Bankruptcy Law Questions? Ask a Bankruptcy Lawyer.
Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for your question. I'll be glad to assist.
Generally, a cram down is only possible on jointly-owned property if both owners file bankruptcy in the same petition. This is so because the creditor has a right to seek payment from either of you for the debt, and if both owners don't seek a cram down of the mortgage loan, then the lender can't be prohibited from seeking payment from her.
Also, having her transfer her property interest to you would only deal with the title to the property - - not the loan. She would still be obligated to the lender under the note even if she signs her interest in the land away.
Also, "joint tenancy" and "tenancy by the entirety" are the same thing - - this means that whichever owner lives the longest is entitled to 100% ownership of the property. This type of ownership is an alternative to "tenants in common", which operates to transfer the owner's interest into his/her estate upon death - - and not to the joint owner.
I'll try to find you a reported case and post the citation below. In the meantime, I was able to find this Orlando Bankruptcy blog that says a cramdown can't be done on jointly owned property/jointly mortgaged property IF both don't file bankruptcy: http://www.bankruptcyorlando.com/2012/05/chapter-13-does-not-permit-one-spouse-filing-alone-to-cram-down-mortgage.html
In re Pierre, 468 B.R. 419, UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA, ORLANDO DIVISION468 B.R. 419 (2012):
This case says: "a Chapter 13 debtor may strip a lien pursuant to § 506 and § 1322(b)(2) of the Bankruptcy Code. The strip off or cramdown is only effective, however, upon the issuance of a Chapter 13 discharge, which only occurs when all payments are completed under a confirmed plan of reorganization, and only if each debtor has complied with the provisions of § 1325.
Would it help if she quitclaims me the property before I file?
Very helpful, thanks!