Mortgage Assignment after Ch 7 BK filing and before BK discharge

[gotta_love_this]

We live in FL and filed chapter 7 BK in Sept 2011. Our attorney advised to file an intention to reaffirm the mortgage. We were delinquent on the mortgage prior to filing (last pmt July 2011). The BK was discharged at the end of December; no reaffirmation agreement with the servicer was made.

Today I just discovered that in October 2011 (just about on the same day as the 341 meeting) MERS assigned the mortgage to the servicer! I am certain they did it in response to the BK filing because of the increased potential for foreclosure (and that we were delinquent) and because of the clouds surrounding MERS' ability to foreclose. Neither we, our BK atty, or the BK court were notified of the Assignment!

Does anyone know if this is legal? We thought any issues regarding noted creditors (i.e. our servicer) in the BK filing were precluded from undertaking any actions once we filed through discharge. We have a call in to our BK atty but thought someone here might know.

We appreciate your help.

[despritfreya]

We live in FL. . . Our attorney advised to file an intention to reaffirm the mortgage.

Why? My understanding is that Fl does not have an anti deficiency statute. If you were keeping the home you would "stay and pay" and never sign an official reaffirmation agreement.

The BK was discharged at the end of December; no reaffirmation agreement (was ever signed).

Good for you. . . the right thing to do.

Today I just discovered that in October 2011 (just about on the same day as the 341 meeting) MERS assigned the mortgage to the servicer! I am certain they did it in response to the BK filing. . . potential foreclosure. . . and because of the clouds surrounding MERS. . .

Not correct. The servicer (not "lender) was changed because that is what MERS and lenders do. It is highly unlikely that a conscience decision to transfer the servicer was made due to your situation.

Neither we, our BK atty, or the BK court were notified of the Assignment!

While you probably should have been notified, in the context of a Chapter 7, there is no reason for the notification to be sent to your attny or the court. I’m not sure of any legal requirement to advise you of the new servicer but one should be advised as to where to send voluntary payments - assuming you were going to try to bring the account current. If not, then why would you care who is servicing the loan?

We thought any issues regarding noted creditors (i.e. our servicer) in the BK filing were precluded from undertaking any actions once we filed through discharge.

Transferring the account from one servicer to another or one lender to another is not a violation of anything. Trying to enforce the monetary obligation would be a violation, first of the automatic stay and, once the discharge is entered, the discharge injunction.

Des.

[gotta_love_this]

Des,

Thank you for your reply. You bring up some good points. We did hear from our atty who said unless the action was an attempt to collect, foreclose, etc. the Assignment was "not illegal".*

The details of the situation are obviously complex so let me clarify a couple of points. If we had the ability to pay the mortgage, we would pay the mortgage. Our financial situation is dire or else we would not have been able to do a chapter 7.*

The Assigment was not a change in servicer. It was a transfer of ownership. Our mortgage company, a direct lender, immediately transferred servicing to a big bank after closing. Fast forward to BK. During BK the "owner", mers transferred ownership to the big bank already servicing the loan. The signing of the assignment took place in California, the address of the "assignor" is a broker in the county where the house is, and the assignee is the big bank who had been servicing our loan.*

There are no recorded documents showing the address of the assigner being in our county. Mers' address on our mortgage is in ca. Mers is able to take any address it wants? *I understand our mortgage can be sold, transferred, whatever at any time. But should there not be consistency in address, name, etc of the entities involved in these supposedly "not illegal" transactions? *Should we not be notified? *

Furthermore, there is evidence of robosigning in the Assigment document recently recorded. It may be not illegal, but*IMO*there are ts and is that were not crossed and dotted.*

I'm not saying that should mean we are not bound by remedies in our contract that we are not able to bring our mortgage current. But should not the owners of our mortgage be in breach as well for being deceitful and/or fraudulent? *

We are definitely the beneficiaries of the BK in that we have a fresh financial start, the reason why there are BK laws. It is just frustrating that this assignment occurred without our knowledge, stressful trying to figure out why they did what they did when they did it, and angry that this doc shows telltale signs of fraud and robosigning.*

This whole darn thing is taking a huge toll. From what caused our financial distress to the BK to anticipating foreclosure. We had no other options and those options continue to be extremely limited.*

DES, we thank you for your interest and comments.*

[acesfull]

Hi Gotta

You may need to research MERS and Florida Foreclosure cases.

I can't recall the cases however I remember Florida courts dismissing some cases without prejudice due in part to Mers assignment of the note or mortgage/deed. The opinion of the courts was " ONe cannot assign what one does not own"

In NJ my state-- Bank of NY v Raftigians

The civil court ruled in favor of the homeowner again due in part to MERS not having STANDING to assign a mortgage note.
Again ONE CANNOT ASSIGN WHAT ONE DOES NOT OWN.

I hope the BK court challenges this MERS assignment for you..

Best regards

Nj-16 Months
Acesfull/HWP