Legal Question in Real Estate Law in Florida
I live in Florida and I have recently filled for bankruptcy chapter 7 and have been discharged, I included my house in the bankruptcy but decided to keep before it went into foreclosure, I worked out a new mortgage plan with my lender under the HAMP program and I'm signing the papers today with an affordable payment, I also had a second mortgage that was sold during the bankruptcy, before the discharge, to another lender, I'm guessing as a bad loan. The second mortgage company keeps calling me now trying to refinance or settle the second mortgage debt for a lower single payment, my question is this: Do they have any power over the house? can they take it away or foreclose on my house? Should I work with them? The reason for my question is that I cannot afford to pay them anything, after the refinance of the first mortgage my payments for that would be just enough to survive, any input would be greatly appreciated.
Dan.
2 Answers from Attorneys
Was that second loan included in the bankruptcy? If so, they are violating the law. If not, it should have been.
You should contact your bankruptcy attorney immediately. If the lien was not stripped as an impairment to the homestead exemption, then there still may be an in rem liability. In that case the second mortgage company may well be able to foreclose on your home. (The 2nd mortgage co would take your home subject to the first mortgage, but that would not help you.)
There is a difference between liability in personam (personal) and in rem (against the property). A bankruptcy discharge does not discharge in rem liability. In other words, the second mortgage co may not be violating the law, if a lien against the property existed prior to bankruptcy.
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