QUESTION
Who is supposed to file the reaffirmation with the courts?
Asked on Jan 07th, 2013 on Bankruptcy - Florida
More details to this question:
I did sign a reaffirmation on my home and so did the bank. I didn't find out until two years later that the bank was not reporting my payments to the credit bureaus and that it showed I filed bankruptcy on the house. I asked the bank why they were not showing my payments. They said I didn’t file a reaffirmation agreement. I have a copy of it with my signature, the banks and lawyers. I have since found out that my attorney did NOT file it with the courts! He told me it was the banks job to file it with the courts not his. I need my payments to show on my reports so I can refinance to move out of the area and do updates on my home so I can sell it. I am so confused on who was supposed to do what and what to do now. I have worked hard over the last five years to rebuild my credit and have been fighting with everyone for three years now to fix this and no one will help me. This has hurt me more than the bankruptcy. What options do I have? Did my attorney mess up or is it the bank? I need some answers and advise.
9 ANSWERS
Bankruptcy Law Attorney serving Austin, TX
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Law Office of Susan G. Taylor
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I am terribly sorry you're having so much trouble rebuilding your credit. I'm afraid you may never know what went wrong. Normally, the bank does not sign the agreement & requires your attorney to return a copy with the signatures of you & your attorney to it. Perhaps your attorney failed to get the agreement back to the bank. OR the bank failed to file it with the court before your discharge date. Occasionally the bank will sign & request that your attorney file the reaffirmation agreement with the court as soon as you sign. There are so many different steps, & an attorney can have many of these up in the air at one time. It's easy for something to fall through the cracks. But, if you stay on top of it & it's the mortgagee's fault that the agreement isn't filed, even after several requests that they do soyour attorney can file a motion with the court to prevent the bank from taking adverse action (such as failing to report your payments to a credit bureau) due to lack of a reaffirmation agreement. Obviously that was not done in this case.
Answered on Jan 24th, 2013 at 1:42 PM
In order to determine who is responsible for filing your reaffirmation agreement with the bankruptcy court, I would want to look at your retainer agreement. Unless your bankruptcy lawyer included representing you for a reaffirmation in his/her fee agreement, s/he isn't responsibile for anything to do with this agreement other than to forward a copy of the mortgage company's proposal to you. Having said that, not filing the reaffirmation is not a guarantee that the mortgage company will report your ongoing payments to the credit bureau and isn't a guarantee that you will be able to refinance if it was on your credit. A lender that is willing to look at other evidence besides your credit report will be a better choice to get you qualified to refinance.
Answered on Jan 11th, 2013 at 1:11 PM
This scenario is becoming more common, given that some banks essentially misreport the mortgage payment history of non- reaffirmed debts. To correct this problem, you should adopt the following two-step process: Step One, make a qualified written request to your mortgage lender/servicer, pursuant to 2605(e) of the Real Estate Settlement Procedures Act (RESPA), that they provide to you an accounting of all mortgage payments that you have made. This accounting should establish that you have been making timely mortgage payments post-petition. Step Two, file a dispute with the Credit Reporting Agency (Experian, Equifax, TransUnion, etc.) complaining that the reported mortgage payment information is inaccurate, attaching thereto the accounting received pursuant to the qualified written request. Assuming that you are in fact current on your mortgage payments, this should result in the Credit Report entries being corrected, pursuant to the procedures established in The Fair Credit Reporting Act (15 USC 1681i). I would also suggest that you keep a front and back photocopy of each future mortgage payment that you send to this lender/servicer, so that if this problem arises again you complain to the Credit Reporting Agency and have your own records to submit, which should streamline the process somewhat. I take no position as to who failed to do what. The question of who files a Reaffirmation Agreement is usually determined by the parties to the transaction, except I will say that based on my 30+ years of experience, if a screw up occurs and a bank is involved anywhere in the process, the bank is invariably the culpable party.
Answered on Jan 11th, 2013 at 1:10 PM
Insurance Attorney serving Redlands, CA
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Orrock, Popka, Tucker & Dolen
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A reaffirmation agreement can be filed by either party, but is usually filed by the creditor. If it was signed and returned to the creditor, they should have filed it.
Answered on Jan 11th, 2013 at 1:09 PM
Chapter 13 Bankruptcy Attorney serving Winston-Salem, NC
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Love and Dillenbeck Law
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This one is tricky. Case law says that the responsibility to file the reaffirmation is on the bank but they are not required to enter into the reaffirmation agreement so not sure there is much you can do with them. As for the reaffirmation itself, unless your bank gave you a great deal by modifying the mortgage, it would have most likely been denied. No bankruptcy judge in NC will approve a reaffirmation of a mortgage unless the mortgage company gives a benefit to the debtor. So what do you do? Request a payment history from your mortgage company once a year. When you do that make copies and file a complaint with each of the three credit bureaus, indicating that you are still making the payments and attach a copy of the payment history. After an investigation, they will be forced to report the payments as you requested.
Answered on Jan 11th, 2013 at 1:08 PM
Bankruptcy Attorney serving Plantation, FL
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Moffa & Breuer, PLLC
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I have never seen a debtor's attorney file a Reaffirmation Agreement. It is always filed by the creditor. The good news is that you can still rebuild your credit through other new creditors, just not this bank. You do not owe the bank any money, so you could walk away from the house at any time and would not be responsible for any shortfall, but the bank still could foreclose if you stop paying.
Answered on Jan 11th, 2013 at 1:07 PM
Deborah F. Bowinski
It is just not true that you will be unable to obtain new financing because you did not file a reaffirmation agreement. In fact, most attorneys that I know would not have even signed one for you, ley alone filed it for the lender. When you apply for a new loan you can request an up to date payment history from your present lender that will show all the payments you have made since your bankruptcy case was filed. Most loan officers and mortgage brokers know that post filing payments are often not reported to credit bureaus and can help in spite of that fact. If your current lender will not finance you then find another one.
Answered on Jan 11th, 2013 at 1:03 PM
Chapter 7 and Chapter 13 Bankruptcies Attorney serving Dublin, OH
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Granger Law Firm LLC
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The bank is supposed to draft the reaffirmation agreement, send it to your attorney for signature and then file it with the Court. I have seen this many times, especially with bigger banks. Most times they claim they did not receive the signed reaffirmation back, even when the attorney has proof that it was sent. Write to the credit reporting companies explaining the situation and maybe enclosing proof of payment history.
Answered on Jan 11th, 2013 at 1:02 PM
Criminal Defense Attorney serving Deltona, FL
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R. Jason de Groot, P.A.
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The bank should have filed it with the court and had it approved prior to discharge.
Answered on Jan 11th, 2013 at 1:01 PM