Settling a 2nd mortgage in default
- Thread starter mselle
- Start date
Survivor_IN
LoanSafe Member
Here's a thought on it. This might be the difference between collecting on a mortgage and collecting on a note. Although it's hard to separate the two. BK discharges liability on the debt and would be a BK violation to attempt collection of payment from you personally (in absence of negotiating lien voluntarily and submitting an application). Can't say it doesn't change the accounting of interest, but somehow this (inflated debt) is material to their credit bid at a foreclosure sale. Plus you also need the accounting if you choose to voluntarily pay off in full. Maybe if they can't collect on the mortgage/mortgage interest, they pursue collection on the note instead??? Notes guarantee specific amount. Those have diff SOL. Haven't seen it argued anywhere tho. As far as I know, the proof of standing is STILL ownership of the Note (show me the note defense). Mortgage meaningless without Note and standing to foreclose.
Survivor_IN
LoanSafe Member
Tecnically, any interest owed before your BK is waived (against you). If that amount is 10K interest then your settlement should include this reduction at minimum.
Just a dumb question, have you spoken to Eric about a possible refi? I know interest rates are pretty low right now and maybe he could refi both 1st and 2nd into one loan. I know he has had some successes on here. Also, have they sent you any documentation showing how the interest accrued monthly? I still question how they can continue to charge interest if they are not sending a monthly statement showing the accrual. Sorry if these are stupid questions. Would it be any help to send a complaint to CFPB ? The crap they are doing with one bank owning both loans and not trying to collect on 2nd until you owe a shitload of interest should be criminal. This was planned, and I don't see how they get rewarded by sitting on an outstanding loan while collecting on first and not saying anything for years. Both my 1st and 2nd are owned by Duetsche, which is a criminal enterprise for 13 years with not one word from them. I apologize for taking up space and asking questions. I hope all works out well in the end. Keep on fighting. But please don't let it ruin the holidays with your children. Time with them is too precious. Good Luck!!
Yeah...before the bk was not much. Only had the loan for 2 yrs. Its been collecting interest for 13 yrs which is my biggest argument
Even more discouraging is this forum (link below) that I've been asking questions on. Ppl pretty much saying pay the full amount, sell on your own or prepare for them to foreclose and lose all.
Interest accruing - Bankruptcy Forum Chapter 7 13 341 Meeting Credit Collections
Please explain to me how interest on a 2nd mortgage (line of equity) that was included in BK7 (not reaffirmed) can continue to collect interest if the "debt" is discharged and it only now exists as a lien. I am now facing the lien holder (from an 80/20 split) threatening to foreclose on the...
www.bkforum.com
It appears that your past BK throws a wrench in middle of this. I wonder since both 1st and 2nd are owned by BofA if there is any way to approach BofA directly. Apparently you have been paying regularly on your 1st and can stress this to them. Maybe talk to a real estate attorney to see if this is a possibility. Below is a link to a very well known foreclosure defense attorney. They offer a free consultation.
Forclosure Defense Attorney | Castle Law Group Tampa, FL
If you need legal advice on a forclosure give us a call. Our average client is probably $150,000.00 upside-down in a primary residence or an investment property. We offer forclosure defense, deed-in-lieu, pre-foreclosure, strategic defense consulting and more.
www.castlelawgrouppa.com
Thanks. On this second lien according to county is now owed by New York bank of mellon as of 2018. And the 1st has been reassigned so many time I can't even count.It appears that your past BK throws a wrench in middle of this. I wonder since both 1st and 2nd are owned by BofA if there is any way to approach BofA directly. Apparently you have been paying regularly on your 1st and can stress this to them. Maybe talk to a real estate attorney to see if this is a possibility. Below is a link to a very well known foreclosure defense attorney. They offer a free consultation.
Forclosure Defense Attorney | Castle Law Group Tampa, FL
If you need legal advice on a forclosure give us a call. Our average client is probably $150,000.00 upside-down in a primary residence or an investment property. We offer forclosure defense, deed-in-lieu, pre-foreclosure, strategic defense consulting and more.www.castlelawgrouppa.com
One other lurking thought that I keep pushing aside...is regardless of all my attemps/research to find an error...they could technically just force me to pay the original note $42k + the 60k or just foreclosure. Or when the argument of SOL is presented to use as negotiation...they could just say...ok...then we will just foreclosure. Sure, I guess I could respond with filling chp13 but damn...it. that will still put me paying it. I have only student loans left.
So more findings..I cannot find anything what so ever saying its against the law to accrue interest as they are. Its legal robbery! And most laws are written tricky i.e. SOL with mortgage is based on the accelerated date. So technically 2 weeks ago starts the clock in MI. I'm hiring an attorney, they won't negotiate without knowing pay off of 1st and I not giving the that if they won't provide me valuable information by responding to my QWR...which is my right and by law they have to respond in 30 days.
Hopefully you had a wonderful Xmas with your daughter. I hope your lawyer can bring this to some kind of settlement to keep you in your house. One thing I would take a look at is what they did when they did a mod on your first. Alot of the mods that were done only lowered the payment by extending the payment to a 45 year mortgage payment. However, your mortgage will still end at 30 years. This means you will still owe a sizeable sum when the 30 years end. You will then have to pay off the remaining principal or refinance the remaining amount. It may be a good idea to somehow negotiate a refinance rolling your 2nd and 1st into a new loan with a lower interest rate if possible. I have been lucky enough to not have the 2nd come after me yet. I'm surprised because Deutsche knows my property has doubled in value and they own both 1st and 2nd. The only thing I can think of is they cannot prove chain of title for 2nd. My 1st and second still show New Century Mortgage that went out of business in 2008 and and started this whole mess. Good Luck and please keep us informed.
Oh if you mean wonderful, by receiving another "inspector visited" letter on my door Xmas eve...then yes! Lol. Thank you though! I hope you had a nice holiday as well. I've been looking at all approaches...looking at how my bk7 attorney spilt the 2nd and if it would help that only a tiny portion was secured. Idk...I know its a reach. It was alway 14...14...years ago. I know stripping or cramdown is not allowed now in bk7 but who knows. Attorney helped send a cash offer letter so fingers crossed. I want to refi after this and of they don't accept the cash off then I will have to refi because anything more I can't pull. That's if house will even appraise to support what their seeking then. This is a nightmare and having an attorney so far has been $$$ but at least the burden is "shared".
No real update...continuing to wait for a response to the two QWR's I sent. They continue to ignore emails from my attorney and recently sent me a letter stating that my loss mitigation application was denied (which by the way, I never filled out or submitted ap app yet). I want more info from them i.e. record log of the $60k interest to a $40k loan, proof they have rights to release lien. I'm not just going to fill out all these firms and pay for something without understanding it.
I happened upon some documents in regards to new mortgage laws from 2013. Take a look at page 9 in the below document. It is in regards to charging interest and providing statements. It's somewhat legalese but maybe it could help you with these idiots and the money they are trying to get. The following is in regards to periodic statements and charging interest. This is from 2013 mortgage rules and part of RESPA. Item 3 is what interests me because I have never received a statement saying I owe anything at all.
8. Periodic statements. The Bureau is finalizing several requirements relating to periodic statements. The final rule: (1) clarifies certain periodic statement disclosure requirements relating to mortgage loans that have been accelerated, are in temporary loss mitigation programs, or have been permanently modified, to conform generally the disclosure of the amount due with the Bureau’s understanding of the legal obligation in each of those circumstances, including that the amount due may only be accurate for a specified period of time when a mortgage loan has been accelerated; (2) requires servicers to send modified periodic statements (or coupon books, where servicers are otherwise permitted to send coupon books instead of periodic statements) to consumers who have filed for bankruptcy, subject to certain exceptions, with content varying depending on whether the consumer is a debtor in a chapter 7 or 11 bankruptcy case, or a chapter 12 or 13 bankruptcy case; and includes proposed sample periodic statement forms that servicers may use for consumers in bankruptcy to ensure compliance with § 1026.41; and (3) exempts servicers from the periodic statement requirement for charged-off mortgage loans if the servicer will not charge any additional fees or interest on the account and provides a periodic statement including additional disclosures related to the effects of charge-of f.
8. Periodic statements. The Bureau is finalizing several requirements relating to periodic statements. The final rule: (1) clarifies certain periodic statement disclosure requirements relating to mortgage loans that have been accelerated, are in temporary loss mitigation programs, or have been permanently modified, to conform generally the disclosure of the amount due with the Bureau’s understanding of the legal obligation in each of those circumstances, including that the amount due may only be accurate for a specified period of time when a mortgage loan has been accelerated; (2) requires servicers to send modified periodic statements (or coupon books, where servicers are otherwise permitted to send coupon books instead of periodic statements) to consumers who have filed for bankruptcy, subject to certain exceptions, with content varying depending on whether the consumer is a debtor in a chapter 7 or 11 bankruptcy case, or a chapter 12 or 13 bankruptcy case; and includes proposed sample periodic statement forms that servicers may use for consumers in bankruptcy to ensure compliance with § 1026.41; and (3) exempts servicers from the periodic statement requirement for charged-off mortgage loans if the servicer will not charge any additional fees or interest on the account and provides a periodic statement including additional disclosures related to the effects of charge-of f.
Great find. There a few motions for me that can be filed against them. 1. Improper notice of rate changes Akthough they could argue that open-end lines of credit (home equity plans) are generally exempt from the requirements in the 2013 RESPA Servicing Final Rule. 2. Not responding to my QWR, although again, many details they could argue they are exempt. I'm still entitled to see they have rights to my note and can show the chain of transfer...if they can't the I can move to a quite title. 3. My BK accelerated the maturity date of the debt ...puting the lender on a definite.
The thing that really sucks is the lawyer fees, they can be ridiculous. I have thought about going the Quiet Title route because I don't believe they could find the documents. The problem is I live in FL where banks rule. Their have been judges that granted banks to be paid with no docs, the judge stating that homeowner owed somebody, so why not the bank that showed up. Ridiculous. I am prob going to talk to a lawyer, I am hoping that they can't charge the interest. I'm putting my house up for sale. The prices are so ridiculous right now that it makes the most sense in order to get the sleeping monkey off my back.
I've actually been talking with ppl all over the U.S and have received advice/help as to how to battle this. in Florida it is a 5-yr statute of limitation - that is ... absent the Bartram decision in Florida. Did you do a bankruptcy? The discharge should accelerate the maturity date because no monthly payments are due and no way for interestto accrue. I suggest reaching out to Ben, he is in Florida. He's actually helped me when he does not even practice in my state...to me thats shows that some cares and is willing to fight with you and for you.
Benjamin Hillard, Esq.
www.CastleLawGroupPA.com