicle. 

Call us today at (813) 672-1900 to schedule a free consultation to discover your options.  Visit our website at www.familymaritallaw.com for more information. 

By: Lynette Silon-Laguna Google+

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What Happens in a Foreclosure

See my website at http://www.familymaritallaw.com/CM/Bankruptcy/Chapter-13-Bankruptcy.asp for information on how a chapter 13 bankruptcy can help you avoid foreclosure and catch up on any arrearages. Chapter 7 bankruptcy, unfortunately, does not allow you to do this; however, it will delay the foreclosure through the date of discharge or if the creditor motions to lift the automatic stay, the date an order is signed by the Court allowing the automatic stay to be lifted.

(Note that not all of the following article is valid in Florida.)

Copyright © 2011 FindLaw, a Thomson Reuters business

Certain creditors may have special rights when faced with collecting bad debts. One of these rights is the availability of a procedure called foreclosure. Foreclosure is most often exercised in relation to unpaid mortgages on real property. In a foreclosure proceeding, the creditor exercises its option under the mortgage to force a sale on the property that is the subject of the mortgage in order to use the proceeds to pay the debt.

The rights of a mortgagee (usually the lender; commonly a bank or mortgage company), when the mortgagor (borrower or homebuyer) defaults, vary considerably from state to state. There are, however, a number of similarities. Generally, there are only two types of foreclosure sales: a judicial sale and a sale pursuant to a power of sale clause contained in the mortgage documents. Judicial sales are more common. Although the details of judicial sales are mainly a matter of local law, they usually require notice of a hearing, a judicial determination of default, notice of sale, a sale, confirmation of a sale, possible redemption and entry of a judgment for any deficiency (the difference between the sale amount and what is owed on the debt).

In order for a mortgagor to avoid a judicial foreclosure once he or she has defaulted in making scheduled payments, the entire debt must be paid. In about half of the states, the period in which the mortgagee can exercise this option, or redeem the debt, extends even beyond actual foreclosure. In that case, the redemption amount is the sale price plus interest, not the amount of the debt secured by the mortgage.

In a judicial foreclosure, the sale is not enforceable by the buyer until it has been confirmed by the court. Legal rules limit the court's discretion on whether to confirm the sale. Mere inadequacy of price without more is not enough to justify the court's refusal to confirm a foreclosure sale, but adequacy of price is a primary concern. In many states, the property must be appraised before the foreclosure sale, and the sale will not be confirmed unless the sale price is at least a certain percentage of the appraised value.

Because judicial foreclosures are time consuming and procedurally complicated, some mortgagees include in their standard mortgages a power-of-sale provision permitting a sale without any court involvement if the mortgagor defaults on the payments. This approach has only limited recognition in the United States. In the states that do allow it, the sale must be public and preceded by a notice (usually by advertisement) that specifies the amount due, the property description, the date and location of the sale and whatever other matters the statute and the mortgage specify. Because courts tend to be critical of non-judicial sales, they are quick to grant relief against such sales for even slight irregularities. This reluctance to accept non-judicial sales can result in uncertainty of title, which could be the main reason that power-of-sale foreclosures have failed to gain greater acceptance.

Due to the important rights involved, debtors facing the prospect of foreclosure and loss of their homes can benefit from the advice of counsel experienced in this area. Attorneys working in this area can also assist borrowers proactively by reviewing the mortgage documents before the borrowers sign them, in order to protect the borrowers' rights and eliminate provisions that do not serve the borrowers' best interests, such as power-of-sale clauses. On the other hand, lawyers representing creditors can guide them through the sometimes cumbersome foreclosure process and aid them in the recovery of the money that they are rightfully owed.

Copyright © 2011 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Principal Paydown Plan through Chapter 13 Bankruptcy - STOP FORECLOSURE

The National Association of Consumer Bankruptcy Attorneys has been working on a "principal paydown plan" through a chapter 13 bankruptcy.  See below for their executive summary of the proposal.  I am a bankruptcy attorney whose firm handles chapter 7 and chapter 13 bankruptcys.  I know the devastation the economy and the collapse of the housing market have caused many people.  These people are people who have come on to hard times, which can happen to anyone, and not out to "use the system".   We need solutions which will stop foreclosures and allow homeowners to keep their homes.  We ALL BENEFIT from the reduction of foreclosures and the stabilization and growth of the housing market. 



PRINCIPAL PAYDOWN PLAN, EXECUTIVE SUMMARY

• This plan restructures certain undersecured (underwater) mortgages in Chapter 13 bankruptcy cases so the homeowner can pay down the loan principal and reduce negative equity and acquire equity faster than with the existing loan
• This is accomplished by reducing the interest rate to 0% for five years, letting the borrower’s entire monthly loan payment go directly to the principal
• During the five-year period, the borrower’s minimum monthly housing payment is calculated similar to a HAMP modification payment, at 31% of gross income
• At the end of the initial five-year period, the remaining principal balance is amortized over 25 years at the Freddie Mac survey rate
• The bankruptcy judge, with the assistance of the Chapter 13 Trustee, reviews the borrower’s budget to confirm the eligibility of the borrower and feasibility of the payments; and they oversee the implementation of the plan
• There is no cramdown – the benefit to the borrower is achieved by actually paying down the loan
• In exchange for this benefit, the borrower agrees to a general settlement of all claims against the lender and servicer and avoiding future title and loan litigation
• The federal government and US taxpayers’ substantial liability on Fannie Mae and Freddie Mac owned and insured loans would be reduced by this plan
• Everyone wins with this plan – even the borrower’s community and local government benefit from improved neighborhood stability

For more information go to the following link:

http://www.nacba.org/Legislative/PrincipalPaydownPlan.aspx

Go to for more information on Chapter 13 Bankruptcy:

http://www.familymaritallaw.com/CM/Bankruptcy/Chapter-13-Bankruptcy.asp

Mortgage Loans Discharged In Chapter 7 Bankruptcy

Mortgage loans can be discharged in Chapter 7 bankruptcy proceedings so that homeowners no longer have to worry about paying an expensive loan when their income has dropped. But with a discharge, the owners will not be able to keep their house, as the bank will receive the collateral back as a result of the loan being eliminated. So there must be other reasons for owners to consider this tactic, since it does not actually save the house.

The main benefit of doing this is that homeowners are able to stop foreclosure from moving any further along in the legal process, meaning no more court documents, lawsuit paperwork, sheriff sale dates, or eviction hearings. Even if the borrowers move out of their house before the foreclosure process is complete, the courts will still move ahead with the necessary procedures to sell the house to satisfy the mortgage lien. Discharging the mortgage through bankruptcy ends this sequence of events.

Another important reason to consider filing Chapter 7 to eliminate the mortgage and move out of the house is the possibility of avoiding deficiency judgments after foreclosure. Although few banks sue again after the sheriff sale for any difference between what was owed and what the property sold for, it may be best just to discharge the mortgage and not worry about any further lawsuits regarding this property.

Bankruptcy is an important legal defense that homeowners have against unmanageable debt burdens and aggressive collections efforts, whether they are from credit cards, collection agencies, or mortgage companies. Collectors will never give up trying to go after a debt, and every day of the foreclosure process can be a nerve-wracking experience. Although the social stigma of bankruptcy may be severe, many debtors will liberated and generally much feel better with a fresh start and no extra debt.

www.FamilyMaritalLaw.com