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Rescission of Reaffirmation Agreement Two Years Post Discharge
Per Rutter, a BK case out of Maryland (in re Mandrell) permitted rescission
after the 60 day limit based on mutual mistake. Rutter also suggests that
State courts have concurrent jurisdiction for such challenges, which I
interepret to mean that an action for rescission could be brought at the
State Court level even if the BK Court rules prohibit such a challenge at
the BK Court level.
Wouldn't the other alternative be to simply keep tendering the amount in
the reaff agreement and challenge any collection or foreclosure effort
based on the reaff agreement? That type of delay would however create
continued negative credit reporting by the mortgagee? Any other thoughts
out there??
John Boyko
LAW OFFICES OF JOHN M. BOYKO
3521 Lomita Blvd., Suite 100
Torrance, CA 90505
310-750-6789 (Office)
424-201-2611 (Fax)
"jboykolaw.com"
Per Rutter, a BK case out of Maryland (in re Mandrell) permitted rescission after the 60 day limit based on mutual mistake. Rutter also suggests that State courts have concurrent jurisdiction for such challenges, which I interepret to mean that an action for rescission could be brought at the State Court level even if the BK Court rules prohibit such a challenge at the BK Court level.
Wouldn't the other alternative be to simply keep tendering the amount in the reaff agreement and challenge any collection or foreclosure effort based on the reaff agreement? That type of delay would however create continued negative credit reporting by the mortgagee? Any other thoughts out there??
-- John BoykoLAW OFFICES OF JOHN M. BOYKO3521 Lomita Blvd., Suite 100Torrance, CA 90505310-750-6789 (Office)424-201-2611 (Fax)"jboykolaw.com"
The post was migrated from Yahoo.
It's not allowed by Code. Is there a local rule?
On Mar 26, 2013 4:34 PM, "JMB2BLB" wrote:
> **
>
>
> New client reaffirmed mortgage debt prior to discharge in Ch7 case in
> 2010. The reaffirmation agreement changed her mortgage from an ARM to a
> fixed rate loan with specified payments for the balance of the loan. In
> 2013, the mortgage lender sends the client a notice of change of payments,
> increasing the mortgage payment by $1,100 per month based on ARM
> adjustment. Client cannot affor the increased payment. Reviewing the
> reaffirmation agreement I find that the calculation of the monthly payment
> in the agreement was incorrectly calculated by the creditor (it should have
> been higher). Is rescission based on mistake available in Central District
> this far post discharge? Judge Bluebond was Ch7 judicial officer.
>
>
>
It's not allowed by Code. Is there a local rule?
On Mar 26, 2013 4:34 PM, "JMB2BLB" <jboyko@gmail.com> wrote:
New client reaffirmed mortgage debt prior to discharge in Ch7 case in 2010. The reaffirmation agreement changed her mortgage from an ARM to a fixed rate loan with specified payments for the balance of the loan. In 2013, the mortgage lender sends the client a notice of change of payments, increasing the mortgage payment by $1,100 per month based on ARM adjustment. Client cannot affor the increased payment. Reviewing the reaffirmation agreement I find that the calculation of the monthly payment in the agreement was incorrectly calculated by the creditor (it should have been higher). Is rescission based on mistake available in Central District this far post discharge? Judge Bluebond was Ch7 judicial officer.
The post was migrated from Yahoo.
New client reaffirmed mortgage debt prior to discharge in Ch7 case in 2010. The reaffirmation agreement changed her mortgage from an ARM to a fixed rate loan with specified payments for the balance of the loan. In 2013, the mortgage lender sends the client a notice of change of payments, increasing the mortgage payment by $1,100 per month based on ARM adjustment. Client cannot affor the increased payment. Reviewing the reaffirmation agreement I find that the calculation of the monthly payment in the agreement was incorrectly calculated by the creditor (it should have been higher). Is rescission based on mistake available in Central District this far post discharge? Judge Bluebond was Ch7 judicial officer.
The post was migrated from Yahoo.