What if I Get Behind in My Mortgage Payment While in Bankruptcy?

Jun 26, 2010 2 Comments by

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.

After You File, Automatic Stay, Bankruptcy, Bankruptcy Video Vault, Duncan Law Blog, Foreclosure, Motion for Relief from Stay, Video
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About the author

At Duncan Law, LLP our goal is pretty simple. We try to make people's lives better. And in doing so we try to treat people the way we would want to be treated. It's just that simple.

We practice primarily in the areas of bankruptcy and workers' compensation. We have offices in Charlotte, Greensboro and Winston-Salem, NC.

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2 Responses to “What if I Get Behind in My Mortgage Payment While in Bankruptcy?”

  1. Bryan says:

    Hi, i liked all the info on your site, very informative. I have a question, my primary house had a baloon payment that was due in jan 2010. it came and went, and now i have no mortgage payment that is due monthly per say, the whole note was due in jan 2010. is the house then treated as any other secured debtor9i.e like a car loan etc. ) since there is no payment due monthly, as the terms of the mortgage have technically expired, and there is no mortgage payment to send monthly to anyone as it was all due, can the house be crammed down like a car can? as i read the section it referes to” primary mortgage” it does not seem to have a provision for an instance such as mine. the value of the house is about 31,000 and the debt is 59,000 and change and growing with fees etc. can it be reduced to actual value as secured and balance unsecured under a chapt. 13. biforcate the loan amout? just curious as to your thoughts on this. thanks bryan

  2. Damon Duncan says:

    Bryan,

    Thanks for checking out our website. I obviously can’t give specific legal advice since we are not your attorneys. However, in general if it is your primary residence it typically cannot be crammed down. It sounds like the balloon payment has already been called due so you are, technically, responsible to pay the entire amount right now and the mortgage company could start the foreclosure process due to default. You could attempt to file a Chapter 13 bankruptcy and pay it back in full over five years or you could try to refinance the loan to have a fixed, long term rate.

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