Mortgages And Foreclosure
In order to understand how mortgages are handled in bankruptcy, we need to know how mortgages and foreclosures work. A mortgage loan is the loan you take out to purchase your home. It’s a secured debt, meaning it’s linked to a specific piece of property as “security.” A mortgage loan gives the bank a “lien,” or a legal right to the security. If you can’t make your payments, the bank can take possession of the security as payment for the debt. That’s what’s happening when the bank forecloses on your home.
When the bank forecloses on a home, it then sells that home at auction. Sometimes the home sells for more than you owe. If that’s the case, you’re entitled to the extra. Sometimes, the home sells for less than you owe. The difference between the sale price and the amount of the debt is called the “deficiency.”
Depending on the type of foreclosure proceeding, you may be required to pay the deficiency. California offers two different types of foreclosure proceedings: nonjudicial and judicial. A nonjudicial foreclosure doesn’t require the lender to go to court in order to foreclose. If a home is sold through a nonjudicial foreclosure, the lender does not have the right to collect a deficiency. In other words, you’re off the hook for any difference between the amount you owe and the sale price. A judicial foreclosure is processed through the court system. In general, judicial foreclosures do allow for deficiencies. That means the lender can sue you for the difference between the amount of the debt and the sale price of the home. The vast majority of foreclosures in California are nonjudicial.
In some cases, you may have a second or third mortgage loan taken out against your home. These lenders have junior liens on the home, meaning that they have a claim after the lender that holds your original mortgage is repaid. They get repaid after the lender that holds your original mortgage does. So, if your lender forecloses and the home sells for more than you owe on your primary mortgage, the lender that holds your second mortgage will get the difference. If there’s money left after the second lender is repaid, that will go to the third lender, and so on until all of the debts are paid.
When your home is sold through the foreclosure process, the second (and subsequent) lenders lose their lien on the home. That means they lose their claim to ownership of the property. However, they do still hold a debt and can sue you directly for repayment.
Mortgages In Bankruptcy
If you’re struggling to keep up with your mortgage payments, bankruptcy can help stave off foreclosure. The way mortgages are treated in bankruptcy depends on which type of bankruptcy you choose to file.
Mortgages In Chapter 7 Bankruptcy
In Chapter 7 bankruptcy, you’ll divide up your assets into exempt and nonexempt piles. You’ll surrender the nonexempt property to the court, which will sell it and use it to pay your unsecured creditors. California offers two different sets of exemptions to protect your property, so most filers are completely protected and don’t have to surrender any property at all. After this process, your remaining unsecured debts will be discharged.
Your mortgage, however, is a secured debt. You’ll have to choose whether you want to keep your home or not. If you don’t want to keep your home or won’t be able to make mortgage payments, you can surrender it. If you surrender your home in bankruptcy, the bank will take possession of it and sell it just like at a foreclosure. However, bankruptcy wipes out your personal liability for the debt. That means you won’t have to pay a deficiency if the home sells for less than you owe.
If you have a second or other junior mortgage, your bankruptcy discharge will wipe out your personal liability for that, too. That means they won’t be able to sue you personally for collection. However, the lender will still have a lien on your home and will be able to foreclose on it. In order to do that, they’ll have to pay off the first mortgage and any other fees. So, foreclosure won’t be an attractive option for junior lenders unless and until the home is worth more than your loan.
Mortgages In Chapter 13 Bankruptcy
In Chapter 13 bankruptcy, you’ll give the court a full report of your income and expenses. You’ll work with the court and your bankruptcy attorney to come up with a payment plan based on your earnings and the value of your nonexempt assets. You’ll make payments for 3-5 years, after which your remaining unsecured debt will be discharged. Your payments will go to your secured debts, such as your mortgage and auto loans, first. Whatever is left each month will go to your unsecured creditors.
In order to keep your home in Chapter 13, you’ll need to show the court that you can afford to make your regular payments and also payments for any arrears. If you can make those payments, the bank is required to let you keep the home. As in Chapter 7, the discharge at the end of your bankruptcy process will wipe out your personal liability for the loan. The bank will still be able to foreclose, but it won’t be able to sue you for any deficiency.
If you have a second or other junior mortgage, you may be eligible for “lien stripping.” If your home is “underwater,” meaning it’s worth less than you owe, any junior liens can be stripped away. That means the holder of your second mortgage loses its claim on your home and your second mortgage debt becomes regular unsecured debt. That unsecured debt will be discharged after bankruptcy. If your home is not underwater, you’ll need to continue to make payments on your second mortgage in order to avoid foreclosure.
How much mortgage debt can I wipe out?
As you can see, primary mortgage debt isn’t really wiped out in bankruptcy. Your lender still has a lien on your home and can still foreclose, but it can’t sue you for any deficiencies anymore. The only mortgage debt that can really be wiped out is a junior lien on an underwater home in Chapter 13. If you qualify for Chapter 7 bankruptcy, it can wipe out an unlimited amount of deficiencies. Chapter 13 is somewhat more limited; you must have less than $1,149,525 in secured debts and less than $383,175 in unsecured debts in order to qualify for Chapter 13 bankruptcy. If you meet that criterion, Chapter 13 can also wipe out an unlimited amount of deficiency and junior liens.
What should I do about my mortgage?
As you can see, the treatment of mortgages in bankruptcy can get a little complicated. If you’re struggling with debt and you have a mortgage, contact us today for a free consultation and case evaluation with one of our experienced California bankruptcy attorneys. We can explain your options and what to expect for your mortgage. We can also help you decide on the best course of action for your unique goals and needs.
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