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Ray
Ray, Lawyer
Category: Bankruptcy Law
Satisfied Customers: 37013
Experience:  30 years in civil, probate, real estate, elder law
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Question /Bankruptcy Lawyers: I am about to be served a

Customer Question

Question for Foreclosure/Bankruptcy Lawyers: I am about to be served a foreclosure notice for my primary residence Florida home. This is the 2nd time. A loan mod was taken and the trial period completed but now I am unable to make the payments and it will go to foreclosure. I have received different advice from different lawyers. Lawyer (A) stated that I would be able to file a Chapter 7 if in fact the bank comes after me with a judgment deficiency, which they are known to do. If a deficiency judgment is filed, and it sticks, ultimately I can file CH7 Bankruptcy to discharge it. While lawyer (B) says that I do not meet the eligibility for a Chapter 7 because I gross $78,000 per year. I’m assuming that with the Means test I can get under the $43,000 to be eligible for a chapter 7 but am unsure. Lawyer (B) stated that I should file a CH13 now and not wait for the foreclosure to continue as if they do file a deficiency judgment it is considered unsecured debt and the CH13 I will have to eventually file anyways will include that deficiency judgment thereby increasing my monthly repayment under the CH13. I have zero debt except for about 10,000 in student loans. I have no mutual funds, no other properties, no assets outside of retirement accounts. I have always paid all my debts (prior 760 credit) except for this mortgage, which is underwater still by approximately 30k. I have not been performing on it for the last 4 months. I prefer to short sell the property but prior attempts years ago were denied by the bank with a 10-20k difference in purchase price from market value. If short selling is denied I’d like to maximize my time in the home and at all costs avoid a deficiency judgment. I’d prefer to avoid bankruptcy but would much prefer a CH 7 to a CH13. Using a CH13 solely for a deficiency judgment may not be worth it?
Submitted: 5 months ago.
Category: Bankruptcy Law
Expert:  Ray replied 5 months ago.

Hi and welcome to JA. Ray here to help you today.

Let's go through these.

Your first step is to ask lender here for a deed in lieu.Since you have been unsuccessful with short sale thats the best thing you can do as a first step.Deed in lieu means you deed it back and they do not pursue deficiency.

Lawyer (A) stated that I would be able to file a Chapter 7 if in fact the bank comes after me with a judgment deficiency, which they are known to do. If a deficiency judgment is filed, and it sticks, ultimately I can file CH7 Bankruptcy to discharge it.

All Florida foreclosures are judicial which means there is a deficiency judgment if the house sells for less than you owe.Thats an automatic here.

While lawyer (B) says that I do not meet the eligibility for a Chapter 7 because I gross $78,000 per year. I’m assuming that with the Means test I can get under the $43,000 to be eligible for a chapter 7 but am unsure.

Thats good information you would have to get your income down to qualify for a Chapter 7 under the means test.

Lawyer (B) stated that I should file a CH13 now and not wait for the foreclosure to continue as if they do file a deficiency judgment it is considered unsecured debt and the CH13 I will have to eventually file anyways will include that deficiency judgment thereby increasing my monthly repayment under the CH13. I have zero debt except for about 10,000 in student loans. I have no mutual funds, no other properties, no assets outside of retirement accounts.

Again this is good information, here unless you can get your income down to under the means test all you can do is file Chapter 13 here now.

I would try the deed in lieu here first then Chapter 13 is your next option.

I appreciate the chance to help you today.Thanks again.