Your attorney was correct; you *are* required to list all debts
in your bankruptcy filings. And reaffirmation requires both
consent of your attorney and the Court, and a finding that the
reaffirmation is in *your* best interest (sometimes after a
hearing).

As far as the billing issue is concerned, lenders are sort of
****ed if they do, ****ed if they don't. The vast majority of my
clients want bills on secured loans sent to them, and get upset
when they aren't. Should Lender #2 have stopped after you told it
that you were surrendering the property? Yes. Is this a case that
I'd handle on a contingency basis? Probably not. I don't see the
judge getting horribly exercised over a secured lender sending
monthly bills.

(And, FWIW, the statement "This is not a bill" is irrelevant.
Either it's an attempt to collect a debt or it isn't. They
shouldn't have included a past due amount on it.)

--
Brett

************************************************** ***************
* Personal Injury/Malpractice Bankruptcy *
* *
* BRETT WEISS, P.C. *
* Attorneys at Law *
* Maryland, D.C. and Federal Bars *
* [email protected] *
* http://www.erols.com/lawyer *
* *
* Small Business Estates & Estate Planning *
************************************************** ***************

The Small Print: This response is for discussion purposes only.
It isn't meant to be legal advice and you shouldn't treat it as
such. If you want legal advice, speak with a local lawyer
familiar with your state's laws who can review *all* of the facts
and the law applicable to your situation.
************************************************** ***************


"Sharon" <[email protected]> wrote in message
news:[email protected] om...
Your reply as shown below has piqued my interest. We hired one
of
those "not so savvy" lawyers. A nice man, too nice, really.
He got
us through our BK 13 filing, conversion to BK 7 and discharge
4/29/03.
BUT there were things he never, ever told us--such as one can reaffirm a debt (we had two accounts with very small balances)
but
gave us the impression we had to list them all. During the BK
13, one
lender consistently violated the stay at least 8 times by mail
and
phone, yet when he wrote them a letter, he never explained that anything like this was a violation of the stay and to watch out
for
any more such actions. Here's where I really need your opinion: We converted to BK 7
in 1/03
and lender #1 asked for and received a relief from stay. So
far, OK.
When one is abandoning the property, this is to be expected.
However,
mortgage lender #2 never asked for nor received release from
stay, and
every month sent the usual bill, giving the amount needed to
"catch
up". They have a disclaimer on the bill "this statement is
being sent
as a courtesy to the borrower. It is not intended, nor should
it be
construed to be an attempt to violate the automatic stay, nor
are we
attempting to seek personal liability against a debtor who has obtained a chapter 7 discharge." Sure looks like a bill to me and is not different from any of
the
previous bills they sent all during the BK 13. I don't care
what they
say, they didn't get a relief from stay and whatever they put
on their
bills is flying in the face of the court. Frustrated, I called
them
and they were shocked to find out we had abandoned the
property. I
even have the paperwork a/l/a PACER which shows their attorneys
were
duly notified. They promised no more bills. Two weeks later,
another
bill came. (during the BK 13, I called lender #1 asking would
they be
sending any bills. They said no, they were not allowed to do
so under
the BK injunction. So much for the bills which are not bills
sent by
lender #2). Now, they send us a summons to begin initiating foreclosure.
My
contention is; 1. They have been violating the automatic stay consistently-if
the
auto stay re: billing doesn't apply during the BK 13 it surely
applied
during the BK 7. 2. Since they never received relief from stay and they
violated the
Court Order of no billing attempts, their claim for their part
in the
foreclosure is invalid. In both cases, we are eligible to sue and receive monies for
the above
violations. I know you are just giving your opinion, but I was impressed by
your
answer to the other poster. Please let me know what you think
about
this situation. If we need a lawyer, I can probably go to one provided by Legal Services in our county as I am disabled with
very
low income and the total assets we have in the world is less
then
$5000 in the bank and 2 cars about ready to die. thanks in advance.
"TRO" == Temporary Restraining Order. Your creditors are
(temporarily)
restrained by the court from doing any collecting while the
bk is
being handled by the court. When the bk is discharged, the
creditors
named in the bk are PERMANENTLY enjoined from attempting to
collect
beyond the amount awarded to them by the court. Attempting to
collect
after the bk is final is a violation of the court order ==
contempt of
court (if you've got a savvy lawyer and there's enough at
stake).
When BofA agreed to the bk, they accepted that all funds due
to them
under the mortgage that were not collected prior to the
petition date
would be satisfied before discharge -- they agreed that they
would
have no claim for pre-petition debts beyond what the court
awarded
them. If they wanted something other than what the court
awarded them
when your petition was accepted, they needed to ask for their preferred amount AT THAT TIME. If they charged late fees
during the bk
because the loan was not current at the time of filing (i.e.,
they
considered that you were x months behind for the entire
duration of
the bk, because x was the amount that you were behind when
you filed),
that is a big no-no. Asking for money after your discharge
date, where
the debt was incurred prior to your discharge date is a
violation of
the discharge order. Lots of lawyers who do bk are not as savvy as Brett, and
don't
understand all of the nuances of bk law, much less the
intersection of
bk and Fair Lending Practices and FRB regluations and banking
"law"
-- we learned that the hard way. If your lawyer
can't/won't/prefers
not to understand the problem, ask for a referral to someone
who does.
And be prepared to pay for a few $$hours of their time so
they can
review the facts and determine if you've got a case.