Archive for May 29th, 2012

Stripping a Second Mortgage in Chapter 7 – New, Cutting-Edge Bankruptcy Law

Most of my blogs discuss foreclosure issues, but make no mistake – bankruptcy is a huge part of helping homeowners facing foreclosure.  Though I didn’t start out as a bankruptcy lawyer, I’ve learned through my experience defending mortgage foreclosure cases in state court that bankruptcy is an important tool for a foreclosure defense lawyer to have in his/her arsenal.  To ilustrate, I just encountered a recent decision that can and will help Florida homeowners file bankruptcy and still keep their home. 

First, let’s be clear.  Bankruptcy is a common way for homeowners to walk away from their debts and move on with their lives.  Many homeowners file bankruptcy and walk away, and there’s nothing wrong with that.  However, it doesn’t have to be that way.  It’s entirely possible to file bankrtupcy and still keep your home.  Let’s repeat that:

It is possible to file Chapter 7 bankruptcy and still keep your home. 

To illustrate, take a look at the May 11, 2012, decision of the Eleventh Circuit Court of Appeals (the appellate court for all of Florida’s bankruptcy courts), which ruled that a homeowner can strip a second mortgage in a Chapter 7 bankruptcy.  You may not understand what that means, so let’s give an example.

Suppose your house is worth $200,000 but you owe $250,000 on a first mortgage and $100,000 on a second mortgage.  In other words, the amount you owe on your first mortgage is greater than the current value of your home.  Under now-existing law (at least in Florida, anyway), you can file a Chapter 7 bankruptcy, keep your home in that bankruptcy (not surrender it, but keep it), and eliminate that second mortgage.  Poof, the second mortgage is gone – just like all of your other debts once you get a discharge.  Of course, the first mortgage still remains, and you’re still responsible for paying that, i.e. the $250,000.  But the second mortgage, i.e. the $100,000, is eliminated.

There are, of course, some clear limitations on how this strategy can be used.

First, you have to qualify for Chapter 7.  If you’re making six figures per year or own a bunch of assets, this isn’t for you.

Second, though you don’t have to be current on payments on your first mortgage – you can be two months behind or even two years behind – you have to get current shortly after you file the bankruptcy.  If you just stopped paying your first mortgage a few months ago, this may not be too difficult – just cure your arrearages.  If you stopped paying many months or even years ago, that may be easier said than done.  After all, anyone who qualifies for Chapter 7 necessarily does not have a lot of money lying around, much less the tens of thousands of dollars it would take to cure all arrearages on a first mortgage that you haven’t paid in two years.  That said, there’s nothing stopping you from convincing a friend or family member to cure these arrearages for you so as to get current on the first mortgage, file Chapter 7, eliminate the second mortgage, and keep your home.  (To clarify, you don’t technically “have” to pay the arrearages, but if you don’t pay all the arrearages on your first mortgage, you’re at the mercy of the first mortgage company, as if it refuses to modify your loan then you can’t keep your home.  That’s why I emphasize paying the arrearages, as it’s the only way to ensure you can strip the second mortgage and keep your home.)

Third, the current value of the home must be less than the amount owed on your first mortgage.  To illustrate, suppose you owe $250,000 on a first mortgage and $100,000 on a second (the same as in my example, above), but instead of your house being worth $200,000, it’s worth $260,000.  In that scenario, the law does not allow you to “strip” the second mortgage, because a portion of that second mortage is secured by the property.  For this strategy to work, the amount owed on the first mortgage must exceed the current value of the home.  So long as that’s the case, whether it exceeds the value by $1.00, $300,000, or anything in between, the entire second mortgage gets eliminated through the Chapter 7.  Notably, the amount of the second mortgage is irrelevant – so long as the value of the home is less than the amount owed on the first mortgage, the entire second mortgage is eliminated.

As a practical matter, what does all of this mean?  In my view, it means that certain Florida homeowners should assess their situation carefully.  To try to simplify this, I suggest that once you answer “no” to any of the following questions, then this strategy does not apply for you, but if you answer “yes” to all of them, you should seriously look into this.  Here are the questions:

Are you adamant about keeping your home?

Do you have a second mortgage?

Are you eligible for Chapter 7 bankruptcy (largely a function of your yearly income and assets you own)?

Is the amount you owe on your first mortgage greater than the current value of the house?

Could you afford to make monthly mortgage payments on your first mortgage, as it presently exists, indefinitely into the future?

Can you cure existing the existing arrearages on your first mortgage, or find someone who can help you do so (failing which you’ll have to somehow convince the bank to enter a modification)?

If you answered “yes” to all of these questions, then this ruling may be a terrific way for you to keep your home while eliminating your second mortgage and your other debts through a Chapter 7 bankruptcy.

As always, call us for a consult.  888-450-1549.

Mark Stopa

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