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Mortgage Deficiency Balance After Loanmod
Look at reaff cases. No reaff, you have not complied with Federal Law. No liability.
Dennis McGoldrick
350 S. Crenshaw Bl., #A207B
Torrance, CA 90503
On May 25, 2010, at 4:28 PM, "Hale Andrew Antico" wrote:
Ty, if property was surrendered, absent loan mods, we can all agree there is
no liability on the second post-discharge, normally.
Christine, wouldn't the timing of the execution of the contract be a factor?
These facts have a post-filing promise to pay a debt that otherwise would
have been discharged.
John, I think I'm saying the same thing as you.
Mark, at the time of the loanmod signing, I'm not sure the second was
discharged since Chapter 7 doesn't discharge 2nds where debtor still has
possession (assuming a fact, or else why would he do the loanmod)?
Summing up:
Filing--> Discharge--> Surrender: NO LIABILITY
LOANMOD--> Filing--> Discharge--> Surrender: NO LIABILITY
Filing--> LOANMOD--> Discharge--> Surrender: LIABILITY
Filing--> Discharge--> LOANMOD--> Surrender: LIABILITY
The latter is Ty's case.
Of course, I could be wrong.
Hale
Mike from SLO
Sent: Tuesday, May 25, 2010 12:44 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Mortgage Deficiency Balance After Loanmod
Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which is
discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
thereafter and losses home to 1st TD at foreclosure sale. Is he on the hook
for the 2nd TD's deficiency because of the loansmod?
Ty Takeuchi
Look at reaff cases. No reaff, you have not complied with Federal Law. No liability.Dennis McGoldrick350 S. Crenshaw Bl., #A207BTorrance, CA 90503On May 25, 2010, at 4:28 PM, "Hale Andrew Antico" <bk.lawyer@gmail.com> wrote:
Ty, if property was surrendered, absent loan mods, we can all agree there is
no liability on the second post-discharge, normally.
Christine, wouldn't the timing of the execution of the contract be a factor?
These facts have a post-filing promise to pay a debt that otherwise would
have been discharged.
John, I think I'm saying the same thing as you.
Mark, at the time of the loanmod signing, I'm not sure the second was
discharged since Chapter 7 doesn't discharge 2nds where debtor still has
possession (assuming a fact, or else why would he do the loanmod)?
Summing up:
Filing--> Discharge--> Surrender: NO LIABILITY
LOANMOD--> Filing--> Discharge--> Surrender: NO LIABILITY
Filing--> LOANMOD--> Discharge--> Surrender: LIABILITY
Filing--> Discharge--> LOANMOD--> Surrender: LIABILITY
The latter is Ty's case.
Of course, I could be wrong.
Hale
yahoogroups.com">cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of
Mike from SLO
Sent: Tuesday, May 25, 2010 12:44 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Mortgage Deficiency Balance After Loanmod
Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which is
discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
thereafter and losses home to 1st TD at foreclosure sale. Is he on the hook
for the 2nd TD's deficiency because of the loansmod?
Ty Takeuchi
The post was migrated from Yahoo.
No, only a reaffirmation is a reaffirmation.
Dennis McGoldrick
350 S. Crenshaw Bl., #A207B
Torrance, CA 90503
On May 25, 2010, at 5:42 PM, John Faucher wrote:
Hello Mark -
If the second mortgage is discharged, but the debtors sign a post-discharge loan modification, would that loan mod create new post-petition indebtedness?
- John D. Faucher
On 5/25/10 5:29 PM, "Mark T.Jessee" wrote:
Hale:
Sure the 2nd mortgage is discharged and so is the first. It is irrelevant whether the debtor is in possession. The lien of course still exists, but their is no recorse against the debtor other than foreclosure.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY
US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
On Tue 25/05/10 4:28 PM , "Hale Andrew Antico" bk.lawyer@gmail.com sent:
Ty, if property was surrendered, absent loan mods, we can all agree there is
no liability on the second post-discharge, normally.
Christine, wouldn't the timing of the execution of the contract be a factor?
These facts have a post-filing promise to pay a debt that otherwise would
have been discharged.
John, I think I'm saying the same thing as you.
Mark, at the time of the loanmod signing, I'm not sure the second was
discharged since Chapter 7 doesn't discharge 2nds where debtor still has
possession (assuming a fact, or else why would he do the loanmod)?
Summing up:
Filing--> Discharge--> Surrender: NO LIABILITY
LOANMOD--> Filing--> Discharge--> Surrender: NO LIABILITY
Filing--> LOANMOD--> Discharge--> Surrender: LIABILITY
Filing--> Discharge--> LOANMOD--> Surrender: LIABILITY
The latter is Ty's case.
Of course, I could be wrong.
Hale
Mike from SLO
Sent: Tuesday, May 25, 2010 12:44 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Mortgage Deficiency Balance After Loanmod
Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which is
discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
thereafter and losses home to 1st TD at foreclosure sale. Is he on the hook
for the 2nd TD's deficiency because of the loansmod?
Ty Takeuchi
- John D. Faucher
No, only a reaffirmation is a reaffirmation.Dennis McGoldrick350 S. Crenshaw Bl., #A207BTorrance, CA 90503On May 25, 2010, at 5:42 PM, John Faucher <j.d.faucher@sbcglobal.net> wrote:
Hello Mark -
If the second mortgage is discharged, but the debtors sign a post-discharge loan modification, would that loan mod create new post-petition indebtedness?
- John D. Faucher
On 5/25/10 5:29 PM, "Mark T.Jessee" <mjessee@jesseelaw.com> wrote:
Hale:
Sure the 2nd mortgage is discharged and so is the first. It is irrelevant whether the debtor is in possession. The lien of course still exists, but their is no recorse against the debtor other than foreclosure.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,
DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY
US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
On Tue 25/05/10 4:28 PM , "Hale Andrew Antico" bk.lawyer@gmail.com sent:
Ty, if property was surrendered, absent loan mods, we can all agree there is
no liability on the second post-discharge, normally.
Christine, wouldn't the timing of the execution of the contract be a factor?
These facts have a post-filing promise to pay a debt that otherwise would
have been discharged.
John, I think I'm saying the same thing as you.
Mark, at the time of the loanmod signing, I'm not sure the second was
discharged since Chapter 7 doesn't discharge 2nds where debtor still has
possession (assuming a fact, or else why would he do the loanmod)?
Summing up:
Filing--> Discharge--> Surrender: NO LIABILITY
LOANMOD--> Filing--> Discharge--> Surrender: NO LIABILITY
Filing--> LOANMOD--> Discharge--> Surrender: LIABILITY
Filing--> Discharge--> LOANMOD--> Surrender: LIABILITY
The latter is Ty's case.
Of course, I could be wrong.
Hale
a href"mailto:cdcbaa@yahoogroups.com">mailto:cdcbaa@yahoogroups.com] On Behalf Of
Mike from SLO
Sent: Tuesday, May 25, 2010 12:44 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Mortgage Deficiency Balance After Loanmod
Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which is
discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
thereafter and losses home to 1st TD at foreclosure sale. Is he on the hook
for the 2nd TD's deficiency because of the loansmod?
Ty Takeuchi
The post was migrated from Yahoo.
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I think I'm aLOUidiot because I can'tfigure out whatis wrongmost of the timeI get one of these and I hate bothering the clerks... Calgon take me way!
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Is anyone else getting frustrated with these messages?
The reason(s) for rejection is/are as follows:- Proof of Service, Notice of Entered Order, or Service List missing or defective
I think I'm a LOU idiot because I can't figure out what is wrong most of the time I get one of these and I hate bothering the clerks... Calgon take me way! Peter M. Lively, JD/MBALaw Office of Peter M. Lively * Personal Financial Law Center I11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462 A-Bankruptcy-Attorney.comPersonal Financial Law Center II - Costa Mesa, CA
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
The post was migrated from Yahoo.
If the loan was used to purchase the borrower's personal residence
it is nonrecourse. If loan was not used to purchase the personal
residence it is recourse. Does not matter if it is first, second,
third etc. - what matters is whether it was used to purchase the
personal residence. This is based on CA law only. The one action
rule of Civil Procedure Code Section 726(a) prohibits lenders who have
foreclosed through nonjudicial foreclosure proceedings in CA from then
pursuing any deficiency balance on that note secured by the deed of
trust. This would only be relevant when the home loan was recourse,
i.e. not used to purchase the personal residence. Remember junior
trust deeds were not the ones pursuing the nonjudidical foreclosure
and if not paid through the foreclosure sale can pursue the borrower
for the deficiency balance due, again only if it was recourse loan.
I have not researched whether under California law a loan
modification of a purchase money deed of trust turns that loan into a
nonpurchase money obligation and accordingly recourse. From a
strictly logical analysis I would say no, because it is the same loan,
just the repayment terms have changed.
Once the borrower files for bankruptcy relief and is granted a
discharge, the analysis changes by operation of the federal bankruptcy
code. Unless a debt is formally reaffirmed following the procedures
set forth in Section 524(c) and(d), the debt is discharged. The
liability is discharged, even though the lien securing the property
still exists. THERE IS NO REQUIREMENT WHATSOEVER FOR THE DEBTOR TO
SURRENDER THEIR HOME TO OBTAIN A DISCHARGE OF THE LIABILITY ON ANY
DEEDS OF TRUST SECURING THE PROPERTY. Debtor pays postpetition: they
can keep the home. Debtor does not pay: lender ultimately will
foreclose and then cannot pursue the debtor for any deficiency.
Postpetition home loan modification is no different than any other
creditor trying to craft a reaffirmation agreement that does meet the
requirements set forth in the bankruptcy code in Section 524(c) and
(d). Any such contracts are not enforceable for money against the
discharged debtor and if the lender sought money from a discharged
debtor then such efforts would constitute a violation of the discharge
injunction. The debt to that lender was discharged period!
Modification of payment terms of the discharged debt do not make it an
enforceable contract, because Section 524(c) and (d) protect
unsophisticated bankruptcy debtors from creditors' crafty attempts to
skirt the effect of the bankruptcy discharge. If a mortgage lender
could convince a discharged debtor to "modify" a loan in some way
postdishcharge in order to make the mortgage magically legally
enforceable for any unpaid balance, then so could every other
creditor, secured or unsecured. Think of the Social Policy issue
involved. Why would there be so many hoops to jump through to ensure
the debtor is protected from the creditors and that reaffirmation is
in the debtor's best interests if the lender just simply has to wait
until the discharged is entered in order to enter into a "modification
agreement" that contracts around the bankruptcy discharge injunction.
Admittedly, Congress, in its infinite lack of wisdom enacted many
irrational sections of the code. Fortunately it did not screw up the
effect of the discharge.
Refinances with a new note and deed of trust are a different story.
Loan modification is not a refinance. Loan modification is what the
name describes a modification of an existing debt.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED
RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE
PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE,
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On Tue 1/06/10 4:42 PM , Sina Maghsoudi sinamagh@yahoo.com sent:
I have a question. How do we know what type of second mortgage it
is? If the second mortgage was signed after the purchase of the
home, doesn't the debtor have liability unless the home was
surrendered. My understanding is that even without the loan mod the
2nd mortgage retains liability unless used to purchase home. If the
second mortgage was used to purchase home, then the loan mod changes
the type of mortgage so that it is no longer classified as used to
purchase the home and liability follows.
--- On TUE, 5/25/10, JOHN FAUCHER __ wrote:
Subject: Re: [cdcbaa] Mortgage Deficiency Balance After Loanmod
To: cdcbaa@yahoogroups.com
Date: Tuesday, May 25, 2010, 5:42 PM
Hello Mark -
If the second mortgage is discharged, but the debtors sign a
post-discharge loan modification, would that loan mod create new
post-petition indebtedness?
- John D. Faucher
On 5/25/10 5:29 PM, "Mark T.Jessee" wrote:
Hale:
Sure the 2nd mortgage is discharged and so is the first. It is
irrelevant whether the debtor is in possession. The lien of course
still exists, but their is no recorse against the debtor other than
foreclosure.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED
RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE
PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE,
DISSEMINATION,
DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED.
PLEASE NOTIFY
US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
On Tue 25/05/10 4:28 PM , "Hale Andrew Antico" bk.lawyer@gmail.com
sent:
Ty, if property was surrendered, absent loan mods, we can all agree
there is
no liability on the second post-discharge, normally.
Christine, wouldn't the timing of the execution of the contract be a
factor?
These facts have a post-filing promise to pay a debt that otherwise
would
have been discharged.
John, I think I'm saying the same thing as you.
Mark, at the time of the loanmod signing, I'm not sure the second
was
discharged since Chapter 7 doesn't discharge 2nds where debtor still
has
possession (assuming a fact, or else why would he do the loanmod)?
Summing up:
Filing--> Discharge--> Surrender: NO LIABILITY
LOANMOD--> Filing--> Discharge--> Surrender: NO LIABILITY
Filing--> LOANMOD--> Discharge--> Surrender: LIABILITY
Filing--> Discharge--> LOANMOD--> Surrender: LIABILITY
The latter is Ty's case.
Of course, I could be wrong.
Hale
-----Original Message-----
Behalf Of
Mike from SLO
Sent: Tuesday, May 25, 2010 12:44 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Mortgage Deficiency Balance After Loanmod
Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which
is
discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
thereafter and losses home to 1st TD at foreclosure sale. Is he on
the hook
for the 2nd TD's deficiency because of the loansmod?
Ty Takeuchi
- John D. Faucher
Links:
[1]
The post was migrated from Yahoo.
I have a question.How do we know what type of second mortgage it is?
If the second mortgage was signed after the purchase of the home, doesn't the debtor have liability unless the home was surrendered.
My understanding is that even without the loan mod the 2nd mortgage retains liability unless used to purchase home. If the second mortgage was used to purchase home, then the loan mod changesthe type of mortgage so that it is no longer classified as used to purchase the homeand liability follows.
The post was migrated from Yahoo.
No there is no postpetition indebtedness created with a loan
modification because the debt was already discharged. Of course if
there was a postpetition refinance with new note and deed of trust
that would be a different story. Similarly, if the debtor failed to
notice the 2nd trust deed lender of the bankruptcy and additionally
obtained the modification through fraud, there may be at least some
personal liability. However, loan modification is not a refinance but
a modification to the payment terms of the debt that was already
discharged. The second trust deed, presuming it was not purchase
money, would need to be reaffirmed prior to discharge pursuant to
Section 524(c) & (d) for there to be any personal liability remaining
on the loan. If the second trust deed was then modified postpetition,
personal liability would remain if it was not paid.
Even if the Court would entertain reaffirming a second trust deed
secured by real property at all, there would need to be some
significant benefit to the debtor to outweigh the loss of the
discharge on that second. If lenders will modify post discharge any
way, it would be beyond foolish to reaffirm. Regardless of
postpetition modification prospects, I think it is usually unwise to
reaffirm real property.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
On Tue 25/05/10 5:42 PM , John Faucher j.d.faucher@sbcglobal.net
sent:
Hello Mark -
If the second mortgage is discharged, but the debtors sign a
post-discharge loan modification, would that loan mod create new
post-petition indebtedness?
- John D. Faucher
On 5/25/10 5:29 PM, "Mark T.Jessee" wrote:
Hale:
Sure the 2nd mortgage is discharged and so is the first. It is
irrelevant whether the debtor is in possession. The lien of course
still exists, but their is no recorse against the debtor other than
foreclosure.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED
RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE
PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE,
DISSEMINATION,
DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED.
PLEASE NOTIFY
US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
On Tue 25/05/10 4:28 PM , "Hale Andrew Antico" bk.lawyer@gmail.com
[2] sent:
Ty, if property was surrendered, absent loan mods, we can all agree
there is
no liability on the second post-discharge, normally.
Christine, wouldn't the timing of the execution of the contract be a
factor?
These facts have a post-filing promise to pay a debt that otherwise
would
have been discharged.
John, I think I'm saying the same thing as you.
Mark, at the time of the loanmod signing, I'm not sure the second
was
discharged since Chapter 7 doesn't discharge 2nds where debtor still
has
possession (assuming a fact, or else why would he do the loanmod)?
Summing up:
Filing--> Discharge--> Surrender: NO LIABILITY
LOANMOD--> Filing--> Discharge--> Surrender: NO LIABILITY
Filing--> LOANMOD--> Discharge--> Surrender: LIABILITY
Filing--> Discharge--> LOANMOD--> Surrender: LIABILITY
The latter is Ty's case.
Of course, I could be wrong.
Hale
-----Original Message-----
On Behalf Of
Mike from SLO
Sent: Tuesday, May 25, 2010 12:44 PM
To: cdcbaa@yahoogroups.com [5]
Subject: [cdcbaa] Mortgage Deficiency Balance After Loanmod
Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which
is
discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
thereafter and losses home to 1st TD at foreclosure sale. Is he on
the hook
for the 2nd TD's deficiency because of the loansmod?
Ty Takeuchi
- John D. Faucher
Links:
[1] http://sitemail.siteprotect.com/mjessee@jesseelaw.com
[2] http://sitemail.siteprotect.com/bk.lawyer@gmail.com
[3] http://sitemail.siteprotect.com/cdcbaa@yahoogroups.com
[4] mailto:cdcbaa@yahoogroups.com
[5] http://sitemail.siteprotect.com/cdcbaa@yahoogroups.com
[6] mailto:cdcbaa@yahoogroups.com?subjectRe: [cdcbaa] Mortgage
Deficiency Balance After Loanmod
[7]
The post was migrated from Yahoo.
charset="US-ASCII"
Hello Mark -
If the second mortgage is discharged, but the debtors sign a post-discharge
loan modification, would that loan mod create new post-petition
indebtedness?
- John D. Faucher
On 5/25/10 5:29 PM, "Mark T.Jessee" wrote:
>
>
>
>
>
> Hale:
>
> Sure the 2nd mortgage is discharged and so is the first. It is irrelevant
> whether the debtor is in possession. The lien of course still exists, but
> their is no recorse against the debtor other than foreclosure.
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868
>
> NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
> THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY
> LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,
> DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY
> US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
> MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
>
> On Tue 25/05/10 4:28 PM , "Hale Andrew Antico" bk.lawyer@gmail.com sent:
>>
>> Ty, if property was surrendered, absent loan mods, we can all agree there is
>> no liability on the second post-discharge, normally.
>>
>> Christine, wouldn't the timing of the execution of the contract be a factor?
>> These facts have a post-filing promise to pay a debt that otherwise would
>> have been discharged.
>>
>> John, I think I'm saying the same thing as you.
>>
>> Mark, at the time of the loanmod signing, I'm not sure the second was
>> discharged since Chapter 7 doesn't discharge 2nds where debtor still has
>> possession (assuming a fact, or else why would he do the loanmod)?
>>
>> Summing up:
>>
>> Filing--> Discharge--> Surrender: NO LIABILITY
>> LOANMOD--> Filing--> Discharge--> Surrender: NO LIABILITY
>> Filing--> LOANMOD--> Discharge--> Surrender: LIABILITY
>> Filing--> Discharge--> LOANMOD--> Surrender: LIABILITY
>>
>> The latter is Ty's case.
>>
>> Of course, I could be wrong.
>> Hale
>>
>> -----Original Message-----
>> Mike from SLO
>> Sent: Tuesday, May 25, 2010 12:44 PM
>> To: cdcbaa@yahoogroups.com
>> Subject: [cdcbaa] Mortgage Deficiency Balance After Loanmod
>>
>> Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which is
>> discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
>> thereafter and losses home to 1st TD at foreclosure sale. Is he on the hook
>> for the 2nd TD's deficiency because of the loansmod?
>> Ty Takeuchi
>>
>
>
>
>
>>> - John D. Faucher
charset="US-ASCII"
Re: [cdcbaa] Mortgage Deficiency Balance After Loanmod
Hello Mark -
If the second mortgage is discharged, but the debtors sign a post-discharge loan modification, would that loan mod create new post-petition indebtedness?
- John D. Faucher
On 5/25/10 5:29 PM, "Mark T.Jessee" <mjessee@jesseelaw.com> wrote:
Hale:
Sure the 2nd mortgage is discharged and so is the first. It is irrelevant whether the debtor is in possession. The lien of course still exists, but their is no recorse against the debtor other than foreclosure.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,
DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY
US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
On Tue 25/05/10 4:28 PM , "Hale Andrew Antico" bk.lawyer@gmail.com sent:
Ty, if property was surrendered, absent loan mods, we can all agree there is
no liability on the second post-discharge, normally.
Christine, wouldn't the timing of the execution of the contract be a factor?
These facts have a post-filing promise to pay a debt that otherwise would
have been discharged.
John, I think I'm saying the same thing as you.
Mark, at the time of the loanmod signing, I'm not sure the second was
discharged since Chapter 7 doesn't discharge 2nds where debtor still has
possession (assuming a fact, or else why would he do the loanmod)?
Summing up:
Filing--> Discharge--> Surrender: NO LIABILITY
LOANMOD--> Filing--> Discharge--> Surrender: NO LIABILITY
Filing--> LOANMOD--> Discharge--> Surrender: LIABILITY
Filing--> Discharge--> LOANMOD--> Surrender: LIABILITY
The latter is Ty's case.
Of course, I could be wrong.
Hale
f"mailto:cdcbaa@yahoogroups.com">mailto:cdcbaa@yahoogroups.com] On Behalf Of
Mike from SLO
Sent: Tuesday, May 25, 2010 12:44 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Mortgage Deficiency Balance After Loanmod
Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which is
discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
thereafter and losses home to 1st TD at foreclosure sale. Is he on the hook
for the 2nd TD's deficiency because of the loansmod?
Ty Takeuchi
- John D. Faucher
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Hale:
Sure the 2nd mortgage is discharged and so is the first. It is
irrelevant whether the debtor is in possession. The lien of course
still exists, but their is no recorse against the debtor other than
foreclosure.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
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On Tue 25/05/10 4:28 PM , "Hale Andrew Antico" bk.lawyer@gmail.com
sent:
Ty, if property was surrendered, absent loan mods, we can all agree
there is
no liability on the second post-discharge, normally.
Christine, wouldn't the timing of the execution of the contract be a
factor?
These facts have a post-filing promise to pay a debt that otherwise
would
have been discharged.
John, I think I'm saying the same thing as you.
Mark, at the time of the loanmod signing, I'm not sure the second
was
discharged since Chapter 7 doesn't discharge 2nds where debtor still
has
possession (assuming a fact, or else why would he do the loanmod)?
Summing up:
Filing--> Discharge--> Surrender: NO LIABILITY
LOANMOD--> Filing--> Discharge--> Surrender: NO LIABILITY
Filing--> LOANMOD--> Discharge--> Surrender: LIABILITY
Filing--> Discharge--> LOANMOD--> Surrender: LIABILITY
The latter is Ty's case.
Of course, I could be wrong.
Hale
-----Original Message-----
On Behalf Of
Mike from SLO
Sent: Tuesday, May 25, 2010 12:44 PM
To: cdcbaa@yahoogroups.com [3]
Subject: [cdcbaa] Mortgage Deficiency Balance After Loanmod
Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which
is
discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
thereafter and losses home to 1st TD at foreclosure sale. Is he on
the hook
for the 2nd TD's deficiency because of the loansmod?
Ty Takeuchi
Links:
[1] mailto:cdcbaa@yahoogroups.com
[2] mailto:cdcbaa@yahoogroups.com
[3] mailto:cdcbaa@yahoogroups.com
[4] mailto:cdcbaa@yahoogroups.com?subjectRE: [cdcbaa] Mortgage
Deficiency Balance After Loanmod
[5]
The post was migrated from Yahoo.
Erm. . . okay what do I know. . . . I know not much. . . But is the Loan
Modification basically a Post-Petition Contract which incorporates by
reference terms of a contract pre-petition. Isn't it then new debt. No
Reaffirmation is required to make the debtor liable for the debt?
R. Grace
On Tue, May 25, 2010 at 2:54 PM, Dennis McGoldrick wrote:
>
>
> Only a reaf is a reaf
>
> Dennis McGoldrick
> 350 S. Crenshaw Bl., #A207B
> Torrance, CA 90503
>
> On May 25, 2010, at 12:43 PM, "Mike from SLO" wrote:
>
>
>
> Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which is
> discharged and subsequently signs loanmod on 2nd TD. Debtor defaults
> thereafter and losses home to 1st TD at foreclosure sale. Is he on the hook
> for the 2nd TD's deficiency because of the loansmod?
> Ty Takeuchi
>
>
>
>
R. Grace Rodriguez, Esq.
OFF: (818) 734-7223
CEL: (323) 304-5496
NO EX-PARTE NOTICE VIA VOICE MAIL OR EMAIL: I do not accept e-mail notice
for ex parte Applications via voicemail or by email. You must comply with
California Law and give notice to a person in my office during regular
business hours.
CONFIDENTIALITY STATEMENT: This message contains privileged and
confidential information and is intended only for the individual named. If
you are not the intended recipient you should not disseminate, distribute,
store, print, copy or deliver this message. Please notify the sender
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Erm. . . okay what do I know. . . . I know not much. . . But is the Loan Modification basically a Post-Petition Contract which incorporates by reference terms of a contract pre-petition. Isn't it then new debt. No Reaffirmation is required to make the debtor liable for the debt?
R. GraceOn Tue, May 25, 2010 at 2:54 PM, Dennis McGoldrick <easky1@yahoo.com> wrote:
Only a reaf is a reafDennis McGoldrick350 S. Crenshaw Bl., #A207BTorrance, CA 90503On May 25, 2010, at 12:43 PM, "Mike from SLO" <armen@tysonfirm.com> wrote:
Debtor owns home with 1st and 2nd trust deeds. Files a Ch.7 bk which is discharged and subsequently signs loanmod on 2nd TD. Debtor defaults thereafter and losses home to 1st TD at foreclosure sale. Is he on the hook for the 2nd TD's deficiency because of the loansmod?
Ty Takeuchi
-- R. Grace Rodriguez, Esq.OFF: (818) 734-7223CEL: (323) 304-5496NO EX-PARTE NOTICE VIA VOICE MAIL OR EMAIL: I do not accept e-mail notice for ex parte Applications via voicemail or by email. You must comply with California Law and give notice to a person in my office during regular business hours.
CONFIDENTIALITY STATEMENT: This message contains privileged and confidential information and is intended only for the individual named. If you are not the intended recipient you should not disseminate, distribute, store, print, copy or deliver this message. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system.
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