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20 Jan 2014

What Happens To My House if I File Chapter 7 Bankruptcy? Featured

This may be one of the most common questions I hear as a Colorado bankruptcy attorney, "Can I keep my house if I file Chapter 7?" But the answer isn't always so simple. In Colorado, keeping your home after Chapter 7 bankruptcy will depend on your answers to three questions. Do you really want to keep it? Do you have any equity in the home? And are you current on the payments?


Deciding whether you want to keep your house may be difficult, but if you owe more than it is worth it might not be an asset worth saving. Also, if your interest rate is too high or the house needs a lot of work it might be more than you can afford to keep. Some Colorado filers find they are better off letting it go in the bankruptcy and buying another home a few years down the road. The good news is that in Colorado, you can almost always keep your home if it makes financial sense to do so.

Secondly, the trustee in your bankruptcy case will want to know if you have any equity in the home. If the house is worth more than you paid for it, then you have equity. If you have equity, the trustee will determine if you have more equity than what is protected under the state's exemption statutes. These are the laws that determine what you get to keep in a bankruptcy. Unless you have exempt equity, the trustee is not going to come after your home. However if you have non-exempt equity there are some steps that can be taken to minimize it. This will be a topic for discussion with an experienced Chapter 7 bankruptcy lawyer.

Finally, if you are behind on your mortgage payments at the time of filing, your lender could either demand that you get caught up immediately or they could ask the court for permission to foreclose. This causes some risk and it might be better not to leave this decision up to the mortgager. When you speak with a bankruptcy attorney, find out if it makes more sense to get caught up before filing Chapter 7, or if a Chapter 13 bankruptcy makes more sense. Chapter 13 allows you to repay arrears on a mortgage over a three to five year period.

One of the benefits of filing for Chapter 7 bankruptcy in Colorado is how it wipes out all of your dischargeable debts. This will include not only credit cards and medical bills, but also the debt you still owe on your home and automobile. While you may no longer owe money on your home, keeping your home after bankruptcy will largely depend on you. Below are three common options for handling your home after a bankruptcy.

Reaffirm: This process allows the petitioner to request that the judge waive the discharge of a specific debt. With a mortgage or home-equity line of credit (HELOC), you agree to continue making payments on the house as agreed. As long as you continue to do this, the mortgagor cannot foreclose. However, if you become unable to pay, the lender can not only foreclose, they can sue you for the difference between what you owe on the home and what they sell it for at auction. One of the advantages to signing a reaffirmation agreement is it allows you to rebuild your credit score faster after bankruptcy.

Stay and Pay: This means you will continue paying the mortgage without a reaffirmation agreement. Essentially, this means you are paying a debt you no longer owe, but it keeps the lender from foreclosing because they are still receiving payments. Once you have paid the full amount that was owed before the bankruptcy, the lender signs the title over. This is a popular option because it even allows you to sell the property, but refinancing is impossible since there is no current debt left on the note. Along these same lines, if you were to go into foreclosure the lender cannot sue you for a deficiency.

Surrender: If you decide not to keep your home, or you don't feel that signing a reaffirmation agreement would be wise, you may simply hand the keys over to the lender and walk away. Chapter 7 bankruptcies free you from any associated debt with regard to your home, so there is no threat of the lender coming after you later on.

 

Stephen H. Swift

Managing Attorney
Law Office of Stephen H. Swift, P.C.

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