The issue stems from 506(b) which allows for the charging of fees and costs. However, the charging of these fees and costs is limited to whether the mortgage/note allows for said charges and 2) whether the charges are reasonable. There are plenty of cases out there that say the filing of the proof of claim is not an act to collect the debt. However, you basically have 2 options. One is to file an objection based on 506(b) grounds. While the proof of claim may be disallowed, it does not delete the entries from the account. Thus, even after the 7 is discharged, the mortgage company will likely attempt to collect the fees. I think you have a great argument that the mortgage does not provide for the charging of the fees and that they are not reasonable. Thus, I think the objection would be sustained. After the chapter 7 bankruptcy is over, and the mortgage company seeks to collect those fees, you can sue them in state court or in the BR court. No private right of action of 506(b) that I have been able to find in the case law. however, you can use 105(a) as a contempt remedy to order that the mortgage company delete the entries. Section 105(a) would be used to further the provisions of the Code
Related posts: