Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
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Question: “Question: What happens to the building, ,which the LLC owns, and the mortgage Josh is solely responsible for? What do I need to do to enforce Josh's guarantee to me when the bank attempts to collect from me on the LOC after Josh's bankruptcy filing?”
Answer: Assuming the mortgage is included in Josh’s bankruptcy (it doesn’t have to be), then the lender will likely foreclose on the property. It doesn’t matter that the LLC owns the property since the lender’s security interest is still valid. Unfortunately, there is nothing you can do to collect from Josh if he includes your debt in his bankruptcy. It would be illegal to attempt to collect once the bankruptcy is filed (even a lawsuit is precluded). And if your debt is included in the bankruptcy, then a lawsuit would be precluded after Josh is discharged since the bankruptcy discharge acts as a permanent injunction on collecting the debt. I wish I had better news.
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Question: “I gather from your response that Josh can exclude any debt he wishes from the bankruptcy?”
Answer: To an extent. Josh may repay any debt he wishes. However, he may only sign a “reaffirmation agreement,” which keeps him legally liable, if doing so is in his best interests and is not overly burdensome. People generally reaffirm their debts when they want to keep the collateral that secures the debt. For example, if a debtor wants to keep his car, he may reaffirm his car loan. Similarly, Josh may want to reaffirm the mortgage if he wants to keep the property. As stated, however, keeping the debt cannot be overly burdensome since that affects the “fresh start” that bankruptcy is designed to provide.
Hi again. Glad to help.
Question: “When the building is sold at foreclosure, what is the order of disbursements?”
Answer: The lender with the first mortgage will be paid first. If there is a second mortgage, that will be paid second, and if there is a third…you get the picture. After the lienholders are paid, and if there are any funds left over, then the money will be disbursed to the foreclosed owners of the property (i.e. the LLC).
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