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Chapter 7 Bankruptcy and Your Second Mortgage

You filed a Chapter 7 Bankruptcy and have received your discharge. Among the debts included in your Chapter 7 Petition was your first and second mortgage. You reaffirmed your first mortgage (you elected to remain financially liable for your first mortgage) because you wanted to keep your home, but did not reaffirm your second mortgage. Therefore, you are no longer financially liable for your second mortgage. This seems like fantastic news! You get to keep your home, but no longer have to pay your second mortgage. Right? Unfortunately, this is not the case.

Although you no longer have to pay your second mortgage because you are no longer financially liable for the debt, your second mortgage still has a lien on your home. When you received your first and second mortgage, they each placed a lien on your home in order to secure their interest in your home. These liens allow each mortgage to foreclose on the home in the event you default on your payments. Unfortunately, the bankruptcy only removed your financial liability for your second mortgage. It did not remove the lien the second mortgage placed on your home. Consequently, your second mortgage maintains the right to foreclose on your home if you default on your payments.

So what do you do? You must payoff or settle your second mortgage before your second mortgage forecloses on your home or before you sell your home, whichever comes first. However, when you need to settle your second mortgage largely depends on how much your home is currently worth and how much you owe on your first mortgage. If your second mortgage chooses to foreclose on your home, then your second mortgage must payoff your first mortgage in order to hold the home free and clear. In other words, if your home is only worth $200,000, but you owe $250,000 on your first mortgage, then your second mortgage is not likely to foreclose at the current time because they would have to pay your first mortgage $50,000 more than what the house could be sold for. If you are currently in this situation you have the luxury of not having to try settling your second mortgage immediately. You can take time to save as much money as possible in order to try to settle your second mortgage for a lower amount in one lump some. You also have the option of simply continuing to make your normal monthly payments if you are current on your payments. Regardless of what you decide to do today, it is important to know that if and/or when you decide to sell your home, your second mortgage will have to be settled in order to complete the transaction.

If you are considering selling your home and your second mortgage has still not been settled, you have a few options. If the total amount owed on your first and second mortgage is equal to or greater than the value of your home, then you would complete a normal/traditional sale of the home and pay off both mortgages in full with the transaction. If the value of the home is only enough to payoff your first mortgage, then you will either need to bring the difference of what you owe on the second mortgage to the closing table or you will need to negotiate a settlement with your second mortgage.

Regardless of which situation you find yourself in, it is important to consult with an experienced bankruptcy and real estate attorney in order to resolve the issue of your second mortgage still being attached to your real property. Contact the Law Office of David M. Goldman, PLLC today for more information at (904) 685-1200.



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