Skip to main content

If I changed from a bankruptcy 13 to a chapter 7 and I can no longer make my mortgage payment do I need to include my mortgage

Phoenix, AZ |

I was in a 13 paid for a year on a 3 year plan I became ill and had no income or support coming in so I changed to a chapter 7. I had an attorney but he withdrew because I couldnt pay him more, now Im broke and cant pay my mortgage, Do I need to file documents with the BK court to include my mortgage? Do I have any other options to save my home?

Attorney Answers 6

Posted

If you can't make your payments, you can't make your payments. The court won't let you re-affirm the debt unless you can afford it; which it sounds like you can't. If at the time of discharge you have not entered into a reaffirmation agreement the debt owed on the house will be discharged. You could file an amended "Statement of Intention" to let your creditor know what you intend to surrender the home. You can also attempt what is known as "retain and pay" and continue to pay your lender despite not having an active mortgage. If you do not make the payments, the lender will be able to foreclose on your property but won't be able to hold you liable for a deficiency. You can always try and work something out with the lender.

Hope this helps and I wish you the best of luck!

The information provided in this post is not "legal advice." Rather it is general information on common legal issues. If you have questions concerning your specific situation, it is always best to consult an attorney in your area.

Mark as helpful

9 lawyers agree

Posted

You should have included the name, address and account number for your mortgage in your original bankruptcy case so that the mortgage company received notice. As a result the mortgage is automatically included in your bankruptcy. If you have never sent notice to your mortgage company of the bankruptcy you should do that immediately.

Debtors cannot pick and choose which creditors are to receive notice: the bankruptcy laws require notice to go to all parties in interest. Once receiving notice, parties may file claims, oppose discharge, object to exemptions and ask questions at the meeting of creditors. Intentionally omitting creditors is also grounds for denying a discharge.

I created a YouTube video about picking and choosing which creditors to include in your bankruptcy, I hope you find it helpful.

I am happy to answer general questions about my practice areas on this website. . However as I'm sure you understand we do not have an attorney/client relationship. Therefore my suggestions do not constitute legal advice. I urge you to contact counsel in your jurisdiction from whom you feel you can obtain trusted information. http://www.drescherlaw.com

Mark as helpful

1 found this helpful

7 lawyers agree

3 comments

Gary D. Bollinger

Gary D. Bollinger

Posted

Attorney Drescher wrote, "I created a YouTube video about picking and choosing which creditors to include in your bankruptcy." I was under the impression that all creditors must be included in a bankruptcy filing, I look forward to learning other options from your video.

Ronald Jay Drescher

Ronald Jay Drescher

Posted

Thanks Gary, there are no other options, I agree with you! So many clients ask "do I have to put that creditor into the bankruptcy?" so I created that video to make clear to them that the answer is an emphatic "yes!"

Gary D. Bollinger

Gary D. Bollinger

Posted

I still am astonished at how bankruptcy debtors compartmentalize the process to obtain - at least in their minds -- the proper result.

Posted

When you convert to a Chapter 7 from Chapter 13, you need to submit a new budget (Sch I & J) and a new Means Test. On the expenses, you omit your mortgage payment if you aren't making it.

Your mortgage company was already "included" in your bankruptcy. You don't need to file additional documents to include them again, but you may be required to file a Statement of Intention indicating that you plan to surrender the property. Hope this perspective helps!

Mark as helpful

1 found this helpful

3 lawyers agree

2 comments

Michael Hal Schwartz

Michael Hal Schwartz

Posted

I agree with Dorothy on the need to subnmit a new I & J but "the jury is still out" on the need to file a new means test.

Shaye Larkin

Shaye Larkin

Posted

Excellent response, Dorothy

Posted

Since your mortgage is secured, at the time you file your conversion schedules, you will be required to sign a statement of intention form, which shows your intent to either reaffirm and keep the loan or surrender. Since the mortgage was automatically included when you filed the chapter 13 the debt will be discharged in the 7 (so at least you will not have any personal liability on the note). The mortgage remains and can be enforced if not paid.

Mark as helpful

1 found this helpful

2 lawyers agree

Posted

If your paperwork was done correctly, you don't need to add your mortgage.

As for saving your home, this is a different question.

If you can pay back the lender on terms your lender will accept - you could be fine.

Try going to www.azhousing.gov and see if you qualify for one of their programs.

Best of luck.

Jim Webster
www.jpwlegal.com

1845 S. Dobson Rd. Ste 201
Mesa, AZ 85202

(480) 464-4667
Jim@jpwlegal.com

We are a debt relief agency. We help people file for relief under the Bankruptcy Code..

If you live in Arizona, please contact me for actual advice; this is just speculation. It certainly is not legal advice. I don't have enough information to give actual legal advice. I can only take the limited information presented and provide a idea of what you might do and how it may turn out.

Mark as helpful

1 found this helpful

2 lawyers agree

Posted

Your mortgage should have been listed in the Chapter 13 bankruptcy, you should have amended your schedules I and J, as well as the means test when you converted to a Chapter 7. You should also amend the statement of intention to surrender the house. However, you should seek advise of an attorney to see if you could qualify for a modification, or program to help you keep the house. There are many factors that would have to be looked at to determine if you could save the house. Seek advice immediately, to determine if best to surrender or if payment could be modified.

Mark as helpful

1 found this helpful

2 lawyers agree

Real estate topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics