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Is Reaffirmation Valid to Change Terms of Note
I think debtor has a strong argument that court approval is not required on
reaffirmations of real estate loans, per 524(c)(6)(B), so long as the other
requirements of 524(c) are met. If those requirements are met, I think the
reaffirmation agreement would bind both parties.
If the lender is not persuaded that my interpretation of 524(c)(6)(B) is
correct, and you need to seek enforcement, my guess would be that you could
look into filing an adversary proceeding in bankruptcy court seeking
declaratory relief in the form of an Order confirming that court approval
of the reaffirmation was not required in order to make the reaffirmation
agreement binding.
Best regards,
Clifford Bordeaux
Cohen & Bordeaux, LLP
3731 Wilshire Boulevard, Suite 600
Los Angeles, CA 90010
Certified Bankruptcy Specialist*
cliff@cohenbordeaux.com
www.cohenbordeaux.com
T (213) 267-1000
F (213) 805-6540
*By State Bar of California Board of Legal Specialization
On Fri, Dec 5, 2014 at 5:57 PM, 'Gerald McNally' gm@mcesq.com [cdcbaa] wrote:
>
>
> Listmates:
>
>
>
> Client gave me these facts:
>
>
>
> In 2010, Client and spouse obtained a loan mod with an interest rate
> reduction of 3%, which was stated to be for only 5 years, after which time
> the interest rate would revert to 6.5%
>
>
>
> In 2011, spouse files Ch7; no reaff of mortgage
>
>
>
> In 2014, client files Ch7; this time, however, Loan Servicer (in Florida)
> originates a reaff document which states that the reduced interest rate is
> fixed for the remainder of the loan. Both client and spouse sign the reaff
> (Servicer whites out spouses signature)
>
>
>
> Later in 2014, but before the discharge, Loan Servicer files the reaff
> with the Court; the Court then immediately files a notice that the Court
> will not rule on the validity of the reaff.
>
>
>
> Now, the Servicer has notified Client and Spouse that the interest rate
> will rise next year from 3.5% to 6.5%.
>
>
>
> Questions:
>
>
>
> Does the reaff act as a novation?
>
>
>
> Can it be enforced in the Bankruptcy Court? If not there, then where?
>
>
>
> Against whom can it be enforced? Client? Spouse? Both?
>
>
>
> Is there anything else I should know. (Servicer is Ocwen; note holder
> believed to be Wells)
>
>
>
> Gerald McNally
>
>
>
> [image: McNally Bus Card Smaller]
>
>
>
> Gerald McNally
>
> McNally & Associates, P.C.
>
> 517 East Wilson Ave., Ste 104
>
> Glendale, CA 91206
>
> 818.507.5100
>
> Fax: 818.507.5001
>
>
>
> Notice to Recipient: This email is meant for only the intended recipient
> of the transmission and may be a communication privileged by law. If you
> received this email in error, and review, use, dissemination, distribution
> or copying of this email is strictly prohibited. Please notify us
> immediately of the error by return email and please delete this message and
> any and all duplicates of this message from your system. Thank you in
> advance for your cooperation.
>
>
>
> *IRS Circular 230 Disclosure: In order to comply with the requirements
> imposed by the Internal Revenue Service, we inform you that any U.S. tax
> advice contained in this communication (including any attachments) is not
> intended 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 herein.*
>
>
>
>
>
I think debtor has a strong argument that court approval is not required on reaffirmations of real estate loans, per 524(c)(6)(B), so long as the other requirements of 524(c) are met. If those requirements are met, I think the reaffirmation agreement would bind both parties.If the lender is not persuaded that my interpretation of 524(c)(6)(B) is correct, and you need to seek enforcement, my guess would be that you could look into filing an adversary proceeding in bankruptcy court seeking declaratory relief in the form of an Order confirming that court approval of the reaffirmation was not required in order to make the reaffirmation agreement binding.Best regards,Clifford BordeauxCohen & Bordeaux, LLP3731 Wilshire Boulevard, Suite 600Los Angeles, CA 90010Certified Bankruptcy Specialist*cliff@cohenbordeaux.comwww.cohenbordeaux.comT (213) 267-1000F (213) 805-6540*By State Bar of California Board of Legal Specialization
On Fri, Dec 5, 2014 at 5:57 PM, 'Gerald McNally' gm@mcesq.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
Listmates:Client gave me these facts:In 2010, Client and spouse obtained a loan mod with an interest rate reduction of 3%, which was stated to be for only 5 years, after which time the interest rate would revert to 6.5%In 2011, spouse files Ch7; no reaff of mortgageIn 2014, client files Ch7; this time, however, Loan Servicer (in Florida) originates a reaff document which states that the reduced interest rate is fixed for the remainder of the loan. Both client and spouse sign the reaff (Servicer whites out spouses signature)Later in 2014, but before the discharge, Loan Servicer files the reaff with the Court; the Court then immediately files a notice that the Court will not rule on the validity of the reaff.Now, the Servicer has notified Client and Spouse that the interest rate will rise next year from 3.5% to 6.5%.Questions:Does the reaff act as a novation?Can it be enforced in the Bankruptcy Court? If not there, then where?Against whom can it be enforced? Client? Spouse? Both?
The post was migrated from Yahoo.
Listmates:
Client gave me these facts:
In 2010, Client and spouse obtained a loan mod with an interest rate
reduction of 3%, which was stated to be for only 5 years, after which time
the interest rate would revert to 6.5%
In 2011, spouse files Ch7; no reaff of mortgage
In 2014, client files Ch7; this time, however, Loan Servicer (in Florida)
originates a reaff document which states that the reduced interest rate is
fixed for the remainder of the loan. Both client and spouse sign the reaff
(Servicer whites out spouse's signature)
Later in 2014, but before the discharge, Loan Servicer files the reaff with
the Court; the Court then immediately files a notice that the Court will not
rule on the validity of the reaff.
Now, the Servicer has notified Client and Spouse that the interest rate will
rise next year from 3.5% to 6.5%.
Questions:
Does the reaff act as a novation?
Can it be enforced in the Bankruptcy Court? If not there, then where?
Against whom can it be enforced? Client? Spouse? Both?
Is there anything else I should know. (Servicer is Ocwen; note holder
believed to be Wells)
Gerald McNally
Gerald McNally
McNally & Associates, P.C.
517 East Wilson Ave., Ste 104
Glendale, CA 91206
818.507.5100
Fax: 818.507.5001
Notice to Recipient: This email is meant for only the intended recipient of
the transmission and may be a communication privileged by law. If you
received this email in error, and review, use, dissemination, distribution
or copying of this email is strictly prohibited. Please notify us
immediately of the error by return email and please delete this message and
any and all duplicates of this message from your system. Thank you in
advance for your cooperation.
IRS Circular 230 Disclosure: In order to comply with the requirements
imposed by the Internal Revenue Service, we inform you that any U.S. tax
advice contained in this communication (including any attachments) is not
intended 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 herein.
The post was migrated from Yahoo.