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When is a mortgage note no longer enforceable?

San Diego, CA |

When is a mortgage note no longer enforceable? My only one mortgage (first) was discharged in ch 7 bk, 5 years ago. Since the event I have not made any mortgage payments, but the bank has not foreclosed yet. I'm thinking if a quiet action title would benefit me?

Attorney Answers 2


Since the lien remains on the property, how would you expect to win a quiet title action? unless you're hoping that after properly serving the bank (not a simple task) they fail to respond.

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There are two things at play when it comes to secured debt obligations, key word being secured. You have a personal obligation to repay the debt. You agreed to repay it when you signed the promissory note. With a mortgage that is secured by the property you also pledged the property to the creditor in the event you fail to make payments as promised. Unless there are exceptions (and there are in California) when you fail to make payments on a debt the creditor can take the property, sell it, and then go after you personally for any difference between what they were owed and what they managed to get from the sale of the property plus costs. When a mortgage debt is discharged in California, the debtor's personal obligation to repay the debt is discharged. However, the debt is secured by the property. This right to collect "in rem" by taking the property survives the bankruptcy. You haven't had a foreclosure yet, but it doesn't mean it won't happen, probably a question of when they get around to it. If you wish to prevent foreclosure you have two options. Apply, and maybe you will receive a loan modification, a voluntary process for both the borrower and the lender. Or if your financial circumstances have changed and you can now afford the payments and to bring back past due amount current over a period of 5 years, file chapter 13.

Hope this helps.

I am not YOUR lawyer. You should not rely on answers to questions as legal advice. For legal advice you should contact a law firm for a consultation. Tokarska Law Center 185 West F Street #100, San Diego, CA 92101 (619) 285-1992 Tokarska Law Center is a Federal Debt Relief Agency representing individuals and businesses in filing for bankrutpcy protection under the U.S. Bankrutpcy Code.

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