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Elizabeth Prentice
Elizabeth Prentice, Attorney
Category: Bankruptcy Law
Satisfied Customers: 170
Experience:  Managing Attorney for one of the largest consumer bankruptcy firms in America.
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We have a house that is up for foreclosure, we have been advised

Customer Question

We have a house that is up for foreclosure, we have been advised to file for chapter 13 to keep the property. The property is jointly owned by husband and wife. Loan is exclusively on wife's name. We will like to wipe out second mortgage on the house but we are told that both husband and wife will have to file for chapter 13. Can this be done without husband filing for chapter 13?
Thanks
Submitted: 10 months ago.
Category: Bankruptcy Law
Expert:  Elizabeth Prentice replied 10 months ago.
I am a bankruptcy attorney and I would be happy to assist you. Before I answer, can you tell me whose name is XXXXX XXXXX first and whose name is XXXXX XXXXX second? Are they both only in the wife's name?
Customer: replied 10 months ago.

My wife's name is XXXXX XXXXX the 1st and 2nd mortgage. This is for a primary residence. I am on the deed of trust.

Expert:  Elizabeth Prentice replied 10 months ago.

Thank you for the additional information! I just researched the issue for you and apparently the law changed in 2011. See, Alvarez v. HSBC Bank USA, N.A, B.R. , 2011 WL(NNN) NNN-NNNN(D. Md. Dec. 28, 2011). More case law in Maryland followed in 2012 supporting this position in the bankruptcy courts. Here is the link: http://www.msba.org/sec_comm/sections/consumerbankruptcy/docs/2012AMMaterials/D26.pdf

 

According to the above cases, in order for the 2nd lien to be stripped off the house, if both people are on the deed, both are required to file bankruptcy to strip the lien. Even if the mortgages are in only her name. Therefore, if you wish to use bankruptcy to stop the foreclosure, you will be both need to file as soon as possible. You should contact a bankruptcy attorney in your area for a consultation to begin the process as soon as possible.

 

I hope my answer has assisted you and that you will provide me a positive rating!

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