Effects of Foreclosure and Chapter 7
When should I file for Chapter 7 if my vacation/investment property is about to be foreclosed upon?
I mortgaged a home for $440K as primary residence on LI, NY about five years ago. With respect to the economy it is currently valued about $100k less. About three years ago we mortgaged a condo in Orlando for $220K which is now appraising for $50K as per the lender who did their own appraisal. It is virtually impossible to rent, HOA dues have escalated, and last year the condo association went into receivership. My financial status changed when I lost my higher paying job and now make much less than I did before. Although my wife and I can still afford our primary, we had to stop paying mortgage on the condo. We approached the lender with the details and were advised to ask for a deed-in-lieu as we continue seeking a short-sale with no luck. The deed-in-lieu has been under review for months and recently we received a summons of foreclosure. The lender indicates there is still time for the DIL to work or to find a short-sale yet the foreclosure seems imminent since we did receive a summons of foreclosure notice. As far as assets, we have very little savings, we have two cars with high mileage that have one year left to pay on each so no real residual values, we have about $20k combined credit card debt, no other property or valuables. The lender indicated that Fannie Mae does not typically seek for the deficiency although they may file a 1099. The second loan (we took a first and second loan on the condo) was being sent for charge off probably to a collection agency. I understand the impact of foreclosure and bankruptcy will have on our credit but we don't plan on any more cards, cars or mortgages in the near future. My questions are: (1) would a chapter 7 bankruptcy protect us from the 1099 and the collection of the second loan without jeopardizing our primary house and two cars? (2) With respect to timing, would the filing of the bankruptcy be effective after we get served or does it need to be in place before the foreclosure and the 1099? In other words, if we did file the bankruptcy now without knowing what details to include with it for this condo situation, will we still be protected? (3) Will a foreclosure on the condo adversely affect our primary lender, will they get notified of this? (4) what happens if there is an HOA lien or delinquent tax on the condo?
By
Mark Cappel
- Given the dire circumstances of your Orlando condominium -- namely the stunning drop in value and the non-existent rental market -- a deed in lieu of foreclosure will be a superior choice for you if you can complete it before the foreclosure.
If your Orlando property was your primary residence, the foreclosure you mentioned was halted, you completed a deed in lieu of foreclosure or short sale, and the mortgagor forgave the deficiency balance and sent you a 1099-C for the forgiven amount, you would not need to file bankruptcy for the debt income. See the Bills.com document Mortgage Forgiveness Debt Relief Act for details if that was your circumstance.
However, because the Mortgage Forgiveness Debt Relief Act applies to primary residences and not investment property or second homes, then if you complete a deed in lieu of foreclosure or short sale, and receive a 1099-C, then the forgiven amount is considered income, and is subject to income taxes. If at the time of the forgiveness the debtor is insolvent, then the debt income is canceled. See the Bills.com resource Cancellation of Debt Income for details.
Given the dire circumstances of your Orlando condominium — namely the stunning drop in value and the non-existent rental market — a deed in lieu of foreclosure will be a superior choice for you if you can complete it before the foreclosure. See Deed In Lieu Of Foreclosure vs. Short Sale for a comparison of these two options.
Foreclosure vs. deed in lieu of foreclosure
Contact a human at the organization within your mortgagee that initiated or is responsible for the foreclosure. Send that person copies of the documents you have regarding the deed in lieu of foreclosure so that they are aware of your efforts. It does not surprise me that one organization within your mortgagor would initiate a foreclosure while another organization is simultaneously negotiating and considering a deed in lieu of foreclosure or short sale. Mortgage servicers are overwhelmed by changes in the mortgage field and are not operating efficiently or effectively. See the Bills.com resource Bank of America Foreclosure & Mortgage Modification for a recent answer I sent to a fellow reader that was on this point.
Foreclosure vs. bankruptcy
There are two basic types of bankruptcy available to consumers — Chapter 7 and Chapter 13.
A Chapter 7 bankruptcy, often called a “liquidation bankruptcy,” completely discharges many unsecured debts if you qualify to file. Most consumers who do not have significant assets or income choose to file for protection under Chapter 7 bankruptcy. Chapter 7 bankruptcy generally does not stop foreclosure action against consumers. The automatic stay ordered by the court when the case is filed postpones a mortgage company from proceeding with foreclosure. Since secured debts, such as mortgages, are not usually dischargeable in bankruptcy, the court or the trustee will usually grant relief from the stay to mortgage company to proceed with foreclosure if the homeowner’s mortgage remains delinquent.
If the debtor stays current in their mortgage payments (here, your property in New York), and files a statement of intention regarding the property to retain it, the debtor can retain the property. This is called a debt reaffirmation. This is an agreement in which the debtor agrees to repay a debt even if it was or could have been discharged (i.e., forgiven) in the the bankruptcy proceeding. A debt reaffirmation agreement is legal if it is voluntary, made with or without the advice of an attorney, filed with the bankruptcy court, and approved in certain circumstances by the bankruptcy court.
A Chapter 7 bankruptcy would discharge any deficiency balance resulting from a short sale or deed in lieu of foreclosure. Alternatively if there is no short sale or deed in lie of foreclosure, a Chapter 7 would wipe-out any liability for the mortgage or foreclosure. As mentioned, when filing a Chapter 7, the debtor must file a statement of intention regarding the property. There are two options: Retain or Surrender. If the debtor selects surrender he or she must quit the property. Liability for the deficiency balance following the foreclosure and REO or auction would be discharged.
Another option is Chapter 13 bankruptcy. This is also called a “wage-earners bankruptcy,” and is designed for those debtors who own significant assets and have a regular income, but who cannot afford their monthly debt obligations. In a Chapter 13, the debtor makes payments to the bankruptcy court for a certain period, usually three to five years, until all of the petitioner’s debts are paid. If the consumer cannot afford to repay all of his debts within the time period specified by his Chapter 13 plan, any debts remaining after all payments are made are usually discharged, meaning the debt is “forgiven.”
Both Chapters 7 and 13 create an automatic stay when filed, meaning that the debtorÂ’s creditors must cease all collection activity until the bankruptcy case is either finalized or dismissed, unless the stay is lifted by the court.
Recommendation
Consult with a bankruptcy attorney in your state of residence regarding your questions. Although you provided some details about your situation, there may be facts that you did not disclose that may be significant to your main question, namely, "When should I file for bankruptcy?"
Regarding your vehicles, each state has exemptions for debtors to retain vehicles up to a certain value. If the vehicles are as old as you suggest, then you will have no issue retaining them.
I do not see any significant difference between filing Chapter 7 or 13 before and after foreclosure given your stated desire to quit the Florida vacation/investment property. If you wanted to retain the property, the obvious answer would be to file before the foreclosure is recorded.
I do not see the foreclosure affecting your New York residence given the New York homestead exemption and if you remain current in your mortgage payments. Regarding the HOA dues, those should be discharged in the bankruptcy. Regarding taxes, some taxes may be discharged and others may not — consult with your attorney about this issue.
I hope this information helps you Find. Learn & Save.
Best,
Bill
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BABill,Aug, 2010You are making several assumptions that may not be correct. First, there is no requirement that a mortgagee forgive or not forgive a deficiency balance, if your state does not have an anti-deficiency rule. My statement is true for short sales, deeds in lieu of foreclosure, or foreclosure. Some mortgagees as a matter of policy will pursue deficiency balances, others will not, and a third group will do so on a case-by-case basis. Second, I challenge your assumption that mortgages cannot be discharged in Chapter 7 bankruptcy. It is true that mortgage terms cannot be altered in bankruptcy, which I think Congress should allow as an incentive for mortgagees to negotiate mortgage modifications with homeowners in good faith. Finally, the answer to your question is found in your motivations and intentions. Do you want to stay in the property? If so, file before foreclosure. If not, then I do not see a significant difference. Consult with an attorney in your state who has experience in bankruptcy. He or she will be able to review your situation in more detail, and give you more precise advice.
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MRMaria,Aug, 2010Investment Properties - Foreclosure/Bankruptcy: I find difficult to decide what is best. In a short-Sale/Deed-in-Lieu, the lender will do one of two things: file a 1099 which will originate federal income tax on the forgiven amount of the loan. If the deficiency is not forgiven, the lender has up to 5 years to file a deficiency judgment against me. Since most mortgages are not dischargable in bankruptcy, if I wait to file for bankruptcy until the property has been foreclosed, the lender will file a 1099 and there will be federal income tax on the forgiven part of the loan. Since most mortgages are NOT dischargable in bankruptcy, which is the best moment to file bankruptcy so as to protect me from both possibilities, the lender's 1099 and/or the possible deficiency judgment, to file for it before or after the foreclosure?
