Legal Question in Bankruptcy in California

Confused

Hi - i'm thinking of filling chapter7 for the second time and wondering if i can file my 2nd mortgage along with it without loosing my home. is this possible?


Asked on 6/23/09, 3:32 pm

4 Answers from Attorneys

Robert Mccoy Law Office Of Robert McCoy

Re: Confused

You cannot obtain a discharge in a Chapter 7 bankruptcy unless it has been more than 8 years since your last filing. You may, however strip a second mortgage and obtain a discharge in a Chapter 13 if it has been more than 4 years since you filed the Chapter 7.

You can discharge the second mortgage, but cannot strip it in a Chapter 7 bankruptcy. So, you would still be able to keep your home, but if the holder of the second mortgage ever decides to foreclose, you would then lose your home.

At lease this is true in San Bernardino and Riverside Counties.

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Answered on 6/23/09, 9:46 pm
Mark Markus Law Office of Mark J. Markus

Re: Confused

Not sure what you mean by "file with it". If you're asking whether the lien on your 2nd mortgage can be removed in a Chapter 7 case, the answer is no. The underlying debt, however, can be discharged.

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Answered on 6/23/09, 3:40 pm

Re: Confused

You can only strip off the second lien in a Chapter 13, not 7 (and only if the value of the house is less than the amount owed on the first mortgage)

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Answered on 6/23/09, 3:55 pm
David Gibbs The Gibbs Law Firm, APC

Re: Confused

To add to Attorneys Markus and Shem-Tov's answers, they are correct that you cannot strip the lien on your house in a chapter 7, and that you can in some circumstances in a chapter 13. My bigger question is when you say you are "thinking of filing chapter 7 for the second time" - when did you last file? You must have eight years between your second filing and your first discharge if you are going to receive a discharge in the second chapter 7. I would suggest that you need to consult with an attorney - many bankruptcy attorney provide a free initial consultation in bankruptcy matters. It would be worth your time to see if you even qualify.

*Due to the limitations of the LawGuru Forums, The Gibbs Law Firm, APC's (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided is general and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.

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Answered on 6/23/09, 5:44 pm


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