Upland, CA asked in Bankruptcy for California

Q: Can I file a reaffirmation after a chtp. 7 discharge 2 yrs ago?

I filed BK and WAS NEVER told of the reaffirmation of debt form. I am attempting to modify my laon and being told I need to do tis first. Well I have been discharged over 2 yrs. Do I have any recourse

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1 Lawyer Answer
Jon G. Brooks
Jon G. Brooks
Answered
  • Bankruptcy Lawyer
  • San Jose, CA
  • Licensed in California

A: When you say that you are attempting to "modify" your loan, I assume that you are talking about a loan secured by a home, not a car, since auto loans are never "modified." If I am correct that you are referring to a home mortgage, then there is absolutely no reason to reaffirm a mortgage debt in a California bankruptcy. Because California is a "non-recourse" state at least with respect to first mortgages and purchase-money seconds, meaning that if there were a (non-judicial) foreclosure then the lender could not sue you for any deficiency, or the difference between what the home were worth and the amount owed on the loan. This would be true whether you filed bankruptcy or not. In other states with fewer protections for homeowners in foreclosure, the lender would just love for you to have reaffirmed your mortgage in your bankruptcy, but doing so would in most situations be a very bad idea. Reaffirming a debt that would otherwise be discharged in bankruptcy is waiving a portion of your bankruptcy discharge. By doing so, you are voluntarily agreeing to be personally liable for that debt despite your bankruptcy discharge. Reaffirmation is something most debtors in most contexts should never take lightly. Reaffirming a home equity line of credit (a recourse loan in California) where there is no equity in the home to secure the debt, would in my opinion be an incredibly bad idea, for example. By doing so, if you later lost the home to foreclosure, then the reaffirmation would operate to allow the home equity lender to sue you because you reaffirmed the debt despite the fact that they would not have been able to sue had you not waived your discharge by reaffirming.

It sounds like your mortgage lender is simply creating an absurd obstacle to loan modification.

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