Protection from Unfair Mortgage Fees After Chapter 13

04 Aug Protection from Unfair Mortgage Fees After Chapter 13

You need protection from unfair mortgage fees added to your account secretly during a Chapter 13 case. The surprise fees may not show up until after the case is over, when you sell or refinance, and when you have usually have no attorney representing you (since closing attorneys generally represent the lenders), never mind an attorney who knows that fees may NOT be added to a mortgage debt from when the bankruptcy case was open without court approval.

It has been reported that mortgage servicers (you know, those people you pay the money to) earn about $60 per loan per year. This led to the systematic and universal creation of a menu of new fees such as monthly property inspections, monthly property preservation fees, broker price opinion fees, proof of claim preparation fees, review of Chapter 13 plan fees, and other similar and related charges, sometimes covered by “escrow advance” or “corporate advance” labels. They are supposedly covered by the mortgage document’s permission of “reasonable” fees.

Sometimes, fees are added even from the pre-bankruptcy period. Ameriquest Mortgage Company unsuccessfully argued a defense that its computers were not able to make the separation, and got hit with $250,000 emotional distress damages, $500,000 punitive damages, and $50,000 attorney fees when last reviewed.Nosek v. Ameriquest Mortg. Co. (In re Nosek), 363 B.R. 643 (Bankr.D.MA 2007).

This author believes that these unfair charges are violations of existing bankruptcy law. However, to be absolute certain of protection, your Chapter 13 plan should include language instructing the servicers on how to apply the Chapter 13 payments. This will incorporate the purpose of the new law’s addition of 11 USC 524 (i), which defines a willful failure to follow such instructions as being a violation of bankruptcy law.

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L. Jed Berliner practices exclusively in consumer bankruptcy, foreclosure defense, and related consumer protection litigation such as credit card defenses and suing debt collectors. He established his Springfield, MA practice in 1988. Attorney Berliner is a regular and active contributor to the Bankruptcy Law Network, the Bankruptcy Roundtable, and the National Association of Consumer Bankruptcy Attorneys, three specialized consumer bankruptcy forums on the Internet, and is an informal mentor to regional practitioners. He is recognized by his peers as an expert in consumer bankruptcy issues. He thoroughly enjoys being rated "excellent" in his client surveys.

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