The short answer to the question is yes. When a homeowner is facing foreclosure they should immediately look at their options in filing bankruptcy. Whether you are looking into options for keeping the house or surrendering it, bankruptcy could very well be the best option for you. The hardest decision for most people comes down to whether they want to try and save their home or surrender their property within the bankruptcy. Generally speaking, most clients will have to choose between the two options, but the good news is you’re not alone. Meeting with an experienced bankruptcy attorney can put you on the right track and offer a different perspective. It’s important to have someone on your team who is experienced and will offer guidance to you and your family.
Before we talk about the benefits of each type of bankruptcy when it comes to the foreclosure of your home lets first briefly discuss how bankruptcy stops foreclosures.
The Automatic Stay
An automatic stay is enacted when you file for bankruptcy. That is a fancy way of saying that the filing of a bankruptcy puts a freeze on all collection efforts, including foreclosures. If a creditor tries to collect debts, foreclose on a property, try to repossess a vehicle, etc. then they are violating federal laws and could face sanctions. So no matter which type of bankruptcy you file there will be an automatic stay that goes into place, which will stop a foreclosure. However, that automatic stay only lasts for different periods of time depending on which type of bankruptcy you file. So lets talk about each of those different types of bankruptcies.
Chapter 7 Bankruptcy and the Foreclosure of a Home
The bad news first, a Chapter 7 bankruptcy typically means you will ultimately end up losing your house. Someone who is facing a foreclosure may choose to file a Chapter 7 bankruptcy if they believe the house isn’t worth keeping in the long run.
There is some good news. Filing a Chapter 7 bankruptcy before the foreclosure will allow them to keep the foreclosure off of their credit and will wipe out any potential deficiency balances from the foreclosure…that’s really important! Also, although filing a Chapter 7 bankruptcy will not protect your house long term if you are behind on the house payments it will make the foreclosure process start back over. This will typically buy you another three months or longer in the house. (We’ve had people in their property for two years after surrendering it in a bankruptcy.) Live there rent and mortgage free and save your money up for the next place you move to. A Chapter 7 bankruptcy will also wipe out most of your unsecured debts like credit cards, medical bills and unsecured personal loans. There have also been rare circumstances where someone has surrendered their house within a Chapter 7 bankruptcy and then the bank is willing to try to work something out and modify or refinance the house after the bankruptcy. Like we said, this doesn’t happen often but it is another possibility.
Chapter 13 Bankruptcy and the Foreclosure of a Home
Has your mortgage company been dragging you along for months now? They keep telling you they are working on a loan modification but haven’t actually delivered on their promise? Don’t let your sale date come and go before finding out what your options are for filing bankruptcy. The mortgage company is not keeping your sale date in mind and could very well lead you right in to losing your home through foreclosure. If you want to keep the house and get on a repayment plan, you need to look into filing Chapter 13 bankruptcy before it’s too late. This type of bankruptcy will reorganize your debts and allow you to get assistance on paying back what’s behind on the house over 3-5 years. Depending on what you are behind on the house and how much other debt you have, you will probably be on a repayment plan for 5 years which will allow you to keep a low monthly payment to pay back the arrearage amount on your house. A Chapter 13 bankruptcy will also allow you to usually only pay back a portion of your unsecured debts like credit cards, medical bills and unsecured personal loans. At the end of your Chapter 13 bankruptcy you could potentially save your home and have no more unsecured debts.
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