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So, you’ve received a foreclosure notice. Should you file for bankruptcy? Will a bankruptcy proceeding help you hang onto your home? If you are successfully discharged from your mortgage debt, will you still have to make payments in the future?
Bankruptcy is serious business and has many significant repercussions that can impact your life in the short and long term. In some cases, filing for bankruptcy can help you prevent foreclosure – sometimes permanently, so long as you make your payments, and sometimes temporarily.
There is no one-size-fits-all solution. How bankruptcy will impact your impending foreclosure will depend on several factors, such as the type of bankruptcy you file for and how much equity you have in your home.
In this article, we’ll explore the relationship between bankruptcy and foreclosures. If you have any questions about your individual situation or bankruptcy and foreclosure more broadly, please contact our friendly team. We’d be happy to walk you through your options and guide you toward your desired outcome.
An automatic stay is a provision under United States bankruptcy law that enables a bankruptcy filing to prevent foreclosure for a period of time. It stops creditors, government departments, and collection agencies from pursuing owed funds from debtors that have filed for bankruptcy.
In practice, if you file for bankruptcy before your lender begins or finishes a foreclosure, an automatic stay will postpone your foreclosure. Your stay applies from the day you file for bankruptcy and ends after court proceedings.
If you do not pay your mortgage or are behind on payments, your lender may file a motion that allows them to execute a foreclosure during your bankruptcy proceedings. If the court grants your lender’s motion, they are permitted to continue with your foreclosure.
For many, a discharge from debt is the goal of filing for bankruptcy. If you are granted discharge from a debt, you are no longer personally liable for that debt. In some cases, you can pursue a discharge from your mortgage debt.
Individuals can file for bankruptcy in one of two ways – Chapter 7 bankruptcy and Chapter 13 bankruptcy. A trusted attorney can advise on the best path forward for your personal situation. The pathway you take will affect your potential mortgage debt discharge.
If your mortgage debt is discharged under a Chapter 7 or Chapter 13 bankruptcy, you cannot be held personally liable for your mortgage debt. However, that does not mean you are permanently protected against foreclosure.
Let’s say you file for bankruptcy and are discharged from your mortgage debt. You cannot be held personally liable for that debt, but the lender may still have a right to foreclose your property. It seems contradictory, so let’s take a closer look at the mortgage lien and how that impacts foreclosures following a successful bankruptcy proceeding.
In most cases, when you take out a mortgage, you are committing to two legal obligations:
You are relieved of your personal promise to repay the lender when you are discharged from a mortgage debt via a bankruptcy filing. The lien remains active. This enables your lender to foreclose on your property following the automatic stay, or if you have defaulted on your payments, after your bankruptcy proceedings are completed.
In a Chapter 7 bankruptcy, a bankruptcy trustee is nominated to liquidate your assets. The proceeds are used to pay off your debt. When all proceeds are exhausted, the leftover debt is discharged. In most cases, a Chapter 7 bankruptcy cannot prevent foreclosure altogether. But it can delay it temporarily.
Here are several scenarios to consider:
If you file for Chapter 13 bankruptcy, you will be obligated to pay part or all your debt through a repayment plan (generally over three to five years, depending on the amount of debt owed and your income). If granted, these repayments can include money owed on your mortgage.
So, if you are behind on your mortgage payments and want to keep your home, Chapter 13 bankruptcy may help you reach your goals.
Navigating bankruptcy, foreclosure, and the intersection between the two is no easy task, so don’t go it alone. To ensure you have the best chance of achieving your desired outcome, enlist the help of a professional bankruptcy attorney.
At The Law Office Of William J. O'Neil, we stand by our clients’ sides every step of the way, leveraging our deep experience, passion, and empathy to mitigate risk, minimize damage, and protect their interests. If you would like to discuss your personal circumstances, please don’t hesitate to reach out today. We are here to help.
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280 North Main St
Suite 6
East Longmeadow, MA 01028
Phone: 413-675-5151
Email: wjoneil2@verizon.net
Disclaimer: The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.
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