QUESTION

I owed a 2nd mortgage when my house was foreclosed. Can I get that debt discharged?

Asked on May 26th, 2015 on Foreclosures - Illinois
More details to this question:
I was married at the time we took out a 2nd mortgage on the house. We ended up divorcing, the house was foreclosed upon, my ex-husband passed away and now the mortgage company is coming after me for the 2nd mortgage. The mortgage company sent it to a collection agency. Is there any way to get out of paying the 2nd mortgage?
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1 ANSWER

First, we need to distinguish between lien (Mortgage) and debt (Note).  The Mortgage was included in the foreclosure by virtue of its being attached to the property, which appears to have sold at Sheriff's Sale.  It attaches only to the property and it affords the right to foreclose upon non-payment.  It will survive a BK, but not a state foreclosure. It appears that, if not extinguished yet, it is in the process of being extinguished. As to you, the personal promise to pay is the Note.  This appears to be what is in collection and payment can be averted by a Chapter 7 filing.  That obligation is subject to any discharge entered.  Depending on the exact state of the Foreclosure, this may be affected by a Chapter 13 as well, but you may be forced to pay cents on the dollar. You should make an appointment with a Bankruptcy attorney to determine if you pass the Means Test so you are able to file a BK7.  Also, you can determine what, if anything, a filing will do to you and the costs as well as insuring it will do what you wish it to do.  Since you are also divorced [before his passing], a copy of that Judgment should be brought and reviewed to insure that it has no effect on the dischargeability of the Mortgage.  If there is a right to sue your ex-husband' estate, that can be discussed with the attorney as well.
Answered on May 28th, 2015 at 8:00 AM

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