BK in Illinois - now in Arizona

I filed for Chapter 7 BK in 2005 in Illinois and it was discharged 90 days later.
I paid for the mortgage for a year or so and then due to wanting to relocate I notified the mortgage company 4 times of my intentions to not keep up the mortgage payments and offered to do this easily and sign whatever they wanted me to so they would save going to court and I would save the additional foreclosure. I since have moved out of state and walked away from the property. I included my home in that filing and I stayed in the home for a year and a half and made the payments - all the time being told I wasn't responsible since the home had been discharged in my chapter 7 - now the original mortgage holder, AFTER I notified them of my intent to abandon the property - sold my mortgage - they refused to work with me on doing a deed in lieu of foreclosure. So now I am dealing with an attorney back there in Illinois that states that once the home is sold I will be responsible for anything not paid off by the auction!!!! They keep saying "well, the chapter 7 is discharged" and I keep telling them yes, I know that and that means it was a write off, or whatever you want to call it, but I got out from under it when the BK went through the courts all the way - so what is the deal here ? They tried to tell me that when the mortgage was sold that the new mortgage company wasn't included in the BK and didn't have to honor that. I told them that the property was included and that the BK followed with the property, but they keep telling me I am wrong! Isn't the mere fact that the BK was discharged mean that the courts accepted it and all my debts? This is ridiculous that one mortgage company KNOWING that I was abandoning the property - sold it and then it got sold AGAIN - this time to a mortgage place close to my new home in Arizona. All the time I had this home in BK after the fact I always got asked by the mortgage company when I had to call and ask a question about the escrow or whatever "do you wish to keep the property at this time?" and I usually answered yes until earlier this year when I said nope and they hemmed and hawed and didn't send me any papers to do the deed. I don't care what happens to the property but I didn't think I was responsible for anything once a debt was included in BK ? If that was the case then all my credit cards and my car loan, etc, would be coming after me now too if that rationale was the same as the attorney for the mortgage company is trying to tell me, which I don't believe. I called the original mortgage company when I decided to walk away and it took them 4 months of telling me they would send me the stuff to fill out to do a deed in lieu of foreclosure before they finally told me I needed to list the property, which I could have done easily in the 4 months before I moved. I didnt think a further hit to my credit for a foreclosure could be reported on a BK included item but the attorneys are telling me that it can be AND that if they sell the home in auction for less than the mortgage they will come after me for the balance. This sounds like a con to get me to pay up but I don't care what they do with it anymore. They went to court and started foreclosure and it is being put up for auction later this month.

Any words of affirmation that I am right in my thinking that they cant come after me anymore would be helpful.

Your timeline is a bit confusing, so please bear with my response. Did you continue to make mortgage payments after the bankruptcy was discharged? If so, there's a very good possibility your original mortgage company wasn't listed on the final schedule of creditors at the time of discharge. I'd suggest you compare your preliminary secured creditors schedule (at the time you filed) against this final schedule that was included with the discharge .. if that lender name appears on both, I think you could argue (weakly) that the property was in fact included. But if you continued to both occupy the property and make payments for that "year or so" after the discharge, in my opinion you reaffirmed that debt and then for whatever reason, defaulted on it.

It's not very likely your original lender transferred or sold a "bad loan" without proper notification. It's very possible that because you chose to make voluntary payments during and after the discharge, the lender reaffirmed the debt on your behalf (in effect, removed it from the bankruptcy.) You can't avoid foreclosure by simply writing letters .. you entered into a legally binding contract; you made a promise to repay at the time you closed on the house and agreed in the mortgage note disclosures you signed to also repay any future lienholders when/if the loan is transferred. Your original contract (mortgage,note, etc.) supercedes any correspondence (verbal or written) unless the other party chooses to renegotiate a new one. Period. Unless your final bankruptcy schedule clearly lists your original lender by name, in my opinion, you're still bound by that contract. As such, either the original lender or its subsequent assignees can legally pursue you, in this case, through foreclosure and sherriff's sale. They also have the legal right to notify the credit bureaus accordingly .. you will have a foreclosure entered after a discharged bankruptcy. (Current banking and credit laws allow this.)

That being said, there IS a chance of a massive banking 'foo-foo' here. I believe it all lies within your bankruptcy documents. If you can provide a copy of final discharge showing that original lender's name to the new lender, in my opinion, you're no longer liable. If your loan's been sold more than once (and it was included) I also agree you're not responsible and the lenders need to look into their own servicing/sale contracts for recourse. Unfortunately, it means you as the consumer must keep careful track of your credit report and if needs be, continously send the credit bureaus a copy of that same discharge and final creditors to have the correct information updated. I'd also suggest you keep copies handy for the future creditors; it'll help expedite your credit approval process. Just a thought.

Do yourself a tremendous favor and request a copy of ALL of your bankruptcy docs from the county where you originally filed. Cook County and other counties still maintain bankruptcy records through their courthouses, sometimes available eletronically for a fee. Make sure you also request a final discharge and final schedule of creditors as well. (There should be 2 separate schedules; prelim and final and hopefully they match.) Best bet in a complicated case such as this is to have either your original bankruptcy attorney (if still available) or have another attorney in your area (licensed in Illinois law) review them. A final suggestion here: if in fact, this is NOT your debt, you have certain rights. (see The Fair Debt Collection Practices Act, in particular § 805-6.) You may want to review this as well, and also discuss this with the attorney.

Good luck.

How is it "weakly" to be argued ? If its in my pleadings anf in my final discharge then how is that a weak argument that it iwas included ? it ieither isnt or it is and it clearly was. But I could care less if they foreclose OR they sell the house - I dont care - let them do it - it isnt going to make me go back and catch up on the house, I dont want it anymore, flat out simple - but I just dont want to be hassled into anything else once its sold and I dont see how I can be if the hosue was included in BK ? Thanks for the reply but no they didnt reaffirm this on their own - each and every time up until the time I walked away from the home they would ask me "this debt has been included in a BK and therefore we are not attempting to collect a debt from you, etc etc, do you wish to keep the property?" (that was not only on the phone calls but also every peice of paper they ever sent me, including my monthly statements) at which time I usually answered yes, but when I answered NO they didnt know what to say back to me. They are the ones that told me in January that they would send me the deed in liew of foreclosure papers and they never did in spite of telling me that 4 times, the only time they finally brought up that they wouldnt do a deed in liee of, is after I had moved out and abandoned the property. And yes, this is showing up as a Chapter 7 BK on all my creidt reports as recent as last week and yes, tehy did sell the mortgage to one place and then THAT place again sold it 4 months later. So since Jaunary I have had 3 mortgage companies. And they never notified me until they had already done it - the new mortgage places are the ones that contacted me and said Hi, its a pleausure to be able to service your mortgage how can we help you ? Or some such garbage like that. I even asekd the new mortgage company why they would be so stupid as to buy a loan that was already in default and included in a BK ? The gal told me that blocks of loans were bought and sold all the time - I dont know about that, but it doenst make any difference to me why they sold it - just that I am being conned (or tried to anyway) into thinking that I am still liable for anything.

So bottom line - # 1 the mortgage was sold twice without my consent or knowledge til after the fact, # 2 the proptery is to be auctioned in 2 weeks # 3 - Wells Fargo (the original mortgage holder) reported this to all teh credit reporting agencies as being included in a BK Chapt 7

And yes my papers all say the same thing - the mortage was included and not reafirmed by me at the time of the Ch 7 filing and it was discharged.

My main problem is that I now live 1800 miles away - but I do still have all my paperwork - both the initial pleading and the final court papers that all say the same thing as well as my credit reports that show that Wells Fargo themselves report this as a BK included debt - I chekced with my attorney back then and asked him what would happen if I made the payments and lvied there and he said nothing, it was included in the BK and they couldnt get me out til I stopped payments - but it was included

You stated you lived there after you filed bankruptcy, made payments on a debt that was discharged and then chose to walk away from that debt. Why would you make payments on a bill already included in the BK if not to honor the original terms? The lender could argue you honored that contract throughout the bankruptcy by the payment history alone, regardless of whether it was discharged or not. (Note "could" .. it IS a possibility in my opinion.) I'd suggest you contact a bankruptcy attorney as originally posted to both verify that the information originally given (i.e. "nothing would happen to you") was correct and that you are, in fact, no longer liable. A perfect illustration of just how much circumstances (and you do have an unusual one) do in fact alter cases.

FYI, the house will be foreclosed on and sold and any arrearages will continue to be listed on your credit report, if the lender is intent on pressing its case. You also should've signed a servicing disclosure in your original application paperwork (when you purchased the home) which advised you the mortgage would be sold after closing. Keep those documents handy; it sounds as if you may be needing them on a regular basis for your credit report.

Again good luck. I hope that attorney gives you the answer you're looking for. I just don't know as I'd be quite so optimistic (an opinion, and not to be construed as legal advice.)

No I stated that I filed for BK in Illinois long before I moved here and I continued to make the payments on my home since my attorney AND the mortgage company told me I could continue to live in the home as long as I did but that I could walk away when I wanted to - which I did and THEN I moved here a year and a half later.

I dont honestly know why I made the payments would make a difference ? The bottom line is that I didnt want to sleep in the streets and the other bottom line is the mortgage was included in my original BK - how int eh world can a company "reaffirm" the loan on their own? That makes no sense at all - if that was the case then all the credit card loans and anythign else I included in the BK in 2005 could also do so. I know the loan was in the BK and filed by the state - I found the original filing.

No big deal now - the home is gone and they cant get a penny from me anyway - so I dont care anymore - its just too hard to get a clear answer from the mortggage companies and attorney (which I STILL dont understand how they can keep selling the durn thing over and over again after the foreclosure is started but oh well, thats their problem now, not mine) I am so sick of the new mortgage places - 4 in total now since January that have taken this mortgage over - contacting me and wanting to "work something out" - uh, are they too dumb or just misinformed that they dont know the durn home was sold in August ????

Unless your final bankruptcy schedule clearly lists your original lender by name, in my opinion, you're still bound by that contract

and yes the final BK schedule clearly shows the original lenders name so I am not bound by any contract at all - they can come after me all they want - what are they going to do ? Foreclose on my apartment ?