Does Filing Bankruptcy Stop Foreclosure?
Receiving a foreclosure notice from your mortgage company is upsetting, but there are a few things that you can do to save your home, such as paying the past due amount, contacting the mortgage company to discuss a mortgage modification, or hiring a lawyer--like Harold Jarnicki Attorney At Law--that specializes in fighting the foreclosure in court. Even though there are other options available, many people consider filing bankruptcy to save their homes. If this is you, you'll be happy to know that filing bankruptcy could save your home. However, before you file, you need to take a few things into consideration.
Automatic Stays
When you file bankruptcy, the court issues an Order of Relief. The order gives you an automatic stay, which tells your creditors to cease all collection attempts. This stops the foreclosure process until the bankruptcy is complete, which can take three to four months. The good news is that once the court issues the automatic stay, your mortgage company has to stop the foreclosure process, even if your home is already scheduled for a foreclosure sale. However, the mortgage company has the option to file a motion to lift the automatic stay order, and if the court grants the request, the mortgage company can schedule the sale of your home.
Chapter 13 and Chapter 7
Chapter 7 bankruptcy forgives all of your debts, including your mortgage. However, because your house is used as collateral for your mortgage, your mortgage company receives that house as part of your bankruptcy agreement.
Chapter 13 bankruptcy allows you to set up a repayment plan to off your past due bills, including the past due portion of your mortgage. All of your past due payments are rolled into one monthly payment that you're required to make for the time specified in your bankruptcy papers. However, before you file Chapter 13 bankruptcy, you need to make sure you have enough income to pay your bankruptcy payment in addition to your current mortgage payment and monthly expenses.
Second and Third Mortgages
When you file Chapter 13 bankruptcy, you're required to pay 100 percent of the default payments on your first mortgage if you want to keep your house. However, you may not be required to pay back all of your second and/or third mortgage.
If your first mortgage is secured by the entire value of your home, the court might be allowed to recategorize your second and/or third mortgage as unsecured debt. Chapter 13 bankruptcy repayment plans prioritize unsecured debt last, so people aren't always required to pay off all of the unsecured debt that they owe.
The amount of money you pay towards your unsecured debt depends on the amount of disposable income you have each month, how long your repayment plan lasts, and the total value of your nonexempt property. This means, if you don't have a lot of nonexempt property or disposable income, there's a good chance some or all of your additional mortgages could be forgiven if the court re-categorizes the mortgage(s) as unsecured debt.
While filing for bankruptcy can stop foreclosure on your home, the process is more complex than filing bankruptcy before your house goes into foreclosure. Because of this, you should talk to a foreclosure lawyer and a bankruptcy lawyer before you file bankruptcy so that you can weigh all of your options before you make the final decision.