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Can a 2nd mortgage, that was not reaffirmed with Chpt 7 bankruptcy, foreclose on our home if we are current on our 1st mortgage?

Hoisington, KS |

We filed in 2009, the 1st and 2nd mortgages were not reaffirmed. Our home value, according to county appraisal is $105,000. Our 1st mortgage is right under $80,000 and our 2nd is $42,000. However, if we sold our home, it is very unlikely that we would get more than $80,000. We are current on our 1st mortgage, 2nd is behind 5 months and are threatening foreclosure. Can they foreclose without getting the 1st to do it as well? What are our options?

I thank all of you for responding! The letter I received says the property may be referred to foreclosure after 14 days and asks me to call to see if there are any options to avoid it from happening. I've already tried a modification with them a year ago and they denied us. My income has since gone down so should I call and try to work something out? I've read it's best to just ignore them, see if they will indeed refer it to foreclosure. If I wait and they do send to foreclosure, then there isn't anything I can do at that point, is there? Thank you again for any responses!

Attorney Answers 3

Posted

Yes, they can, but it is unlikely they will. Their lien survived your bankruptcy, although by not reaffirming the debt your discharge means you are not personally liable on the debt. If he second forecloses, it would lead to a sheriff's sale, where the first mortgage holder will be bidding the full amount owed to them. The second would have to bid higher, pay off the first in full with hard cold cash, and then try to sell the house for at least more than the first mortgage bid. Foreclosed homes tend to sell for 60-80% of fair market value. So, yes they can foreclose, but they might be bluffing, which in turn may be fair debt collection act violation.

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3 comments

Carl H Starrett II

Carl H Starrett II

Posted

Does Kansas have a version of the FDCPA that allows debtors to pursue claims against original creditors?

William P. Turner

William P. Turner

Posted

No, but most mortgage servicers are debt collectors. Certainly if Capital One is threatening foreclosure on Capital One's 2nd mortgage, probably not a fdcpa violation.

Asker

Posted

Thank you for your response! I have additional information above, could you take a look and let me know your thoughts?

Posted

Your options include, to realize this is likely a collection attempt, without a real intent to proceed by the second lien lender, as described by my colleague.

The existing county appraisal may be influencing this collection attempt, because the valuation indicates there is available equity towards liquidation of a portion of the second lien.
You may benefit from protesting the value of the property, to lower the valuation closer to what you believe it could be sold for.
This will likely remove any incentive to market the property by the second lien holder, unless they have secured a buyer already, in which event you may have to move, if foreclosed upon.

General legal advice is offered for educational purposes only. A consultation with a qualified attorney is required to determine specific legal advice as to your situation and applicable law. We are a debt relief agency and we help people file for relief under the bankruptcy laws.

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Posted

Although the 2nd mortgage can foreclose, there is no profit for them to do so. I would hope you can set money aside each month to try to settle this matter for a lump sum of cash. To accomplish this, I would obtain a certified appraisal supporting your claim of value. You may want to wait until the 2nd mortgage is sold to a debt collector before making an offer to settle. Hope this perspective helps!

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