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socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 37860
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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I was transferred to Georgia from Michigan for my job my 2

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I was transferred to Georgia from Michigan for my job my 2 sons have been living in my Michigan home and one has moved out leaving the house payment burden my remaining son. My son can not make the mortgage payment on his own and I have been helping out,by pulling money from my savings. I can not continue to do this and fear I will be facing foreclosure.My question is can Bank Of America Go after my 401 or saving in a bank as my house is still way underwater of appox. $40k. I have tried on 2 different occasion to get Bank Of America to modify my loan they have refused me both times. I am trying now to protect whatever I have left.

Under Georgia law, a debtor's property is exempt if retained in an ERISA-qualified retirement account, such as an employer 401(k) or IRA account. Regular savings, brokerage, investment, checking, or any ordinary bank accounts are all subject to seizure by a creditor to satisfy a deficiency judgment on an unpaid home mortgage balance.

The typical way out from this dilemma is to file for Chapter 7 or 13 bankruptcy, and wipe out the deficiency, and any other unpaid debts. Your 401(k) would remain safe.

If you can make direct contributions from savings into the 401(k), you might want to consider making them, because by doing so, you would protect those contributions which might ordinarily be subject to creditor seizure.

Most people tend to reject bankruptcy as an option without giving it any thought. While it may seem like a surrender of one's moral values, it is frequently the only way to get a fresh start on one's financial life, and it is nothing to be ashamed of.

Walt Disney, Abraham Lincoln, Milton Hersey (chocolatier), Henry Ford, Mark Twain (Samuel Clemens), and Donald Trump (four times) -- all filed bankruptcy, and came back in pretty good shape.

If you would like to contact a local bankruptcy attorney to discuss your options, and you need a referral link, please let me know and I will be happy to provide.

Hope this helps.
Customer: replied 3 years ago.

The home that is in question is located in Michigan I currently live in Georgia so does the same hold true? Also, would Bankruptcy come before or after foreclosure or instead of?

Thank you!

My answer was based upon the home being in Michigan and your currently living in Georgia, so yes, it holds true exactly as previously written.

As for the timing of bankruptcy, it is generally better to file before the foreclosure sale. You could use the threat of bankruptcy in an attempt to negotiate a settlement with the bank -- i.e., "If we cannot come to a reasonable resolution of this issue, such as a short sale approval and release of liability for any deficiency, or a deed in lieu of foreclosure with a similar release, then I will have no alternative other than to file for bankruptcy protection."

If the bank won't bite, then you bail out, and move on with your life.

Hope this helps.
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