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Filed Chapter 7 bankruptcy over 2 years ago - now judgement shows up

Edgerton, KS |
Filed under: Chapter 7 bankruptcy

Filed Capt 7 over 2 years ago, now trying to purchase a new home my credit not only shows the bankruptcy but also a judgement on our old home that was put in the bankruptcy. The papers show that the bankruptcy was discharged - it includes the morrtgage company. So can the mortgage company put a judgement against us? Their file says "in rem" and then our names. I'm so confused...one BK attorney says no they can't have the judgement while another says yes they can. Oh sheesh...just need a straight answer so I know how to proceed.

Attorney Answers 3

Posted

The key question is: was the judgment entered before or after bankruptcy? If it was entered after the bankruptcy, no problem, send notice of the bankruptcy to courthouse and the title company and they will see that the judgment was void in violation of the automatic stay.

A much bigger problem arises if the judgment was entered before the bankruptcy. In that case, you or your attorney needed to file a motion to avoid the judgment as an impairment of your exemption. You will need to reopen your bankruptcy case and have the judgment set aside.

I have uploaded a YouTube video addressing this very issue. Please take a look and if it answers your question, please "like" it.

I am happy to answer general questions about my practice areas on this website. . However as I'm sure you understand we do not have an attorney/client relationship. Therefore my suggestions do not constitute legal advice. I urge you to contact counsel in your jurisdiction from whom you feel you can obtain trusted information. http://www.drescherlaw.com

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Posted

the judgement was after the bankruptcy :) thank you!

Posted

If you did not reaffirm the debt, it was discharged. The Mortgage, however, was not. Confusing I know but that is what the "in rem" probably refers to. In rem refers to the property. What this means is that the lender can foreclose on the house but can not pursue you for any claim of deficiency if it sells for less than what is owed on it.

This is general information, I do not have enough information to advise you specifically. you need to see a lawyer to fully explore your legal rights and remedies.

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Posted

we did not reaffirm the debt & have not lived in the house since we filed bankruptcy. I know they can foreclose - got that paperwork but the credit reports show "judgement" not foreclosure, dischareged Capt. 7 - so no one will give us a loan with a bankruptcy and foreclosure - it looks like 2 different things when it's one. So can we have the judgement taken off??

Posted

When you mentioned in your question that you are trying to purchase a "new home", I assume that the old home was foreclosed and you no longer have that house.

You included that house and the mortgage in your bankruptcy documents; therefore, the debt was discharged unless you reaffirmed it.

Now, you find out that your have a judgment against you (in personam) and another one IN REM (against the property).

The mortgage loan arose before the filing of your bankruptcy and the lawsuit was filed either before or after the BK.

If the law suit was filed before the BK, it will be discharged both the debt and the judgment debt. (You listed your creditor, no need to list the lawsuit you were not even were aware existed).

If the law suit was filed after the BK, it would not be a valid judgment and in violation of your discharge order.

Apparently the mortgage company did not served you the court papers as you have just become aware of that law suit.

Contact a local attorney through AVVO and he or she can help you straighten that problem for you. Vacate that judgment as it was entered improperly for lack of service and most likely in violation of the discharge order.

I am very pleased to be of assistance in answering your legal questions on AVVO website. This pro bono assistance has not established a attorney/client relationship and should not be construed as such. Therefore, my opinion or suggestions to your question do not constitute legal advice; moreover, when the totality of the facts are not and cannot be fully disclosed and assesses online. I strongly urge you to seek legal advise, in your local area, forma a reputable attorney.

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