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Apple Valley, CA |

This is my third time asking same question BUT I have to ask again. Filed BK7 and received discharged of all debts INCLUDING 1st and 2nd loan mortgages 3 years ago, no reaffirmation, after bk7 we stay in the house and never send a payment, bank wont foreclose, collectors wont stop calling I called the BofA bk department and I request for the calls and the monthly bills to stop and I was told that the loan is active and will be active until I do a shortsale a deed in lieu or if they proceed with foreclosure and in the meantime I will receive collection call and regular monthy mortgage bills I told them that if they want to proceed with foreclosure is fine but it was agains the law to call me or send me letters asking for a payment, again they say the loan is active. WHY? can they do this

Attorney Answers 5

  1. Best answer

    If their letters have the disclaimer that Mr. Wagman mentioned, then they can send the letters. But if they are demanding payment of any amount then they are violating the discharge injunction. They should not consider this loan to be an active loan and they should recognize that your personal liability has been discharged. Although none of my clients have expressed to me that BoA has sent them this kind of letter, I have heard stories from some local colleagues that indicate that BoA has been doing this sort of thing. Take one or more of these letters to your attorney, or if you did not use an attorney, to a local bankruptcy attorney and ask for their opinion about whether the language in the letter is permitted given your discharge back in 2009. They should NOT be calling you seeking to collect a debt. They should not be sending you a bill demanding payment. Keep track of who calls, when they call, what they say, if they threaten you in any fashion, what they say they will do, any demands for payment they make what you say and the fact that you advised them again that your personal liability was discharged by your bankruptcy and what they say in response. Keep a notebook by your phone and keep all the letters they send. Talk to whatever lawyer you speak with about whether you can record any phone calls and whether you have to tell them you are recording the conversation. If the attorney advises what you must do to legally record their calls, comply with what he/she says and record the calls, even if you have to advise them that you are going to record the call. That way if they do insist that you "owe" the money and demand payment, you will have a record that can be used in court.

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  2. Although your personal liability was discharged by the bankruptcy you are still on title. They likely have a disclaimer on the bills, statements etc. that say "if you were discharged in bankruptcy we are not attempting to collect a debt in violation of the discharge" or something like this. They still have to extinguish you interest in the property and give information under state law because you are on title to the property. If it has a disclaimer then they are fine, but if they don't then it may be whole different story and you may be able to sue them and reopen the bankruptcy and go after sanctions. Without a review of the letters it is a guess whether they are violating the discharge order.

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  3. Collection of a discharged debt is unlawful. However, if the mortgage company is merely providing you notice, it may not be construed as a collection effort.

    There is, from the sound of your explanation, no real collection effort going on, and it seems you remain in possession of the property. If that is the case, and you are not and have not been making payments, why not just accept the bank's generosity in letting you stay rent-free? I am, of course, not so naive as to believe that the bank is trying to help you out of its decency and humanity, but the result is the same. Many Americans would consider staying in their home without paying the mortgage a benefit worth dealing with a few phone calls.

    I understand that this answer is not what you want to hear, and that it is less a legal answer than a practical one, but I urge you to consider the big picture.

  4. Did you file your bankruptcy with an attorney? You need to contact him or her if you did. If you files on your own you may want to double check the court records to be certain that a discharge was issues in your case and that BOA was properly listed and notified in your bankruptcy case.

    If all seems right at the bankruptcy court then you should consult with a bankruptcy lawyer or a consumer rights lawyer now to see what recourse you have against bk of America.

  5. My colleagues answered your question rather thoroughly, but here is one more piece of advice for you. Send a letter to BoA demanding that, pursuant to the Fair Debt Collection Practices Act, all future correspondence regarding the account that they are contacting you about be done in writing. If BoA does not comply, you should have an additional remedy to go after them for.

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