Expert: Mark J. Markus- California Bankruptcy Attorney - 11/27/2008

Question
Mr. Markus:

My Chapter 7 bankruptcy was discharged by the Court on 11/7/08.  During the bankruptcy, I opted to remain current on my 1st and 2nd mortgages with Countrywide so they would not foreclose on my property.    

Post bankruptcy, I found out that the appraisal completed on my 2nd mortgage is inaccurate because my condo (studio) was valued against one and two bedroom condo's in my area, not other studios.  The mortgage company used an online service or AVM.  

I brought this to the attention of Countrywide and asked for a modification of my 2nd mortgage on the basis the appraisal was flawed.  Countrywide indicated they are not in a position to modify my loan and if I stop making my payments they will foreclose on the property.  

I'm assuming I cannot pursue Truth in Lending issues or possible RESPA violation since I didn't sign a
re-affirmation agreement.  I also know that my mortgage debt for both mortgages are discharged and can walk away from my condo at any time, but will I be responsible for foreclosure fee's now that my Chapter 7 is discharged?  Should I contest the foreclosure on the basis of my findings or just let it go?

I live in Chicago, IL.

Please let me know and thank you for your time.


Answer
Doing a reaffirmation agreement has nothing to do with a TIL or RESPA claim, but a failure to list the potential RESPA claim in your bankruptcy schedules as an asset might.  As for whether you should pursue such a claim against them, I cannot answer.  That requires an extensive analysis of many non-bankruptcy, as well as possible bankruptcy, factors.  I suggest that you consult with an attorney who deals with such claims in your area.