Chapter 13 Bankruptcy offers an important, and often unknown, option to consumers who have residential real estate mortgages. Namely, removing a junior lien holder or "2nd" from your debt. Since the value of real estate has decreased, a common complaint I hear is, "I cannot believe I am paying more than my house is actually worth."
If you purchased a home in the past three to four years and financed with 80/20 mortgages, or if you refinanced your home and took out a second mortgage, chances are you can completely remove that second mortgage and other junior liens from your home.
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Imagine...file a chapter 13 Bankruptcy to eliminate all your credit card debt, reduce your car payments, cure the back payments on your first mortgage and now, entirely remove your second mortgage.
In addition, if your house value bounces back, that equity is yours to keep.
It is important to realize that the removal of a 2nd mortgage is available in a Chapter 13 bankruptcy only. The ideal candidate for this process has a 2nd mortgage on a home that is no longer appraised at or above the amount of the 1st mortgage. It is necessary to obtain comps for the property and an appraisal to establish your the fair market value of the home.
If the fair market value works, a motion to get court approval will need to be filed. The mortgage company may oppose this motion. This will then require an evidentiary hearing and perhaps an adversary complaint. If the court decides that the fair market value of the home is below what is owed on the first mortgage, the second mortgage is "stripped" from the home and the debt associated with the second mortgage is made an unsecured debt (essentially being treated like credit card debt). Typically, in a Chapter 13 bankruptcy, a small percentage of the unsecured debt is paid, if at all.
Once the motion is approved, you will need to make all plan payments (over a 3 to 5 year period) and obtain your discharge. Once the debts are discharged, the second mortgage is completely gone.
Under existing Bankruptcy laws, debtors are not able to force a first mortgage to modify the terms of the mortgage on loans for their primary residence. Many lenders who realize the alarming state of the economy are willing to negotiate a modification of their mortgage, allowing a debtor to lower their monthly payments. This is a relatively recent change for many lenders who had previously refused to accommodate such requests. Such a modification may drastically help a homeowner who wants to keep their home but who is suffering from a reduction in income and home value. This benefit is even more evident when used in conjunction with the removal of a second mortgage for debtors who have both a first and second mortgage.
Further, recent legislation was introduced in Congress in the first week of 2009 that would now allow Bankruptcy judges in Chapter 13 cases to modify first mortgages by:
-reducing the amount of the secured claim (i.e. lowering the balance on the mortgage/deed of trust that is secured by the home);
-changing the interest rate of the loan or modifying the adjustable feature of certain loans; and/or
-changing the term of the loan.
This bill, if enacted, would finally provide some relief to homeowners. In the past, the mortgage lenders have vehemently opposed such a change. However, this time may be different. News reports indicate Citigroup has already suggested that it would support this legislation with some minor revisions, one of which is to require that a homeowner first attempt to modify the loan directly with the lender(s) before the loan can be modified by a Bankruptcy judge.
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