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In re: Fred Amoakohene

03 B 07231

A chapter 7 debtor moved to compel mortgagee to enter into a reaffirmation agreement that alleged, among other things, that his mortgage payments were current. Mortgagee filed a cross motion for modification of the automatic stay, which alleged a default on the mortgage, that the debtor had no equity in the real property and that the property was not necessary for an effective reorganization. The cross motions raised the legal issues of whether a chapter 7 debtor may retain his home against the objection of the mortgagee by simply remaining current on payments, or conversely, whether a mortgagee should be entitled to foreclose in pursuit of its in rem claim against real property only because the debtor-mortgagor obtained a chapter 7 discharge of personal liability. The court held that: (1) the debtor was required under 11 U.S.C. § 521 to elect between reaffirmation, redemption and surrender and then perform the intention within 45 days thereafter; (2) that the court could not force the Mortgagee to enter into a reaffirmation agreement; and (3) that relief from the automatic stay was appropriate and would not be much of an additional burden on the debtor.

Wednesday, July 23, 2003