QUESTION
How can I avoid being sued for foreclosure after bankruptcy?
Asked on Dec 08th, 2011 on Bankruptcy - New Jersey
More details to this question:
We gave up the house as we could not afford it after bankruptcy. There are too many bills, too much mortgage and too many repairs. We just couldn’t afford it. What shall I do now as we are being sued for foreclosure?
14 ANSWERS
Unless you signed and filed a Reaffirmation Agreement during your prior bankruptcy, a bank cannot sue you personally for the mortgage, as your liability is discharged without reaffirmation. If you want to keep your home and stop or prevent foreclosure, consider filing for Chapter 13 bankruptcy relief.
Answered on Dec 14th, 2011 at 4:28 PM
Debtor's Rights Attorney serving Atlanta, GA
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Theodore N. Stapleton, P.C.
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The only suit for foreclosure after a bankruptcy in which you did not reaffirm the mortgage would be a suit to confirm the foreclosure sale to establish an unsecured deficiency. If you reaffirmed then they can foreclose if you are in default.
Answered on Dec 14th, 2011 at 4:27 PM
Daniel James Wilson
Your question is not completely clear, but I will hazard an answer. Your BK discharged your debt on the home purchase loan. It sounds like you have moved out of the house. In order to gain clear title the lender must go through the foreclosure process. Due process requires that you be noticed at every step. If my assumptions are correct you have nothing to worry about.
Answered on Dec 14th, 2011 at 2:03 PM
Bankruptcy Attorney serving Concord, CA
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William Rubendall Attorney at Law
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After bankruptcy you no longer have personal liability for your mortgage. The lender, however, retains its security interest in the property and can foreclose if payments are not being made.
Answered on Dec 13th, 2011 at 7:36 PM
Bankruptcy Attorney serving Livonia, MI
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Charles J. Schneider, P.C.
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In order to obtain possession of the home/collateral the creditor must foreclose. This does not mean you will owe any money.
Answered on Dec 13th, 2011 at 1:51 PM
You may have several options to help save your home, at least for a period of time. A foreclosure defense attorney might be able to assist you in mounting a defense to the foreclosure action. You also may be eligible for a loan modification to reduce your monthly payments to a more affordable amount. If you have just completed a Chapter 7 bankruptcy, you may be able to file a Chapter 13 bankruptcy in which your arrears can be repaid in a 3 - 5 year payment plan, and depending on your jurisdiction, you may be able to modify your loan in this process. An automatic-stay provision would apply where your foreclosure proceeding would be stalled for a period of time. Seek the guidance of experienced local counsel to help determine your best option based on your specific circumstances.
Answered on Dec 13th, 2011 at 11:19 AM
Immigration Attorney serving Salinas, CA
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Law Office of Magnolia Zarraga
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Did you file bankruptcy through an attorney? If so return to that attorney and tell them what's going on. It isn't too clear from your question what is really happening. Do you mean the lender has already foreclosed on the property and you are being sued for a deficiency by a second lender? That is not allowed after bankruptcy, so get yourself to your attorney. However if you mean the lender is foreclosing on the property that is a different story. The loan was secured by the home and if you stopped making payments on the loan, they have the right to foreclose on the property this is true even if you filed bankruptcy. If the lender already foreclosed on your home and is now suing to get you out of the home, that's an unlawful detainer (eviction) and your bankruptcy doesn't protect you from that. As you can see there are lots of nuances and it is best to consult with your prior bankruptcy attorney or someone who you can explain the situation fully to and ask questions of. Good Luck.
Answered on Dec 13th, 2011 at 9:03 AM
Chapter 13 Bankruptcy Attorney serving Bloomington, MN
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Gregory J. Wald
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If the debt was discharged in your bankruptcy, then you are not personally liable for it and you have a defense in bankruptcy court if they try to collect it from you. The mortgage company is only entitled to take the house back. If the debt was not discharged, you may be able to file a chapter 13 bankruptcy to deal with it, depending on when your last case was filed.
Answered on Dec 13th, 2011 at 9:00 AM
Consumer Bankruptcy Attorney serving Worcester, MA
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Law Offices of James Wingfield
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If you file for bankruptcy and receive a discharge, you are no longer personally liable for the balance due under the mortgage. However, that does not mean that you are off the hook for payment of the mortgage, assuming you want to keep the house. If you want to stay in the house, you will need to pay your mortgage. So, if I understand your situation correctly, the bank is now seeking to foreclose on the mortgage to take possession of the house. Assuming you want to keep the house, your options are to seek a modification of the loan with the lender, file a case under Chapter 13 in order to have time to repay the mortgage arrears (you will not be permitted an additional discharge if you filed your previous case under Chapter 7 in the past 8 years or under Chapter 13 in the past 6 years), or refinance the mortgage with another lender.
Answered on Dec 13th, 2011 at 8:49 AM
Bankruptcy Attorney serving Hayward, CA
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Carballo Law Offices
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It must be for a second mortgage loan because you cannot be sued on the first mortgage if the lender foreclosed using the non-judicial trustee's sale procedure as in almost all foreclosures in California. If the second mortgage was not a purchase money loan (such as a line of credit or refinance) then you are liable for the second mortgage loan after the foreclosure by trustee's sale. You can file a bankruptcy case and discharge the debt related to the second mortgage loan like a credit card bill, personal loan or medical bill.
Answered on Dec 13th, 2011 at 8:36 AM
Family Law Attorney serving Indio, CA
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Law Office of Xochitl A. Quezada
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If it's your primary residence then you do not owe the deficiency in the state of California.
Answered on Dec 13th, 2011 at 8:14 AM
You may want to consider filing for chapter 13 protection. While you would not be able to get a discharge at the end (assuming your chapter 7 was fairly recent) it could give you the space and time needed to get caught up on the amount you are behind on your mortgage. Contact a bankruptcy attorney in your area for more infomation on what options you might have. Good luck!
Answered on Dec 13th, 2011 at 8:13 AM
Glen Edward Ashman
It sounds like you made a really bad move - filing bankruptcy without a lawyer. When you file bankruptcy and own a home you are not going to keep, it gets foreclosed on. That should not be a surprise. Did you think you'd get to keep it without paying? Foreclosure is how the bank gets the property back.
Answered on Dec 13th, 2011 at 8:12 AM
Criminal Defense Attorney serving Summit, NJ
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Stephen P. Dempsey Counselor at Law
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Foreclosure is really just an action by the bank to take possession of the property. If you filed bankruptcy and included the mortgage, then that debt has been discharge and you will not be responsible for any deficiency.
Answered on Dec 13th, 2011 at 8:12 AM