How Chapter 7 Really Works When Surrendering Your Home

Giving Up Your Home in a Chapter 7 Bankruptcy Filing

If you are struggling to make your house payments, you might be able to file for Chapter 7, discharge some of your debts and keep your home. In the long term, though, that might not be in your best interests. The most effective way for you to get a fresh financial start may be to simply surrender your home as part of your bankruptcy filing. How do you do that and what are the consequences?

Surrendering your home in bankruptcy may make sense, but requires care and planning

When you took out a mortgage loan, you signed two papers. One was the Note, or “IOU” in which you promised to repay the loan. The second was a mortgage, in which you gave the lender your home as collateral. In a bankruptcy, your discharge eliminates your personal liability under the Note. However, the mortgage lien remains in place.

For many people, a home or other real estate is simply too expensive for them to keep. In these situations, a decision to let the real estate go to foreclosure may be the proper path to long term financial stability. However, many people just move out, and that can create many other problems. In other words, there is a right and a wrong way to “surrender” a home. Moving out too early can create other problems, including an inability to keep insurance in place to protect you from liability damage claims if someone or their property is injured or damaged. A vacant property is prone to vandalism. If there is a homeowners association or condo association in place, those fees need to be paid until the property is no longer in your name. Moving out too soon can actually make matters worse!

This is an area where individualized advice from an experienced attorney is essential. There are several useful articles and blog posts on our website. Check them out!

Contact Neuner & Ventura, LLP

Let us help you take back control of your life! We understand the stress, anxiety and confusion that can be associated with a potential bankruptcy filing. We offer a free initial consultation to every new potential bankruptcy client. (We do, however, reserve the right to charge a fee to review any work done by another attorney). For an appointment, call Neuner & Ventura at (856) 596-2828 or send us an e-mail. Evening and weekend appointments are available upon request

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An object lesson for creditors: Countrywide Home Loans hit with $85000.00 in legal fees for violation of the automatic stay

On February 22, 2012, Judge Kaplan in the US Bankruptcy Court for the District of New Jersey hit Countrywide with an $85,000.00 tax bill for attempting to collect prepetition mortgage escrow deficiencies from debtors in Chapter 13 bankruptcies. In re Rodriguez, case no. 07-24687. The decision highlights the importance for all creditors not to “shoot first and ask questions later”.  Doing so, as Countrywide learned, can be expensive.

In this case, Countrywide claimed it was entitled to add to the post-bankruptcy mortgage payments an amount to pay back pre-bankruptcy shortfalls in the debtor’s escrow account. The debtors claimed this was an unlawful attempt to collect a pre-petition debt, and that the deficiency amount should have been included instead in Countrywide’s claim which would be paid in the bankruptcy. The debtors originally claimed that Countrywide was violating the “automatic stay” that renders illegal any attempt after a bankruptcy is filed to collect a debt that pre-existed that filing. The question went all the way to the Third Circuit Court of Appeals which ruled that Countrywide was wrong.

Under section 362(k) of the Bankruptcy Code, an individual who suffers any actual injury from a wilful violation of the automatic stay may seek damages, punitive damages and counsel fees. A violation is wilful so long was the collection effort was intentional and made by someone who knew about the bankruptcy. The Third Circuit sent the case back to Judge Kaplan to determine whether Countrywide wilfully violated the automatic stay and what damages the debtors were entitled to.

Here Judge Kaplan found that Countrywide wilfully violated the automatic stay because it proceeded, without seeking permission from the bankruptcy court, to demand payment of escrow monies after receiving notice of the bankruptcy filing. He hit Countrywide with payment of all the resulting counsel fees incurred by the debtors as they fought the issue up to the Third Circuit. Since Countrywide chose to litigate the issues, Judge Kaplan found, they should not be faulted for defending their rights.

This case underscores  important lessons for any creditor receiving notice of a bankruptcy:

1. Get qualified legal advice right away;

2. Do not attempt to collect the debt except through the bankruptcy court process, without first seeking permission and authority to do so.  When in doubt, err on the side of caution.

Steven R. Neuner has over 29 years of experience helping creditors, trustees and debtors protect their rights in bankruptcy court. For more information about these and related topics, see our website at http://www.nv-njlaw.com.

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