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My husband and father are both borrowers on a mortgage, my

father has a credit card...
My husband and father are both borrowers on a mortgage, my father has a credit card debt of close to $15,000 that he can not pay and is almost 290 days delinquent. The credit card company said they are going to put a lien on the mortgage. If my father files banktrupcy after the lien is in place will it remove the lien, or what will happen to the mortgage?
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Answered in 5 minutes by:
2/4/2009
philip.simmons
Category: Bankruptcy Law
Satisfied Customers: 35,246
Verified
Is this property an investment property or a primary residence?
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Customer reply replied 8 years ago

The property is my husband and I's residence, but my father does not reside in the property.

 

Sorry one more...is dad on the deed?
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Customer reply replied 8 years ago

No problem, however I am not sure, how do I find that out?

Since this question has a strong bankruptcy component, I am goign to send to an expert in that area...just a moment you will hear back from a colleague
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Customer reply replied 8 years ago

Thank you very much!

JoeLawyer
JoeLawyer, Attorney
Category: Bankruptcy Law
Satisfied Customers: 767
Experience: Attorney in the practice of Bankruptcy Law since 1996
Verified
Hi Poe:

If your father's name is XXXXX XXXXX the deed to your property, or if you or your husband did not co-sign on your father's credit card, then the credit card company is likely bluffing since they can't randomly put a lien on someone else's home because of his debt.

If however your father's name is XXXXX XXXXX deed to your home, then if the credit card company sues him and gets a judgment, that judgment may attach as a judgment lien to your real estate.

Judgment liens (also called judicial liens) can be avoided in bankruptcy even after they have attached, as long as certain criteria are met pursuant to 11 U.S.C. 522 and as long as a motion to cancel the liens (called a Motion to Avoid Judicial Lien) is filed and granted during the bankruptcy case.

For a judgment lien to be wiped out in bankruptcy, the sum of the judgment lien, the other liens on the property, and the debtor's exemption must exceed the value of the property.

In Iowa, the exemptions one is allow to claim may be viewed by clicking here. Iowa also letsone use the federal supplemental exemptions, here. The Iowa homestead exemption says one can protect an unlimited amount of equity in one's home so long as the home does not exceed ½ acre in town or city, or 40 acres elsewhere.

However, if you father does not reside on the property, then it is unlikely he can claim it as his homestead and use the exemption, but you are required to have an attorney in Iowa make the determination of what exemptions can be used in any situation.

I suggest you see if your father can schedule a consultation with a bankruptcy attorney in your area to see if there is an exemption he can use to protect his interest in your real estate, and if so, if the sum of the judgment lien, all other liens on the property, and his exemption exceed the value of the real estate so the judgment lien can be wiped out.

If you are uncertain, you may want to go to the county recorder's office and see whose names are XXXXX XXXXX deed to your home - this information would be very helpful to the attorney.

I hope this helps and a positive feedback is always appreciated if this was useful to you.

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.
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JoeLawyer, Attorney
Category: Bankruptcy Law
Satisfied Customers: 767
Experience: Attorney in the practice of Bankruptcy Law since 1996
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