Legal News for Credit Union Managers Since 1990
« Collateral Insurance Proceeds to Credit Union
Chapter 13 “Camper” Payments Denied »
19
Aug
2020

Mortgaged Property Kept Without Reaffirmation or Redemption

Here, the Court considered whether a debtor may keep property secured by a mortgage to the credit union even if the debtor does not either reaffirm, surrender or redeem the obligation.
 
In this case, GNC Credit Union held a mortgage issued by the debtors and secured by their home. The balance on the loan was over $24,000.00 and the home was alleged to be valued at about $25,000.00.
 
Upon the debtors filing of bankruptcy, they indicated an “intention” to enter into a formal reaffirmation agreement on the mortgage with the credit union. Thereafter, however, the debtors refused to reaffirm on the mortgage. Debtors also refused to either redeem the property or surrender it to the credit union.
 
The debtors did continue to submit payments to the credit union, however, the credit union refused to accept the payments since there had not been a formal reaffirmation agreement signed by the debtors.

The credit union filed a motion to lift the automatic stay of the Bankruptcy Court so it could foreclose on the property. The credit union also argued that the mortgage was in default under the terms of the mortgage itself; a clause in the mortgage stated that the mortgage would be in default upon the debtors filing for bankruptcy.

The Court first addressed the issue as to whether the debtors could stay in possession of the property absent a reaffirmation agreement or redemption.

This Court found a split of authority across the country as to whether the debtors should be compelled to surrender the property to the credit union when debtors refused to reaffirm the debt or redeem the property. The Court found, however, that the intent of the Bankruptcy Code is not to place greater financial stress on the debtor after the filing of bankruptcy than they were exposed to prior to the filing.

Here, the Court held that debtors should be entitled to retain possession of the mortgaged home even if there was no reaffirmation or redemption agreement. Debtors are, nonetheless, obligated to maintain regular monthly payments to the credit union or, the credit union could file for foreclosure in a regular State Court.

This Court also held that the “due on bankruptcy” clause contained in the mortgage was void. The credit union was, therefore, prohibited from foreclosing as long as the debtors brought their mortgage account current at the credit union and continued their regular monthly payments, as well as timely paying property taxes and homeowners insurance.  GNC Community Credit Union vs. Michael Stefano, (U.S. Bkrcy Court, W.D. Pennsylvania, Case No. 91-1805).

Author: Charles R. Harroun, Attorney at Law



This entry was posted on Wednesday, August 19th, 2020 at 4:34 am and is filed under Bankruptcy, Mortgages, National, Secured Loans. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Leave a Reply

Your comment

Powered by WP Hashcash

  • Recently Posted Articles written by: Charels R. Harroun, Attorney at Law

    • Collection Letter Not Required Before Filing Suit
    • Fraudulent Check Endorsement by Borrower
    • Creditor Required to Release Lien
    • Chapter 13 Plan Cures Arrearage
    • Defective Automobile Lien Enforced
    • Protecting Home Equity Mortgage Portfolios
    • Wrongful Discharge: Credit Union Employee
    • Contaminated Mortgage Property
    • Nondischargeable Credit Card Debt
    • Co-Borrower Bankruptcy Stay Lifted
    • Debtor’s Failed Promise to Pledge Collateral – No Fraud

  • Website Builder

2009-2020 Copyright Harroun, P.C. | Credit Union Legal Newsletter powered by WordPress and Uchilla
Subscribe: Entries (RSS) and Comments (RSS)