Does Your HELOC (Home Equity Line of Credit) Have You Locked?
A few years ago when your home had equity, you obtained a Home Equity Line of Credit or HELOC to consolidate your debt and payoff credit cards, medical bills, personal loans, etc. It seemed like a great idea because you could eliminate all of your revolving debt and make only two payments each month…your first mortgage and your HELOC payment. This approach also provided a way to lower your monthly payment, since the interest rate on the HELOC was less than what you were paying on credit cards. And we all thought at that time your home would appreciate in value!
That was circa 2008 and here you are in today. You are lucky if your home is worth what you owe on the first mortgage, there’s no way will it will cover the HELOC. So your HELOC has you locked! What are your options?
Do absolutely nothing – You can see what is the HELOC creditor is going to do.
The HELOC creditor could foreclose on your home but probably not, since they would receive little if anything from the sale. However, your credit will be negatively impacted because of late, slow or no payments on the HELOC. The impact on your credit will make it difficult for you to obtain other credit for another car or other needs.
The HELOC creditor may actually decide to foreclose on the property. They know they will receive little or nothing from the foreclosure, but they can write-off the bad loan from their books making the company more financially sound.
The HELOC creditor may write-off the debt on the loan and send a 1099C to you and the Internal Revenue Service. It appears that this voluntary non-payment is excluded from the Mortgage Forgiveness Debt Relief Act of 2007. At this point you will be responsible for taxes on the forgiven debt. You should also remember that the creditor writing off the debt does not eliminate the lien by deed of trust on your home. If you try to sell the house in the future, you must still deal with the HELOC creditor before you can convey the deed to another person.
Sell the home – You would sell the home, but you can’t get enough to pay the first mortgage and the HELOC.
You’ve talked to the HELOC creditor about a short-sale, and they want you to come to the closing table with at least some money to pay them.
Since you don’t have the money at closing, they have agreed to release the lien for you to sell the house, but they want you to sign an unsecured loan on at least a portion of the debt you owe them. That is an option, but do you really want to pay for a house you do not own? If you default on this unsecured loan in the future, they can actually sue you for the unpaid debt.
Chapter 13 bankruptcy – You can file a Chapter 13 bankruptcy to resolve the HELOC and any other outstanding debt.
The key is that your first mortgage must be greater than the value of your home.
You will be required to file a lawsuit or adversary proceeding in bankruptcy against the HELOC creditor.
You must complete your bankruptcy and receive a discharge.
This approach will allow you to retain your home and make it a more valuable asset, since you will no longer be saddled with the HELOC.
We you speak with your accountant or a bankruptcy attorney to determine what option is best for you.
What Steps Do I Take to Obtain a Loan Modification?
It is possible to obtain a loan modification even if you have filed bankruptcy. At this time, most mortgage companies would rather work out a loan modification agreement, if viable, than to foreclose on your home. The last thing most mortgage companies want is another vacant house!
Steps to Follow:
Step #1: You should contact your mortgage company and express your interest in obtaining a loan modification. If you are in bankruptcy, they may indicate that your bankruptcy attorney must provide a release form before they will agree to speak with you. If that should occur, contact your bankruptcy attorney to obtain the authorization letter.
Step #2: After receipt of the authorization letter, the mortgage company will send a package of materials for you to complete as well as request that you provide income tax returns, paystubs, and other relevant information. You should complete the paperwork in its entirety and provide all the information the mortgage company requested. If you do not thoroughly complete the package or fail to provide additional information they requested, the mortgage company may reject your request for a modification or it may slow down the process.
Step #3: Before you submit the package to the mortgage company, Duncan Law recommends you make a copy of your completed package. This will come in handy if the mortgage company has specific questions or indicates they did not receive a document in your package.
Step #4: We also recommend you send your loan modification package to the mortgage company either overnight mail or certified mail so that you can track your package and be sure it was received by the mortgage company. Often the mortgage company will provide an overnight envelope for mailing the loan modification package. Be sure to keep your receipt so you can track the package.
Step #5: Now is the hardest part…waiting for a response. Each mortgage company is different when it comes to the timeline for responding on the loan modification. Some mortgage companies indicate they will respond in three to four months, others indicate it can be up to one year. It does not hurt to be the “squeaky wheel”. If you haven’t heard from the mortgage company, you may want to follow-up every two weeks. Do not be surprised if the mortgage company requests additional information.
Step #6: Once you are approved for a loan modification, you may need to contact your bankruptcy attorney.
If you are in an active Chapter 7 bankruptcy, you should contact your bankruptcy attorney to see if it is necessary to obtain the Court’s approval of the modification agreement.
If you were in a Chapter 7 bankruptcy and your case has been completed, a final decree has been issued, it is not necessary to contact your attorney. You do not need approval to can sign the documents with the mortgage company. However, you may find it helpful to retain a real estate attorney to review the modification agreement.
If you are in an active Chapter 13, you should contact your bankruptcy attorney. It will be necessary for the bankruptcy court to approve the loan modification agreement. Your bankruptcy attorney will need the terms of your modification agreement so they may file a Motion to Incur Debt. It takes approximately 30 days to obtain approval of the loan modification from the bankruptcy court. You should work closely with your bankruptcy attorney through this process.
If your Chapter 13 bankruptcy has been dismissed or discharged, it is not necessary to obtain the bankruptcy court’s approval. You may work directly with the mortgage company, but again, you may want to seek the advice of a real estate attorney.
Again, it is important to be thorough in completing your loan modification paperwork, and persistent in your follow-up and interactions with the mortgage company. Good luck in your efforts to obtain a loan modification with your mortgage company.
Bankruptcy v. Deed In Lieu of Foreclosure
Clients have frequently asked us what is the difference between a deed in lieu of foreclosure and a bankruptcy?
First, a deed in lieu of foreclosure (DLF) is when the homeowner signs over and transfers the deed to the home to the mortgage company without the legal process of a foreclosure. Most people believe this will look better on the credit report than a bankruptcy or a foreclosure. This is possible, however a DLF does not wipe out the pre-existing debt on the home as a bankruptcy would do. In other words, you as the homeowner would still owe the deficiency debt on the mortgage, the DLF just saved the mortgage company the time and expense of foreclosing. It does not eliminate the debt you owe them! This is the same on a “short sale”.
The mortgage company will eventually sell the home, usually at a loss, and demand you pay them the difference in money unless you have agreed in writing to wipe out the debt still owed. This debt is usually several thousands of dollars and possibly tens of thousands of dollars. The difference in what you owe the mortgage company and the amount they sold the house for is called a “deficiency balance”.
If you do not pay the mortgage company the money they have demanded, they could sue you for the difference they lost from the sale of the home. The mortgage company will usually win the lawsuit because you do owe them the deficiency balance unless you have reached an agreement with them saying that you will not owe the deficiency balance.
In the alternative, the mortgage company could believe the debt is “uncollectable” from you and forgive the debt. You may think, “that’s great!” However, there’s a catch. The mortgage company will try to “write off” these thousands of dollars of loss on their taxes by filing a 1099(c) with the IRS eliminating your debt to them. The drawback is the IRS will consider this “forgiven” debt to be gross income if it totals more than $600. In other words, you don’t have to pay back the full amount of the debt but the IRS will tax you on that forgiven debt as gross income. For example, the mortgage company losses $50,000 on the sale of your home. The IRS will expect you to pay taxes on the $50,000. If you are in the 25% tax rate, you would have to pay $12,500 in taxes to the IRS. If you do not have the $12,500, the IRS could start assessing you penalties and interest. That could, in turn, lead to the garnishment of your paystubs!
In contrast, a bankruptcy will usually eliminate any deficiency balance you owe the mortgage company. Therefore they cannot sue you or attempt to collect the deficiency balance you owe them. The IRS usually cannot tax you for the deficiency balance you owe the mortgage if you file the bankruptcy. If you file bankruptcy, you are considered insolvent, and the IRS must waive the tax liability on the 1099 if you are deemed insolvent.
In conclusion, consider your options. However we believe surrendering the home in bankruptcy and wiping out any deficiency balance and eliminating your other unsecured debts, such as credit cards and medical bills, is usually a better alternative than a deed in lieu of foreclosure.
Confessions of Former Debt Collectors via CNN
Today CNN is running an eye opening article about the tactics and strategies used by debt collectors or creditors. The article covers 10 different people who used to call and harass people for a living. They unveil some of the extreme tactics that creditors use to get money from debtors. A common theme that is seen throughout the ten different stories is the fact that these people make their money by collecting money.
Many of these creditors are on commission and the more money they bring in the more money they make for a living. Is this the best way to ethically collect debt? We too often see that creditors will bend or even break consumer protection laws simply to make a little more money. If they aren’t being commissioned then maybe there would be more civility in the debt collection profession. Regardless, this is a great article by CNN – check it out. The article is called Confessions of Former Debt Collectors.
Will Bankruptcy Stop An Eviction from an Apartment or Rental House?
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Generally speaking, bankruptcy will not stop an eviction. In 2005, the bankruptcy laws were changed under the Bankruptcy Abuse Prevention Consumer Protection Act. This act prevents bankruptcy from stopping evictions on rental properties, which are properties that are being leased. In other words, if you are facing an eviction from an apartment or rental property bankruptcy cannot stop that eviction process. However, bankruptcy may still be an option for you to consider. Depending upon your landlord, they may come after you for the past due rent. They could sue you and get a judgment against you on the amount past due. Filing for bankruptcy will wipe out the amount owed to your landlord and stop them from getting the judgment or wipe out the judgment if they had already obtained it.
What if you have a house that is facing a foreclosure though? If you have been given a notice of sale or foreclosure on your home, then bankruptcy may be an option to consider. Here is more information on how bankruptcy can stop the foreclosure of a home. Be sure to contact an attorney as soon as possible to explore your different options.
What if I Get Behind in My Mortgage Payment While in Bankruptcy?
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We understand that sometimes after filing bankruptcy different situations come up that may cause you to fall behind on your mortgage payment. It’s important to realize there are a number of consequences that come from falling behind on your bankruptcy. We will look at them depending on which type of bankruptcy you file, a Chapter 7 bankruptcy or a Chapter 13 bankruptcy.
Chapter 7 Bankruptcy:
In a Chapter 7 bankruptcy, one must be current on their mortgage payment at the time of filing and throughout the duration of the bankruptcy in order to keep the house. If you were to fall behind on your mortgage payments there would be two important time periods to consider. In other words, you need to know where you stand in the bankruptcy.
Before the Final Decree (End of Bankruptcy):
If you fall behind on your payment before the bank has received the final decree, the mortgage company could potentially take legal action. The mortgage company may choose to file a Motion for Relief from Automatic Stay. In other words, they would be asking the court for permission to begin foreclosure proceedings on the home. The Motion for Relief from Automatic Stay will likely be granted to the mortgage company unless you are able to bring the payments current by the hearing date.
After the Final Decree (End of Bankruptcy):
If you fall behind on your payment after the Final Decree, then it’s the same as if you haven’t filed bankruptcy. The mortgage company no longer has to ask for permission from the court to begin foreclosure since your bankruptcy is over once the Final Decree is entered. Therefore, the mortgage company would decide when they wanted to begin foreclosure proceedings on the home.
Prevention:
Be aware of when your mortgage payments are due each month and make a valuable effort to make sure they get to your mortgage company on time. It is common in Chapter 7 bankruptcy for the mortgage company to stop sending statements and/or to stop automatic drafts. You should keep an eye on your automatic drafts to be sure your payments are being made on time. Be sure you pay the mortgage payment on time every month, even if you do not receive a bill or a statement.
Chapter 13 Bankruptcy:
What’s important to consider in a Chapter 13 is at what point in the bankruptcy you have fallen behind on your payment.
Not Behind at the Time of Filing Bankruptcy
If you are not behind at the time your Chapter 13 bankruptcy is filed, the mortgage payment will not be included in your monthly payment to the Trustee. This is considered “paying outside of the plan” since it will continue to be paid as a separate payment. You will continue to make a separate payment to the mortgage company only if you are current at the time of filing and throughout the duration of the bankruptcy.
Behind at the Time of Filing Bankruptcy
One reason why people choose to file a Chapter 13 bankruptcy is because they are behind on their mortgage payments and need to get caught up. If you are behind on your mortgage payment at the time of filing, it will be included in your Chapter 13 monthly payment to the bankruptcy Trustee.
Not Behind at the Time of Filing But Later Fall Behind
If you are not behind on your mortgage payment at the time of filing but then fall behind during the bankruptcy, your Chapter 13 monthly payment will increase. The mortgage company is a secured debt and must receive a monthly payment. Therefore if you fall behind it then needs to be included in your Chapter 13 monthly payments. Your monthly payment to the Trustee will increase, because the mortgage company is one of the first creditors to receive payment. The Chapter 13 office will request that the mortgage company be added to your monthly payment, which will increase as a result.
Prevention:
If you are making your mortgage payments “outside of the plan,” or in other words, making separate payments to the mortgage company, be aware of when they are due and be sure the mortgage company receives your payments on time. As we discussed in the Chapter 7 section, it is common for billing statements and/or automatic drafts to be stopped during bankruptcy, so be sure you pay the mortgage payments on time, regardless of whether you receive statements.
What If I Walk Away From My Home and Don't File Bankruptcy?
When we have a consultation with a prospective client we do everything we can to explore every option that the client may have. Then, the client decides which direction they would like to head. One of the frequent questions we get is what happens if instead of filing a Chapter 7 bankruptcy or a Chapter 13 bankruptcy they just give up the house and walk away. The answer to that question really depends upon whether or not you have any equity in your house. Equity is the difference between the value of the house and how much you owe.
Substantial Equity: If you have substantial equity in your house then you may be okay just walking away. Typically what happens is the bank will foreclose on the home after you walk away and sell. According to a MSN Money article, John T. Reed, the Editor of Real Estate Investor’s Monthly, a foreclosed home will sale about 5% below the market average but may be up to 30% or 40% below market value.
If the mortgage company is able to recover the full amount that you owe on the property then you are not likely to owe any more money for the foreclosed home. However, you will still have a foreclosure that appears on your credit report.
Little to No Equity: If you have little to no equity in your home and the bank is unable to recover the amount you owe then you will be responsible for the unpaid balance which is called the deficiency balance. In other words, if your foreclosed house sold for $100,000 but you owe $150,000 on the house, then you would still owe the bank $50,000. It is unlikely that you will have $50,000 to pay out of pocket so the bank has the ability to file a lawsuit against you and obtain a judgment. That judgment could eventually lead to a lien on your different types of property. Liens are bad news – you don’t want one!
Typically speaking, foreclosed properties will not recover the full amount owed to the bank for the mortgage. Therefore, they will look to you to pay the deficiency balance. A bankruptcy has the ability to potentially wipe out this entire balance.
The bottom line: if you still owe money for the mortgage even after the foreclosure sale of your home then you will be liable for those costs. Bankruptcy can usually wipe out that left over balance. If you do nothing they will file suit against you and have a judgment that may attach to your property. Ideally, you don’t want a foreclose to appear on your credit. Bankruptcy gives you the ability to keep the foreclosure off your credit and wipe out the deficiency balance.
