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If we convert our chapter 13 to a chapter 7 can we still keep our home

Kokomo, IN |

Hi, about a year and a half ago my husband and I had to file a chapter 13 in order to keep our house. In May I lost my job and have been juggling bills in order to make things work. Well, about 2 weeks ago I talked to my lawyer and I am now 2 payments behind on our house and he told me he would file a motion of stay. I have not heard anything back from him since. I called 2 days ago and left a message but still nothing. Since our bankruptcy started we have accumulated an extra $225.00 in extra monthly payments with paying the trustee and due to our interest rate going up. We really need to refinance but cannot because our 80,000 house is now worth about 50,000 if we are lucky. I just feel like I keep running into a wall on our finances. My husband works for the state and after taxes and insurance brings home $1999.00 every month. After all our monthly bills, house, car auto insurance, utilities, we are way over what he brings home. Mind you this does not even include groceries and gasoline. We have to have food, we have 3 kids. I have looked for a job since May and the only thing I have gotten is a on call job through the school cafeteria. It only pays 7.00 an hour before taxes and is only 3 hours everytime I am called in. I guess my question is, is there any programs out there that can help us with our house being refinanced, and if so can you let me know? Should we and can we maybe convert to a chapter 7 and if so could we still keep our home? How would this work if this is an option? Thank you for any advice, it is greatly appreciated.

In our case, my wife and i have been unemployed for medical problems. my wife is currently receiving disability. i receive a military retirement check however 85% of it goes towards the chapter 13. It is difficult to live on just disability alone and have exhausted our savings. we have about one and a half yrs left on our bankruptcy. can i request that i stop making payments temporarily until i find new employment,? should i request chapter 7.

Attorney Answers 3


It sounds as though you no longer have the disposable income necessary to fund your plan, in the event one has been confirmed. You may have no choice in the decision to convert your case, but find your case converted as a product of your failure to comply with your plan. I suspect that in the Chapter 13 you had hoped to pay any mortgage arrears existing at the time of your filing over the life of your Chapter 13 plan (typically 3-5 years), without interest. In a Chapter 7, a Chapter 7 trustee would be designated to look into your financial affairs and administer your case. If your home has no equity above the mortgage and your applicable homestead exemption, the Chapter 7 trustee would likely have no interest in selling your home as it would not yield any financial benefit to your creditors. However, the bank holding the mortgage will likely be concerned about the diminishing equity and possibility that the house is now "under water". As a result, it may wish to foreclose on the mortgage if the mortgage is in default. To do so, it would need to file a motion before the Bankruptcy Court to lift the automatic stay imposed under Section 362 of the Bankruptcy Code. If successful, the bank could proceed with a foreclosure proceeding in state court. The foreclosure process takes different lengths of time in each state and even each county. Moreover, depending on when the loan was taken and the type of loan. The federal government and certain states have established various programs to assist qualifying individuals. You may want to consult a local real estate practioner concerning your options in this regard.

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You will not be able to keep your home, based on the scenario you have set forth. Start setting aside money to put towards a rental, and look into converting to a Chapter 7 bankruptcy, which will not wipe out the lien on your house, but will wipe out your personal liability on your debts, and give you a fresh start.

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There is a bill pending right now in Congress that, if it passes, will allow people in Chapter 13 to ask the court to mdify their mortgage, to reduce it to the current value of the house, and then to restructure the payments, so, in effect, like a refinance.

It is pending in Congress right NOW, and if it passes it is intended to be effective immediately and to be available to people currently in Chapter 13. So, if you can possibly hang on, please try. Under the current rules, Chapter 13 is tough to handle, since you need to have a plan that provides for full repayment of the arrears. If the bill passes, that will all change, and in a plan like that, assuming your house is worth less than the debt, your plan payments could potentially be reduced.

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