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Reaffirming Mortgages (Revisiting)
Ok, interesting case, but Texas is an entirely different part of the universe. Notice the Judge added a whole lot of "creditor can" language to the opinion. The lawyers in Texas can point to the decision and tell creditors they are able to take those actions.
Would a Los Angeles Judge to write the same opinion?
Also, the judge just waxed over the question of creating a liability when there isn't one. What part of California law is changed by signing a reaffirmation? Would that change the loan from purchase money?
Nonpurchase money, seconds, and equity loans, have personal liability.
In those cases the Texas case would not apply, keep in mind, Texas is different.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On May 15, 2015, at 11:37 PM, Michael Avanesian michael@avanesianlaw.com [cdcbaa] wrote:
>
> Well.. check out this beauty:
>
> "The court disapproves the reaffirmation agreement between the debtors and JP Morgan Chase Bank, N.A., because the debt in question is a home equity loan, which is, under Texas law, a nonrecourse obligation. Thus, there is nothing to "discharge" and so nothing to reaffirm. Reaffirmation agreements of such loans are inappropriate ... so as to impose a liability on the debtor, a liability for which the debtor, under nonbankruptcy law, clearly has no liability."
>
> https://scholar.google.com/scholar_case ... as_sdt2006
>
>
> Sincerely,
>
> Michael Avanesian, Esq.
> Simon Resnik Hayes, LLP
> 15233 Ventura Blvd., Suite 250
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>
>> On Fri, May 15, 2015 at 11:27 PM, Nicholas Gebelt ngebelt@gebeltlaw.com [cdcbaa] wrote:
>>
>> Dear Mark,
>>
>>
>>
>> If the debtor subsequently defaults, there could be a tax liability on cancelation of debt income.
>>
>>
>>
>> All the best,
>>
>>
>>
>> Nick
>>
>>
>>
>> Nicholas Gebelt
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>> Nicholas Gebelt, Ph.D., J.D.
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>> Attorney at Law
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>> Sent: Friday, May 15, 2015 11:11 PM
>> To: cdcbaa@yahoogroups.com
>> Subject: Re: [cdcbaa] Reaffirming Mortgages (Revisiting)
>>
>>
>>
>>
>>
>> I guess I'm asking if there's any downside at all to reaffirming a mortgage in California. Clients want to be able to have the postpetition/post discharge payments reported as "on time" on credit reports.
>>
>>
>>
>> *************************
>> Mark J. Markus
>> Law Office of Mark J. Markus
>> Mailing Address Only:
>> 11684 Ventura Blvd. PMB #403
>> Studio City, CA 91604-2652
>> (818)509-1173 (818)332-1180 (fax)
>> web: http://www.bklaw.com/
>> Certified Bankruptcy Law Specialist--The State Bar of California Board of Legal Specialization
>> This Firm is a Qualified Federal Debt Relief Agency
>> ________________________________________________
>> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
>> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
>>
>>
>> On 5/15/2015 8:48 PM, cdcbaa cdcbaamailbox@gmail.com [cdcbaa] wrote:
>>
>> Mark:
>>
>> Are you asking if preemption applies? No. A reaffirmation agreement would have to have specific language saying the loan becomes recourse for a court order in a Federal Court to preempt state law. I have never seen anything like that, and expect most judges would not sign such a reaff.
>>
>>
>>
>> d
>>
>> Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
>>
>>
>>
>>
>> On May 15, 2015, at 10:36 AM, 'Mark J. Markus' bklawr@yahoo.com [cdcbaa] wrote:
>>
>>
>>
>> I know there's been a lot posted on this topic, but I had a specific question:
>>
>> If a debtor reaffirms an otherwise non-recourse mortgage, does the reaffirmation convert that into a recourse loan?
>>
>>
>>
>> *************************
>> Mark J. Markus
>> Law Office of Mark J. Markus
>> Mailing Address Only:
>> 11684 Ventura Blvd. PMB #403
>> Studio City, CA 91604-2652
>> (818)509-1173 (818)332-1180 (fax)
>> web: http://www.bklaw.com/
>> Certified Bankruptcy Law Specialist--The State Bar of California Board of Legal Specialization
>> This Firm is a Qualified Federal Debt Relief Agency
>> ________________________________________________
>> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
>> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
>
>
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Mark:
You say the debtor wants timely payments reported, but untimely payments will also be reported.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On May 15, 2015, at 11:10 PM, 'Mark J. Markus' bklawr@yahoo.com [cdcbaa] wrote:
>
> I guess I'm asking if there's any downside at all to reaffirming a mortgage in California. Clients want to be able to have the postpetition/post discharge payments reported as "on time" on credit reports.
>
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> Mailing Address Only:
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)332-1180 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
>
>> On 5/15/2015 8:48 PM, cdcbaa cdcbaamailbox@gmail.com [cdcbaa] wrote:
>> Mark:
>> Are you asking if preemption applies? No. A reaffirmation agreement would have to have specific language saying the loan becomes recourse for a court order in a Federal Court to preempt state law. I have never seen anything like that, and expect most judges would not sign such a reaff.
>>
>> d
>>
>> Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
>>
>>
>> On May 15, 2015, at 10:36 AM, 'Mark J. Markus' bklawr@yahoo.com [cdcbaa] wrote:
>>
>>>
>>> I know there's been a lot posted on this topic, but I had a specific question:
>>>
>>> If a debtor reaffirms an otherwise non-recourse mortgage, does the reaffirmation convert that into a recourse loan?
>>>
>>>
>>>
>>> *************************
>>> Mark J. Markus
>>> Law Office of Mark J. Markus
>>> Mailing Address Only:
>>> 11684 Ventura Blvd. PMB #403
>>> Studio City, CA 91604-2652
>>> (818)509-1173 (818)332-1180 (fax)
>>> web: http://www.bklaw.com/
>>> Certified Bankruptcy Law Specialist--The State Bar of California Board of Legal Specialization
>>> This Firm is a Qualified Federal Debt Relief Agency
>>> ________________________________________________
>>> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
>>> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
>
>
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On May 15, 2015, at 11:10 PM, 'Mark J. Markus' bklawr@yahoo.com [cdcbaa] <
I guess I'm asking if there's any
downside at all to reaffirming a mortgage in California. Clients
want to be able to have the postpetition/post discharge payments
reported as "on time" on credit reports.
*************************
Mark J. Markus
Law Office of Mark J. Markus
Mailing Address Only:
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)332-1180 (fax)
web: http://www.bklaw.com/
Certified Bankruptcy Law Specialist--The State Bar of
California Board of Legal Specialization
This Firm is a Qualified Federal Debt Relief Agency
The post was migrated from Yahoo.
Well.. check out this beauty:
"The court disapproves the reaffirmation agreement between the debtors and
JP Morgan Chase Bank, N.A., because the debt in question is a home equity
loan, which is, under Texas law, a nonrecourse obligation. Thus, *there is
nothing to "discharge" and so nothing to reaffirm*. Reaffirmation
agreements of such loans are inappropriate ... so as to impose a liability
on the debtor, a liability for which the debtor, under nonbankruptcy law,
clearly has no liability."
The post was migrated from Yahoo.
Mark:
Are you asking if preemption applies? No. A reaffirmation agreement would have to have specific language saying the loan becomes recourse for a court order in a Federal Court to preempt state law. I have never seen anything like that, and expect most judges would not sign such a reaff.
d
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On May 15, 2015, at 10:36 AM, 'Mark J. Markus' bklawr@yahoo.com [cdcbaa] wrote:
>
> I know there's been a lot posted on this topic, but I had a specific question:
>
> If a debtor reaffirms an otherwise non-recourse mortgage, does the reaffirmation convert that into a recourse loan?
>
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> Mailing Address Only:
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)332-1180 (fax)
> web: http://www.bklaw.com/
> Certified Bankruptcy Law Specialist--The State Bar of California Board of Legal Specialization
> This Firm is a Qualified Federal Debt Relief Agency
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
>
>
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Mark,
I would say no. California is a "non-recourse" state and we also have the
One Action Rule in place. I would add that reaffirmation would only
determine whether the debt is dischargeable and does not change the terms
of the loan agreement, like a loan modification might.
Others might opine in more depth, but that's my .02
Happy Friday!
Christine
Christine A. Kingston, Esq.
Law Office of Christine A. Kingston
5011 Argosy Avenue, Suite 3
Huntington Beach, CA 92649
Office: 714-533-9210
Fax: 714-489-8150
Email: attorneychristine@gmail.com
Blog: www.losangelesbankruptcylawmonitor.com
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