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I owned a home in North Carolina that was filed in Bankruptcy in 1998.
I retained the home. I placed the home on the market and got a
potential buyer. I informed the agent selling the home there might be
a second mortgage. I was up front with this information and requested
a title search on the home. The agent failed to accomplish this and
proceeded with a sale of the home. Later finding that I was correct
in the fact of second mortgage. The house fell threw, as I could not
settle the second mortgage in the time restraints presented. The
agent had ordered several repairs on the home and other items. A
company the agent hired turned over the bill to collection. These
were things I did not authorize. I have asked the collection agent
for proof. I get emails I sent however key emails I sent are missing.
Though I get no signed contract for that matter the only contract they
sent me was signed by the agent. I have tried going through the
collection agency and they side with the company. The other company
is friends with the agent.
1. What should my next step be?
2. How do I get this off my credit report?
3. Are emails a legal proof?
4. The collection agent is in NC I am in TX. Does this have bearing?
Thanks
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Harry,
You were attempting to sell a house in NC. The "agent" (a realtor?)
ordered some repairs done to the house which you believe you did not
authorize. The sale fell through. A collection agency has a contract
authorizing these repairs which was signed by the realtor and is trying to
collect from you for the repairs.
Did your agreement with the realtor authorize him to make these repairs?
If not write the collection agency and make the point that you did not
authorize the repairs. Point out that the contract that they sent to you
does not contain your signature. Suggest that they contact the realtor for
payment and demand that they clear your credit record. Wait 60 days and
check your credit report. If debt is still listed speak with an attorney.
E-mails may be presented in court but their validity will be decided by
the judge.
Good luck,
Dave M.
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I owned a home in North Carolina that was filed in Bankruptcy in 1998.
I retained the home. I placed the home on the market and got a
potential buyer. I informed the agent selling the home there might be
a second mortgage.
Huh? There "might be" a second mortgage? Surely you _knew_ whether
there was one or not, since you were the one who took it out, right?
You can't rely on the title search not telling you there was another
debt to be paid off, if you already knew that yourself. Paying off
the second mortgage at the time of settlement (closing escrow) is
_your_ problem, not the buyer's.
I was up front with this information and requested
a title search on the home.
I think you're misunderstanding where the duties lay, and to whom, as
far as information disclosure. YOU already knew there was a second
mortgage, so IMO, all else being equal, the title company owed NO duty
to YOU to tell you that.
The agent failed to accomplish this and
proceeded with a sale of the home. Later finding that I was correct
in the fact of second mortgage. The house fell threw, as I could not
settle the second mortgage in the time restraints presented.
Why not? You get the money from the sale price of the home,
delivered to your settlement agent in escrow and subject to payment of
the seller's debts secured by the property; you then, at settlement,
pay off the existing mortgages secured by the property (first, second,
third, whatever), and the settlement agent then gives you a check for
what's left over, after closing costs. If there's not enough equity
in the home for you to do that, are you telling us you didn't know
that before even putting the home up for sale?
The
agent had ordered several repairs on the home and other items. A
company the agent hired turned over the bill to collection. These
were things I did not authorize.
Which, even if true, may or may not be enough to get you off the hook
for them. You benefited from those repairs, which were made to your
property. Also, if you hired the agent, and authorized the agent to
do what was necessary to sell your home, it may be that you _did_
indirectly authorize those repairs. And are you telling us that you
had no idea these repairs were being made? If you did know, and did
nothing to stop them, that's called "ratification" and makes you just
as liable for their cost as if you had pre-authorized them.
I have asked the collection agent
for proof. I get emails I sent however key emails I sent are missing.
That's your fault, not anyone elses. Don't you keep copies of emails
you send?
Though I get no signed contract for that matter the only contract they
sent me was signed by the agent.
If the agent was authorized by you to act for you, that's all they
need.
I have tried going through the collection agency
I don't know what you mean by "going thru" them. They are trying to
collect money from you, right?
and they side with the company.
Of COURSE they will. That's their client. They're trying to collect
money for that client, FROM YOU.
The other company is friends with the agent.
Legally, that is a "so what"?
1. What should my next step be?
Get a better understanding of what actually happened.
2. How do I get this off my credit report?
Pay the bills.
3. Are emails a legal proof?
They can be. Proof of what, is the question. You don't say how you
allege they will help or hurt your case and I'm not commenting on
that.
4. The collection agent is in NC I am in TX. Does this have bearing?
On what? On whether they can sue you? No. But they might have to
bring the suit in TX unless you had some relevant ties to NC which
would make it fair for them to bring suit there.
Oh, yeah, the home was in NC. So of course they can sue you in NC.
OR in TX, their choice.
If you have no idea what's going on, you REALLY ought to consult a
local lawyer who can give you real, particularized advice based on
full knowledge of your facts, instead of general Usenet comments based
on your unclear summary of what happened. Your lawyer can ask you the
questions he will need to know, in order to be able to give you real
advice. Unless you have already done that, and just don't like the
answers you got, Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult a lawyer in a private
communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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On 30/5/04 18:54, in article qo7kb0t3kfoa14ou9jdi6iste43cfjdk64@4ax.com,
"Michael Jacobs" <mjacobslaw@comcast.net> wrote:
I owned a home in North Carolina that was filed in Bankruptcy in 1998.
I retained the home. I placed the home on the market and got a
potential buyer. I informed the agent selling the home there might be
a second mortgage.
Huh? There "might be" a second mortgage? Surely you _knew_ whether
there was one or not, since you were the one who took it out, right?
The query only makes sense if the second mortgage pre-dated the bankruptcy.
If the second mortgage was "under water" (unsecured) on the date of filing
bankruptcy, it might have been stripped off. Attempting to collect it might
have been a violation of the discharge, punishable by contempt in the
bankruptcy court that originally granted the discharge.
The inquirer ought to contact the lawyer (if any) who handled his
bankruptcy. It may be that no action was taken in the bankruptcy to strip
off the mortgage, which would raise the issue of (1) malpractice or (2)
failure of the debtor to inform his lawyer of the facts. Or perhaps the
inquirer filed bankruptcy pro se, in which case he might have had a fool for
a client.
The "might be" suggests that the second mortgagee did not seek to collect
from the debtor because of the discharge, that the lien was not under water,
and that the second mortgage survived the discharge. Moreover, it seems no
payments were made on the second mortgage, which would have grown with
unpaid interest. This is not an uncommon problem, especially where there is
lack of communication and mutual understanding between bankruptcy lawyer and
client.
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On 30/5/04 18:54, in article qo7kb0t3kfoa14ou9jdi6iste43cfjdk64@4ax.com,
"Michael Jacobs" <mjacobslaw@comcast.net> wrote:
I owned a home in North Carolina that was filed in Bankruptcy in 1998.
I retained the home. I placed the home on the market and got a
potential buyer. I informed the agent selling the home there might be
a second mortgage.
The query only makes sense if the second mortgage pre-dated the bankruptcy.
If the second mortgage was "under water" (unsecured) on the date of filing
bankruptcy, it might have been stripped off. Attempting to collect it might
have been a violation of the discharge, punishable by contempt in the
bankruptcy court that originally granted the discharge.
Yes, I agree, this is yet another possibility, among many, as we don't
know all of OP's relevant facts.
The inquirer ought to contact the lawyer (if any) who handled his
bankruptcy. It may be that no action was taken in the bankruptcy to strip
off the mortgage, which would raise the issue of (1) malpractice or (2)
failure of the debtor to inform his lawyer of the facts. Or perhaps the
inquirer filed bankruptcy pro se, in which case he might have had a fool for
a client.
Right again and I certainly agree that OP needs to follow up and get
real legal advice based on his actual facts.
The "might be" suggests that the second mortgagee did not seek to collect
from the debtor because of the discharge, that the lien was not under water,
and that the second mortgage survived the discharge. Moreover, it seems no
payments were made on the second mortgage, which would have grown with
unpaid interest. This is not an uncommon problem, especially where there is
lack of communication and mutual understanding between bankruptcy lawyer and
client.
Agreed, and regardless of how he got there, it's all the more reason
for OP to get off the Net and make some phone calls to make an
appointment with a local TX lawyer, and/or get in touch with the atty
who handled his bankruptcy, if any (in TX, or NC, we don't know) and
fill in the gaps of what each of them don't know yet so he can figure
out what to do next.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult a lawyer in a private
communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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