Legal Question in Bankruptcy in North Carolina

If I file Chapter 7 bankruptcy separately from my wife, can the creditor place a lien on the house that we own via tenancy by the entirities? We owe a joint debt on investment property that is going into foreclosure. If my debt is discharged through bankruptcy my wife will owe the debt by herself, and it is no longer a joint debt. We live in North Carolina.


Asked on 8/10/11, 6:02 am

1 Answer from Attorneys

Thomas Zimmerman Zimmerman Law Office

No. There are several reasons, some of which are unrelated to bankruptcy. You could grant a lien by signing a deed of trust, but I believe you refer to an involuntary lien such as would arise with a judgment on a debt. The judgment does not attach to your interest to real estate held by the entirety. The same is not true with join tenancy or even tenancy with surviorship. This is true without bankruptcy being in the mix. Once a bankruptcy is filed, no creditor can take judgment which would effect a lien on real estate owned by the debtor. Of course the non filing spouse could be sued but the entirety clause would prevent the lien from attaching. Technically, the debt remains a joint debt following discharge of one of you, it is just not collectable from you because the Discharge Order prevents any collection activities. It requires a release of you from the note to cause the spouse to owe the debt by herself. Of course the distinction is academic because the end result to your filing and discharge means the the creditor is now only limited to foreclosure and possible deficiency judgment against her alone. There are other limitations upon a creditor and many other possible factors that would lead you to action, including bankruptcy to "get your fiscal house in order" and you should consult a bankruptcy lawyer to go over your entire situation prior to allowing foreclosure or filing bankruptcy.

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Answered on 8/10/11, 6:24 am


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