I have been asked more and more what the effect of bankruptcy is on a foreclosure.  As a California attorney i want to limit this discussion to California residents, although the laws in other states are likely similar.  A bankruptcy filing stops all foreclosure proceedings.  This is true even if it is filed the day of the Trustee sale.  What we are seeing more of is the benefits of a Chapter 13 filing.  In a chapter 13, a payment plan is arranged with a trustee.  Essentially credit is categorized (secured and unsecured) and a plan is setup to satisfy debt obligations.  The plan is 3-5 years in length.  In the case of 2nd mortgages that are effectively unsecured due to declining property value, they can be treated as unsecured, just like credit card debt.  The significance of this is that at the end of the plan unsecured debt can be completely discharged.  This can be a favorable result and arguably the best "loan modification" available to someone.

It is important to consult with a bankruptcy attorney when dealing with these issues, as they can be complex at it is important they are done correctly.  The laws are also continually changing, but a good attorney can be a great resource.

 
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Post is included in group: Mortgage Law

5 Comments on Bankruptcy and foreclosure

MAY
20
2008

Nathan thanks for sharing I will pass this along. Very informative!

8:26pm • #1
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Question

If you start a short sale then the client enters Bankruptcy here in GA all action of foreclosure stops what happens to the second at the end of the bankruptcy or discharge?

IS only the first lender still standing and they are the only party to the short sale?

8:31pm • #2
MAY
21
2008

I'm afraid i can't give any definitive information for Georgia law, but at least here in California it is likely that the 2nd would still participate in the short sale.  We are seeing 2nds get 5-10% of their money from the 1st.

10:21pm • #3
APR
17

Great information. A lot of attorneys here in Michigan are not pursuing the discharge of the second mortgage in chapter 13. In some cases, non bankruptcy, the second note holder is pursuing a judgment for money and pursuing the borrower. I assume that in a chapter 7 filing, the borrower can re-affirm the first and due to declining values discharge the 2nd as unsecured debt?

Roy Malone
1:03pm • #4

Roy,

I'm not licensed in Michigan so you would need to ask a local attorney about that, but i can tell you that Ch. 7 does not allow 2nds to be deemed unsecured.

Nathan Fransen, Esq.

2:59pm • #5

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Nathan Fransen

Corona, CA

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