Legal Question in Bankruptcy in California

can my mortgage be restructured by filling bankruptcy


Asked on 10/20/11, 9:55 am

3 Answers from Attorneys

Douglas A. Crowder Crowder Law Center

Yes and no, depending on what restructuring you want.

In a Chapter 13, you can pay off the arrears on the first mortgage over a period of 5 years, but you will have to make any future mortgage payments as they become due. For example, if you owe $10,000 in back payments, and the monthly payments are $1,000, and you file a Chapter 13 on June 15, then you can pay the $10,000 over a period of 5 years, but the next monthly payment of $1,000 must be paid on July 1.

Also, if you have a second mortgage that is totally unsecured, you can "strip" it in a Chapter 13, meaning paying it off at pennies on the dollar.

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Answered on 10/20/11, 10:42 am
Tony Carballo Carballo Law Offices

A first mortgage on your home cannot be restructured (assuming you mean that the amount owed can be reduced, the length of the loan changed or the interest rate lowered). If you are behind on payments then those arrears (back payments owed) can be paid in a Chapter 13 plan over up to five years to stop or prevent foreclosure. Second or third mortgages on you home can be eliminated completely (voided) if the value of your home is less than the total amount owed on the first mortgage. This applies to your home only. On investment real estate such as rental property you might own the first cannot be restructured because you would have to pay the entire amount in the plan and that is not generally possible in a maximum of five years unless the amount is so small that could be paid completely in the plan. Same situation generally applies to second and third mortgages on investment property in Chapter 13 cases. You need to have a consultation with a bankruptcy attorney because this area is very complex and a lot of variation on how the courts in different districts and the trustee in different divisions of the courts interpret the law and have local policy on what is acceptable and not in bad faith.

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Answered on 10/20/11, 11:48 am


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