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cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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I am in the State of Florida, USA. I am contemplating bankruptcy

Resolved Question:

I am in the State of Florida, USA. I am contemplating bankruptcy after a divorce. We have two loans that are held jointly: one car loan and an unsecured water softener loan. In the decree I was given the house. I am on the deed but the ,mortgage is in her name. I am making the payments. So my question is:1. if I file bankruptcy will they go after her for the balance? Can she just continue to make payments on the existing loans? 2. Since the decree states that I get the house, does she have any leg to stand on to try to get the house from me by going back to divorce court after I file bankruptcy?3. do i need to reaffirm the mortgage even though I'm not on the loan (I am on the deed)I know these area lot of questions ive been unsuccessful in getting straight answers from local lawyers. I need help, please.
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 5 years ago.

Hi JACustomer,
Given the information you provided -
1) Your Bankruptcy filing will not affect her mortgage. In other words, the mortgage cannot "call in" the mortgage if you file a Bankruptcy.
2) Your Bankruptcy filing will not create grounds for changing the divorce decree or property distribution.
3) You cannot re-affirm a mortgage that is not in your name.


I think this is what you wanted to know. If not, please let me know.

Thank you!

Customer: replied 5 years ago.
The only part I am unclear on is if I have my responsibility discharged in bankruptcy, will creditors go after her? It's a credit union loan if that makes any difference. My concern is that if they go after her, I'd be in violation of the decree.
Expert:  cfortunato replied 5 years ago.

When you said the mortgage was in her name, I assumed it was not in your name.

Is the mortgage in your name also?

Customer: replied 5 years ago.
No it's ( the mortgage) is in her name..... But the other loans are joint
Expert:  cfortunato replied 5 years ago.
Last question:
Per the terms of the divorce decree, are you supposed to pay the mortgage money to your ex-wife or directly to the mortgage company?
Customer: replied 5 years ago.
Mortgage company
Expert:  cfortunato replied 5 years ago.

Your Bankruptcy filing will not affect the mortgage because it is not in your name. In fact, there is no reason for the mortgage company to know you filed, as the mortgage company would not be included as a creditor on your Bankruptcy paperwork.

You have no responsibility to the mortgage company, so there is nothing to discharge.

Additionally, if you no longer want to pay the mortgage, your obligation to pay - per your divorce decree - can also be discharged. This means you would not be in violation of the divorce decree.

What you described is a common scenario. Your ex-wife's attorney should have set it up so that you had to pay your ex-wife directly. If this had been done - and many divorce attorneys do not know enough about Bankrutpcy Law to properly protect their clients - your obligation to pay the mortgage would not have been dischargeable. Bankruptcy Stat. 523(a)(15).

(Of course, if you do stop paying the mortgage, the house will be subject to foreclosure.)

Customer: replied 5 years ago.
Thank you I'm going to send you some extra $ for being so helpful. One last clarification. If I discharge the joint car loan and unsecured loans, can the creditors go after her?
Expert:  cfortunato replied 5 years ago.
The joint debt creditors can go after your ex-wife if you stop paying those debts - whether or not you file a Bankruptcy.
In other words, it is not the Bankruptcy filing that allows them to go after her - it is the fact that the debts are not being paid.
cfortunato and other Bankruptcy Law Specialists are ready to help you
Customer: replied 5 years ago.
Ah I see.