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Can my mortgage lender take legal repercussions against me after bankruptcy but prior to reaffirmation?

Tallahassee, FL |

My dad co-signed on a mortgage loan that I obtained on the condo I lived in while in undergrad. A couple of years back, he hit hard times and underwent bankruptcy, noting the property on his asset sheet. I found out recently that the loan had not been reaffirmed during the process however, so now I am wondering whether walking away from the property could result in any legal repercussions for me or my dad. I am primarily concerned about being responsible for the shortage of the potential short sale amount that the bank could secure against the current value of the loan.

Thank you all for your responses. My confusion lies in the fact that when I inquired of the bank today as to their recourse for walking away and going into foreclosure, they explained that neither me or my father would be liable for any losses incurred upon their selling the property due to the lack of reaffirmation.

Attorney Answers 4


  1. Your father's bankruptcy only relieved him of his liability on the mortgage (assuming your father's bankruptcy was done correctly). His bankruptcy does not affect your personal liability on the mortgage loan. You are still liable to the bank for the entire mortgage. You should consult with a couple of bankruptcy attorneys in you area to learn your options and see how a bankruptcy can help you. You can even attempt to keep the home during your bankruptcy (with a loan modification or lien strip).

    The asking of and answering general questions does not establish an attorney-client relationship. Please consult with an actual attorney in your local area before deciding on a course of action.


  2. Walking away will not have any repercussions for your dad as far as the mortgage is concerned. His obligation on the mortgage was discharged in the bankruptcy. You, however, will be responsible for the loan balance, and therefore any shortfall on a short sale or foreclosure sale, unless you also file bankruptcy. Also, you and your dad should be aware that the condo association fees, which accrue AFTER the bankruptcy filing, but before title to the condo is transferred out of your names, are NOT discharged by the bankruptcy, so you should talk with a bankruptcy lawyer about a deed-in-lieu-of-foreclosure.


  3. You should be worried.

    Your dad's discharge wiped out his personal liability under the real estate note.

    You remain responsible for the note and payments and the property remains security for the debt.

    Your father was under no obligation to reaffirm the debt. In fact it was probably right that he did not reaffirm.

    If you short-sell it, and there is debt forgiveness, depending on your level of insolvency, you may be liable for taxes for the gain which will be treated as income.

    I suggest you contact a foreclosure lawyer in your area and set up a consult and see if there's some way to get you out of this, if in fact that is your goal.

    Click on "Find a Lawyer" above and look for a foreclosure attorney.

    This is a public forum. Any questions or answers published here should not be construed as the giving or receiving of legal advice or the formation of any attorney-client relationship. You should consult with a competent attorney in the jurisdiction where your legal issues are pending and get good, solid legal advice. This being a public forum, those answers you do read are merely given for informational purposes only.


  4. A deed in lieu of foreclosure may make sense here, but walking away is not in your best interests. Your Dad can be thought of to be off the mortgage now, but he would still be liable for condo assoc. fees that come due after his bankruptcy until the condo is transferred out of his name.

    The dialogue on this website does not constitute legal advice nor does it form any sort of attorney-client relationship.

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