Posted on: 20th Mar, 2008 03:11 am
if you're behind on your mortgage, and there aren't any alternatives available to help you get out of the problem, you'll have to decide between foreclosure and bankruptcy chapter 13.
when to file chapter 13 and why
when you have to decide upon foreclosure vs bankruptcy, the first thing to ask yourself is whether you'd like to keep the house. if you're keen on keeping the house, filing for chapter13 makes sense. this helps you to pay off all or part of the mortgage, especially the amount by which you're behind on the loan. the payoff period in chapter 13 is quite short, that is within 3-5 years. however, you'll have to go through credit counseling session within 6 months prior to the date of filing bankruptcy. then you'll have to pass through the means test which confirms whether you're eligible for chapter 13.
more about chapter 13
when you file for chapter 13, you must create a repayment plan and submit it with your petition. the court appointed trustee will then review the repayment plan with your attorney and your creditors. the trustee will then negotiate with your attorney and lender if any alterations to the repayment plan are needed.
once your bankruptcy petition has been filed, your lender is barred from suing you in foreclosure during the bankruptcy proceeding and for at least 30 days after your case has been closed.
the question of foreclosing at the end of the 3-5 year period doesn't arise if you have cleared the debt and are able to continue paying down the outstanding balance. however, you will have to wait 1-2 years after your bankruptcy case has been finalized to try for a refinance.
once your bankruptcy petition has been filed, your lender is barred from suing you in foreclosure during the bankruptcy proceeding and for at least 30 days after your case has been closed.
the question of foreclosing at the end of the 3-5 year period doesn't arise if you have cleared the debt and are able to continue paying down the outstanding balance. however, you will have to wait 1-2 years after your bankruptcy case has been finalized to try for a refinance.
foreclosure vs bankruptcy chapter 13
chapter 13 shows you've tried to clear debts instead of avoiding them, and this has a more positive impact on your credit report than foreclosure does. however, if you fail to reorganize your debts and catch up with the payments, the bank is likely to foreclose after your bankruptcy, and then you'll have both bankruptcy and foreclosure on your credit. so, you shouldn't miss any payments under the chapter 13 plan or the court will dismiss your case and then you'll have no option but to go through a foreclosure.
another positive aspect of chapter 13 is that it helps you keep your home. but when you end up in foreclosure, you may lose the house and if the house doesn't sell for the total amount of the loan, the lender will file a deficiency judgment. this will be reported on your credit report and is likely to affect your credit.
there are tax issues involved with deficiencies. if the lender forgives the deficiency you will have to report the forgiven amount on your federal income taxes. however, even though you report that the deficiency was forgiven, does not mean you will have to pay taxes on it. as of 2009, the irs does not require you to pay income tax on money forgiven due to a foreclosure.
another positive aspect of chapter 13 is that it helps you keep your home. but when you end up in foreclosure, you may lose the house and if the house doesn't sell for the total amount of the loan, the lender will file a deficiency judgment. this will be reported on your credit report and is likely to affect your credit.
there are tax issues involved with deficiencies. if the lender forgives the deficiency you will have to report the forgiven amount on your federal income taxes. however, even though you report that the deficiency was forgiven, does not mean you will have to pay taxes on it. as of 2009, the irs does not require you to pay income tax on money forgiven due to a foreclosure.
credit effects - foreclosure vs bankruptcy
once you file bankruptcy, the creditor/lender can no longer sue you to collect on a debt until the it has been discharged. once it has been discharged, you can rebuild your credit in 2 years. by the time you get served with the summons for foreclosure, your credit score has already taken a hit. by the time your lender takes possession of your home after the sheriff's sale, you will be facing at least another 5 years of rebuilding your credit.
bankruptcy stays on your report for 7 years, but it doesn't affect your credit rating after the initial hit. the best thing is, since you get an automatic stay from collection activities after you file, your credit score will freeze until the bankruptcy process is complete. so, it's better to have a 650 score with bankruptcy instead of a 480 score and a foreclosure.
bankruptcy is an option that will help you to avoid foreclosure. but when it comes to deciding on foreclosure vs bankruptcy, you have to decide which option will work better in your particular situation. so, the best thing to do is to contact your lender and start to negotiate a loan modification as soon as you realize you cannot afford your current mortgage payments any longer.
bankruptcy stays on your report for 7 years, but it doesn't affect your credit rating after the initial hit. the best thing is, since you get an automatic stay from collection activities after you file, your credit score will freeze until the bankruptcy process is complete. so, it's better to have a 650 score with bankruptcy instead of a 480 score and a foreclosure.
bankruptcy is an option that will help you to avoid foreclosure. but when it comes to deciding on foreclosure vs bankruptcy, you have to decide which option will work better in your particular situation. so, the best thing to do is to contact your lender and start to negotiate a loan modification as soon as you realize you cannot afford your current mortgage payments any longer.
related forum discussions
Hi glennsb,
A mortgage audit prior to getting a loan modified isn't a bad option. The mortgage audit experts will review your mortgage documents, look for any common violation of federal and state statutes. They can expose non-disclosure violations, accounting error or frauds of any other kind. Once you are aware of these facts, you can negotiate with the lender in a better way. Thus going for a mortgage audit isn't a bad option, provided you afford its costs.
A mortgage audit prior to getting a loan modified isn't a bad option. The mortgage audit experts will review your mortgage documents, look for any common violation of federal and state statutes. They can expose non-disclosure violations, accounting error or frauds of any other kind. Once you are aware of these facts, you can negotiate with the lender in a better way. Thus going for a mortgage audit isn't a bad option, provided you afford its costs.
I have 2 mortgages on my home, one is for 80% of the selling price and the other is a 20% loan. I've heard that a bankruptcy attorney can possibly rid you of the 20% loan and avoid losing your house as long as you intend to stay there and make the payments to the lender holding the 80% loan. How true is this and how hard is it to accomplish?
hi
i think you can get rid of the second mortgage if you continue making payments to the primary mortgage under chapter 13 bankruptcy. if the value of your house has gone down below the first mortgage value, then the second mortgage would no longer be secured by the property. in that case, it can be considered as undersecured and thus you can get rid of it.
but you should consult a bankruptcy attorney before you take any decision as he can guide you the best regarding this.
i think you can get rid of the second mortgage if you continue making payments to the primary mortgage under chapter 13 bankruptcy. if the value of your house has gone down below the first mortgage value, then the second mortgage would no longer be secured by the property. in that case, it can be considered as undersecured and thus you can get rid of it.
but you should consult a bankruptcy attorney before you take any decision as he can guide you the best regarding this.
I filed ch 13 10/08 - The mortgage co came back after it was filed (file on thier origional 'forclosure numbers which included attorney fees and all else) and are now saying I owe another 10K - they have filed to have the case thrown out but to date it has been continued (approx 12 months) I have paid the mortgage (PIT) and my trustee pmts right along - when getting my year end statement for tax purposes - the money I have paid has not been applied correctly. My base mortgage 1s 1341.69 w/ escrow of 524.00 - I have a 5.55% rate on 220000.00 yet they showed 16,487.00 in interest profits on my mortgage and only 4757.00 paid on my escrow. I am scared and confused about what they are doing and my attorny is actually confused and at the end of his rope in fighting for me. He is actually telling me I should think about giving up and asking for a modification...Given all this information, what is your take on my situation...Thank you so much and God Bless..ellen
hi ellen,
have you been discharged from chapter 13 bankruptcy? if you have been, then a modification will not be required as you will be given a alternative repayment plan. you will have to make payments according to the plan to keep your house. as far as the year end tax statement is concerned, you need to get it reviewed by a tax advisor as he is the best person to give you any suggestions on this.
thanks,
jerry
have you been discharged from chapter 13 bankruptcy? if you have been, then a modification will not be required as you will be given a alternative repayment plan. you will have to make payments according to the plan to keep your house. as far as the year end tax statement is concerned, you need to get it reviewed by a tax advisor as he is the best person to give you any suggestions on this.
thanks,
jerry
Actually I had the year wrong I filed 10/07 so I have been in this chapter 13 for almost a year and a half and the mortgage co keeps making me come back to dispute the origional amount filed under the chapter 13 - the court has continued it several times. Why would the mortgage company show me only paying 4757.00 to escrow when I have a fixed rate and I paid 6699.72 over the base mortgage amount (that was to be put in escrow for RE taxes) they show a huge negitive number in my escrow account. They will not talk to me as I am in Chapter 13 and my lawyer says its up to me to figure it out. Who can I go to for help? IAfter paying the chapter 13 (452.00 monthly for the last 16 months) and 1900.00 every month forr base mortgage and tax escrow (escrow which they are not appling) Single Mom w/ 2 kids ready to snap!!!! Thanks Jerry - May God shine on you and all the help you give.
Hi ellen,
As a borrower you have the right to ask the lender why they are showing only 4757.00 paid to escrow when you actually paid more than that. The lender is legally bound to give you the answer. If you are in bankruptcy, you are represented by your lawyer and he should ask them to give him an explanation to this.
As a borrower you have the right to ask the lender why they are showing only 4757.00 paid to escrow when you actually paid more than that. The lender is legally bound to give you the answer. If you are in bankruptcy, you are represented by your lawyer and he should ask them to give him an explanation to this.
I purchase land and built a home to care for my elderly parents and myself, which is now completed. I was planning on selling my current home during this process. Since that time the bottom has fallen out of the market and I cannot sell or rent the house I live in now. My question is what can I do because I cannot afford two mortgages. forclosure/ bankruptcy?? My current house has a first and second but has lost value and cannot cover the second in sale.
I filed chapter 7 and now they are talking about passing a law that the judges can modify your home loan if you file chapter 13. I am looking at filing that if my bank wont modify my loan. They told me they would then said file chapter 7 and they would do it now I am having problems with them still. Any suggestions? I live in minnesota.. :D
my mother is disable -because she cant remember anything and my step father is also disable .They have a rental property they no longer can afford up keep or taxes paid. they want to let it go to foreclosure. To refiance they need more income than social security .The property is standing empty. Is foreclosure the best answer or what should they do?
Nothing is behind for now .How will this affect their credit in the future?
Nothing is behind for now .How will this affect their credit in the future?
hi!
welcome to forums!
to atdtrt,
you can speak to the lender about deed in lieu if you are facing hardship in paying off the mortgage. however, lenders would accept a deed in lieu request only if you are delinquent on your mortgage payments. but, you will be liable for the second mortgage after the deed in lieu. if you don't pay off the second mortgage dues, the second lender may charge off the mortgage.
to stevev,
yes, the house has approved a bill which will help the bankruptcy judges to modify your home loan if you have filed chapter 13 bankruptcy. a chapter 7 bankruptcy can be converted to chapter 13. you can speak to bankruptcy attorney and he tell you what you need to do.
to jeannie,
a foreclosure will badly affect their credit score. it would lower their credit scores by 250 points. moreover, it would remain on their credit report for 7 years. i would suggest them to rent out the property. from the rental income, they would be able to pay off the mortgage dues.
sussane
welcome to forums!
to atdtrt,
you can speak to the lender about deed in lieu if you are facing hardship in paying off the mortgage. however, lenders would accept a deed in lieu request only if you are delinquent on your mortgage payments. but, you will be liable for the second mortgage after the deed in lieu. if you don't pay off the second mortgage dues, the second lender may charge off the mortgage.
to stevev,
yes, the house has approved a bill which will help the bankruptcy judges to modify your home loan if you have filed chapter 13 bankruptcy. a chapter 7 bankruptcy can be converted to chapter 13. you can speak to bankruptcy attorney and he tell you what you need to do.
to jeannie,
a foreclosure will badly affect their credit score. it would lower their credit scores by 250 points. moreover, it would remain on their credit report for 7 years. i would suggest them to rent out the property. from the rental income, they would be able to pay off the mortgage dues.
sussane
Paid 245K, 200 on first 45 on second 4 1/2 years ago. ARM adjusted on 1st, modified 1st to get fixed(both are fixed now), I was behind so they lumped the past payments to the remodified loan. Now I owe total of 260, house is worth 158, neighborhood is becoming ghetto, scared for safety of family and quality of schools. An oppotunity has arisen to rent a house through friend for what I pay on my first only, bigger, best school district in state, close enough to work to ride bike! Ok, so if my house is upside down and I need to get out of it, do I go for foreclosure, or bankruptcy? I know a short sell won't happen right now with the market in my neighborhood. Help, we have 2 kids and one more on the way in Setpember. We are current on our loan, and can afford it, barely. I checked and I pass the means test.
hi reno,
rather than going for a bankruptcy or foreclosure, i would suggest you to speak to the lender about a deed in lieu of foreclosure. however, you should note that a lender would accept your request only if you are delinquent in your payments.
you can write a hardship letter and request for a deed in lieu. the lender would judge your financial situation and then accept your request.
rather than going for a bankruptcy or foreclosure, i would suggest you to speak to the lender about a deed in lieu of foreclosure. however, you should note that a lender would accept your request only if you are delinquent in your payments.
you can write a hardship letter and request for a deed in lieu. the lender would judge your financial situation and then accept your request.
Can i file chapter 13 and let them take my house but keep my car and other items?
Idont want to keep my house and dont know if that is an option or if i have to keep it as well
Idont want to keep my house and dont know if that is an option or if i have to keep it as well
can i get a loan to buy a house even if i have filed charter 7