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I filed chapter 7 and was granted a discharge, however, my mortgage lender, has not sent me paper work to surrender the house.

Orlando, FL |

The discharge was granted over a month ago. We are still living in the house. We are going to be away for a couple weeks. I am afraid to come back and find we are locked out or my belonging removed. Can they do this or is there a procedure before they take possession of the property? I'm lead to believe it is the later.

Also since we are still in the house, are we incurring new debt from the mortgage lender now that the BK has been discharged.

Attorney Answers 5


  1. In order to move you out of your home, the lender will have to complete the foreclosure process. In that process, you will be informed of the sale date, which will be at least weeks in the future. There is no mechanism for the bankruptcy court to move you out. You do not incur a debt to the lender by remaining in the home. You are liable for any HOA or condo fees until the property is no longer in your name. Consider a short-sale where you might get some money to move.

    Posting questions anonymously and receiving general answers do not substitute for consulting with an attorney licensed to practice in the jurisdiction in which you live. Answers posted here by Kevin C Gleason are only intended for general education of the public on legal matters. Please consult a qualified professional before deciding what to do about your situation.


  2. The debt to your existing mortgage lender is discharged. Speak to your bankruptcy lawyer in Florida. You may be able to live 'rent free' until the foreclosure process is completed. I don't know how long the foreclosure process takes in Florida. In NJ where I'm admitted it's taking 18-24 months to complete a residential foreclosure. Your bankruptcy attorney in Florida likely can give you a more definitive answer on the time frame for lenders completing foreclosure cases in Florida.

    Good luck.

    This answer does not constitute specific legal advice or create an attorney-client relationship between Glenn R. Reiser, Esq. or LoFaro & Reiser, LLP and the individual or company whose posts we are responding to.


  3. There is a long procedure before the bank takes the home. You are not incurring new debt with the bank. But you absolutely mus continue to pay any HOA dues, assessments, or other charges until the property is no longer in your name through a sale or deed which can be more than a year away depending on your default time frame and lender. So go on vacation and come back and live rent free/mortgage free until the foreclosure sale is scheduled.

    The above information does not establish an attorney-client relationship and is based upon the limited information the questioner provided. Unless you have signed a representation letter and paid a retainer, you are not a client of the firm. You should seek legal advice from an attorney in your area if you want a full legal opinion in this matter.


  4. I agree with the foregoing answers, and would add that if you want the house "gone" you need to take proactive measures now, otherwise it could be years before the bank finishes the foreclosure. If you want to drag it out and live there or rent it out, then this might be good...but if you are looking for a "fresh start" and want to buy another home in the future, this issue will hold you back. This is because although the bankruptcy petition states that you will "surrender" the home, it really doesn't go anywhere in terms of a change in title. I would highly recommend that if you want closure so that you can start rebuilding your credit and work toward future homeownership, you should look into a short sale or deed in lieu of foreclosure. I hope this helps.

    This answer is based upon limited information provided by you, and is therefore generic legal advice and does not create an attorney-client relationship. You are advised to seek legal counsel for your particular situation.


  5. I agree with what others have stated. In order for the bank to take possession of the property, it needs first to complete the state action foreclosure process. This most likely will be a lengthy process which could be made lengthier if you defend the foreclosure. To answer your other question, no, you are not incurring new debt from the lender. That debt has been discharged.

    The purpose of this answer is for general information only. The information presented here should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.