So, I filed Chapter 7 BK and it was discharged and closed. Later if I sue my mortgage company for loan origination violations, I will lack standing? That seems so unfair. Is there a way to effectuate standing (even though cause of action arose pre-BK) without reopening BK to request the trustee to abandon claims?
Is there any way around this trap?
Unfortunately, I am not aware of a way around the problem, however, I have never researched it.. If you reopen the case it is also possible the trustee will decide to claim an interest in any recovery for damages. So in essence it may not be worth your time and money to pursue a claim against the mortgage company. It goes without saying that had you used an attorney for your bankruptcy you would not have this problem. It is my hope that you did not reaffirm on the mortgage during the bankruptcy.
Finally, while you may not pursue damages until your claim is properly disclosed to the bankruptcy trustee, your "lack of standing" does not stop you from seeking state and federal sanctions against the mortgage company for loan origination violations.
This answer in no way creates an attorney-client relationship. The answer is not a complete answer and requires additional facts in order to provide the best options. The submitter accepts the risk of relying on such an incomplete answer and waives any claims of damages for doing so. As stated in the answer the submitter should contact a qualified bankruptcy attorney is discuss these issues further before any action is taken. Any action taken without advise and counsel of a qualified attorney is inadvisable.
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Why do you lack standing. If you fail to pay on the debt the mortgage company can foreclose on the lien. The mortgage company holds a lien on your property, thus you have standing based upon the lien.
Jonathan Leventhal, esq.
Leventhal Law Group, P.C.
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If the claim arose pre bankruptcy then it needed to be listed in the schedules. If it was not there is the real possibility that the defense attorney will argue that you swore before a court in your bankruptcy that you did not have a claim so you cannot later assert a claim. The defense is raised in personal injury cases so I would assume they would raise it in your case too.
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Your ellipsis to the 4th power caught my attention: you understand visuals.
About three years ago,I had a Bky case with an unlisted claim: we had to reopen the case and obtain another trustee report of abandonment of the newly-listed asset before the debtor could proceed with her claim.
Research "judicial estoppel."
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