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I filed CH7. My petition states retained, reaffirm the debt. Can I walk away from the home?

Ellenwood, GA |

I have been making payments since my discharge in 2009. The bank has the loan listed as included in bankrupcty in my credit files. The bank is not reporting my payments. I disputed with all 3 bureaus and it still came back the same. The bank states the account is closed and was included in the bankruptcy. I did not sign a reaffirmation agreement nor went in front of a judge. I only went to the 341 meeting. Is my statement of intent legally binding without a signed agreement? Is my petition incorrect and can I walk away? Does this retained, reaffirm the debt on the petition hurt my chances of obtaining a new mortgage?

Attorney Answers 5


  1. Generally, if you did not sign a reaffirmation agreement, the debt became subject to discharge in the bankruptcy. While I urge you to speak to a local bankruptcy attorney, it appears that you should be able to walk away from the home without having a deficiency. However, getting a mortgage may be difficult in view of your fairly recent bankruptcy filing. Please do not delay to speak with an attorney. Best of luck!

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.


  2. The statement of intention you filed with the bankruptcy court is virtually meaningless. The principal reason for it is to give the secured creditor a "heads up" to seek a lift stay so that it can proceed with a foreclosure or repossession. Hope this perspective helps!


  3. The Statement of Intention is not binding, so walking away has no financial consequences. However, if there is a subsequent foreclosure, it could be reported. If you want your payment history to be reported accurately, you should request a payment history from the lender, then submit it to the credit reporting agency. The bank cannot deny that the history it produced for you is not accurate when you dispute the non-reporting of you payments.


  4. You can walk away if you did not sign and have filed a reaffirmation agreement with the lender

    The DiGiulio Law Firm, LLC.
    www.atl-law.com
    770-309-9551

    The DiGiulio Law Firm, LLC. Phone: 888-540-4529 Website: www.atl-law.com Atlanta, Marietta, Lawrencevile, Duluth, Alpharetta, Buckhead The above answer is for general information purposes and is offered as a service to the public. Nothing on this or associated pages, documents, comments, answers, reviews or other communications, including the above post, should be taken as legal advice for any individual case or situation or relied upon as a substitute for engaging legal counsel, nor does it constitute advertising or a solicitation. Viewing the general information here, including your receipt or transmission of information hereof does not alone create or constitute an attorney-client relationship or ensure confidentiality. Please contact 770-309-9551 for additional questions or to schedule for your free phone consultation. If this question or answer pertains to bankruptcy, please be advised that we are a federal debt relief agency. One of our areas of practice is to help people file for bankruptcy relief and protection under the U.S. Bankruptcy Code.


  5. First of all, 99.999% of the time, it would ne a HUGE mistake to reaffirm a mortgage. There is almost no upside and lots of downside. Retain and pay works with real estate, but lets you walk away at any time.

    Regardless of the statement of intent, unless a reaffirmation is signed and filed, the debt was NOT reaffirmed. Your credit report properly should show the debt as included/discharged in bankruptcy, as your payments now are voluntary (they retain a lien and can foreclose if you stop paying; they simply cannot sue you). Your voluntary payments don't get reported, so your dispute was properly denied.

    You can walk away without liability. The bankruptcy filing itself and the eventual foreclosure that will happen can impair you getting another mortgage.

    These are all things your lawyer should have explained.

    If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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