The loss of a home is tragic under any conditions. The loss of a home to bankruptcy is a tragedy. However, there are measures within the Bankruptcy Code which will "exempt" a home from the bankruptcy process. However, the debtor must be able to prove that, once debt is discharged, they are able to then make mortgage payments in a timely manner. Aurora bankruptcy lawyers have the knowledge and experience to help you make that determination.
Bankruptcy is a powerful tool to delay or prevent a foreclosure and give you time to reorder your finances. Filing a bankruptcy petition for either Chapter 13 or Chapter 7 with Aurora bankruptcy lawyers results in the court issuing what is known as an automatic stay. This action "stays" or stops many actions, such as debt collectors harassing calls, evictions and foreclosures, but only under certain conditions:
-- The lender cannot obtain a motion to lift the stay - If you lender can convince the court that you are unable to retain your home - you are in arrears, you have no equity in your home and, even after the bankruptcy, you finances do not appear to allow to make the payments, then the count will very likely grant the motion to life the stay and the foreclosure will proceed.
-- The foreclosure notice has not already been filed - Many states have laws that require lenders to give homeowners advance notice of a foreclosure, sometimes as long as three or four months. If, during that three or four months, you file for bankruptcy and the notice runs out before the bankruptcy is complete, the court will lift the stay and the foreclosure will proceed.
Chapter 13 and Foreclosure
If you are in arrears on your mortgage and no means to catch up is apparent, then Chapter 13 bankruptcy may be your best option. Chapter 13 is also know as the "Wage Earner" plan or "Reorganization Plan" in that it will allow you to stay in your home and pay off your arrearages over a length of time far longer than you probably could have negotiated with your lender on your own. Aurora bankruptcy lawyers can assist you in understanding the Chapter 13 schedule.
Chapter 13 bankruptcy petition will also absolve you of any second or third mortgage you might have on your home. Your first mortgage is secured by the entire value of your home. If the value of your home has dropped significantly, then there will be no value left over to secure the second or third mortgage. As a result, the bankruptcy court will classify these other mortgages as "unsecured debt". And, unsecured debt is last in line to be paid off in a Chapter 13 filing and may, therefore, be discharged leaving you owing nothing on them.
Once, borrowers were responsible for any tax losses incurred by the lender as a result of foreclosure. But, thanks to a new law that took effect in 2007, you are no longer responsible for those losses. However, you will not be protected from those taxes if the additional mortgages were not used for improvements to the securing property or if those loans were secured by other property, such as a second home.
Chapter 7 and Foreclosure
Chapter 7 bankruptcy may not save your home. As Chapter 7 is often referred to as "liquidation" bankruptcy, the court may order you to well you home in order to pay off debts. Only if you have no equity in you home would Chapter 7 work to your advantage.
Even if a Chapter 7 discharges the arrears on your home, you may still owe that amount to your lender. Why? Because, when you bought your home, you signed two documents - one was a promissory note that indebted you to pay the mortgage and the other was an agreement that could be recorded as a lien in the event you failed to make your payments. So, by this time in your difficulty, your lender has probably already recorded this second document as a lien against you. And, even if the Chapter 7 discharges your debt, it has no effect on this lien against you so you will probably have to relinquish the house anyway as it was the collateral for the mortgage note
When faced with the possibility of bankruptcy, Aurora Bankruptcy Lawyers can help get your financial situation back under control.