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Can I file chapter 13 I files chapter 7 and was discharged Feb 2011

Tennille, GA |

The first mortgage was not reaffirmed. The second mortgage was reaffirmed. I am struggling with the payments my Income is ss and small pension only . I tried to negotiate a payoff with both mortgage companies but they are not willing to do anything. My apprised value is 81000 and I owe approximately 80000 I can get refinance but not for the full amount. I was looking at chapter 13 as a option??????????? Kenny

Attorney Answers 6


  1. Reaffirmation of debt is usually a bad idea. Reaffirmation of a second priority lien, while not reaffirming the first, is just crazy. It would be hard to imagine a situation in which that makes sense, or how it was approved. However, that is done, so now are the consequences. You can see a lawyer about a Chapter 13, but based on the few facts stated in your post it won't likely help as it does not lower the secured debt and payments or (presumably) get you out of other unsecured debt to focus on the house payments. You can't just walk away, as you could have done had you not reaffirmed. See a lawyer to review all the facts,


  2. Under the circumstances, chapter 13 is not a going to help you. Chapter 13 requires the regular monthly payment and it will not modify the payment amount. Sounds like your your 1st and 2nd mortgages are fully secured. If you wish to keep the property, you will have no choice but to keep up with the mortgage payments.

    Madhu Kalra Kalra Law Firm 23720 Arlington Avenue, Ste 5 Torrance, Ca 90501 (310) 325-9012


  3. Since you reaffirmed the second, which by now you know was a very bad idea, if the first mortgage company forecloses, the second will come after you for the full amount. You can file a chapter 13, but at this point you would not be eligible for a discharge, which means you would have to pay the second mortgage in full, or make all mortgage payments directly and pay what you are behind on the mortgages in the plan. If you wait until February of 2015, you could file a chapter 13 and discharge the debt after completing a plat of at least 3 years. Therefore, bankruptcy is not going to help you very much right now. This does not mean that you don't have other options. I would at least sit down with a bankruptcy lawyer and have them go over your current situation and see if you can develop some kind of plan for eventually getting out from under this debt.

    The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP hmgrmg@yahoo.com 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 gadebtlaw.com hicksmasseyandgardner.com serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation


  4. I agree with other counsel. Is it maybe possible for you to rent a room in your home to share/lower the expenses? Tough times call for tough measures.

    I am not YOUR lawyer. You should not rely on answers to questions as legal advice. For legal advice you should contact a law firm for a consultation. Tokarska Law Center 185 West F Street #100, San Diego, CA 92101 (619) 285-1992 www.sdbankrupt.com Tokarska Law Center is a Federal Debt Relief Agency representing individuals and businesses in filing for bankrutpcy protection under the U.S. Bankrutpcy Code.


  5. Sadly, as you know, you made a huge mistake. Mortgages should almost NEVER be reaffirmed, and the worst of the bad is reaffirming a second without the first.

    You could gamble and walk away from the house and hope neither mortgage company sues you, but there are no guarantees.

    While you can possibly file a new chapter 13, you can't get a discharge, so it likely is of minimal help now, although see a lawyer to look over the numbers. Potentially, if you can wait until 4 years from the previous chapter 7, you might then be eligible for a 13 that could discharge debts.

    I wish I had better answers, but some mistakes like reaffirming realty don't have good solutions.

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  6. not clear on what your desire is or complete circumstances.

    If you want to keep the property and are behind on payments with a foreclosure in process, then filing a chapter 13 will allow you to catch up on the arrears through the chapter 13 plan. However if you are actually seeking a discharge of any debt in the chapter 13 you are going to have to wait on your filing.

    Again I do not know if you are thinking of walking away from the debt. If that is your choice it can be a bit of a gamble but typically in the State of GA mortgage lenders do not file suit for deficiency. There are a few requirements that the mortgage co must meet, and perhaps this is why they typically do not seek deficiencies.

    To be eligible for a deficiency judgment, the lender must file a report of sale with the superior court of the county in which the land is located within 30 days after the nonjudicial foreclosure sale (Ga. Code Ann. § 44-14-161[a]). If this deadline is missed, then the lender cannot get a deficiency judgment.
    THe other requirments come from this code.

    I cannot say weather your mortgage company will or will not meet this requirement in this section, nor if they will file the report on time. I can just say for most people, mortgage companies do not seek deficiency judgments in ga, though they have every right to do so.

    This response is for general information purpose only and does not create a client/attorney relationship. The answer is not complete and may not be the best course of action for you to take based on the limited information. You are encourage to seek at least a consultation with an attorney to see your options on the matter.