My Spouse Wants to File Chapter 7 Bankruptcy and Surrender the House. What Will Happen to Me?

Asked almost 4 years ago - Tampa, FL

My husband and I own jointly three houses. They are all mortgaged and we are both on the notes for all of them. One is our primary residence. The other two are rentals and we do receive income from them to cover the mortgage expense. All of the properties however are underwater - some deeply. I do not have any credit card debts, just the mortgages. That is why I do not want to file. He has over 40,000 in credit card debt. That's why he is filing. He wants nothing to do with the houses but I want to keep them. If he surrenders the houses in his Chapter 7 bankruptcy, will I still be able to keep them if I'm making the mortgage payments every month?

Thank you

Attorney answers (2)

  1. Theodore Lyons Araujo

    Pro

    Contributor Level 20

    Answered . Why do you want to keep houses that are upside down? the short answer is thaat your husbands bankruptccy discharge will not affect your liability. however, he is not going to reaffirm the loans so the banks an foreclose on the properties even if you are current with the payments because part of their gaurantee (your husband) has ben discharged.

    His bankruptcy does not get rid of your liability for the debt.

    Here are some Quick Facts about foreclosure in Florida:

    - Judicial Foreclosure Available: Yes

    - Non-Judicial Foreclosure Available: No

    - Primary Security Instruments: Mortgage

    - Timeline: Typically 180 days

    - Right of Redemption: Yes

    - Deficiency Judgments Allowed: Yes

    In Florida, all mortgages are foreclosed in equity. In a mortgage foreclosure action, the court severs, for separate trial, all counterclaims against the foreclosing lender. The foreclosure claim shall, if tried, be tried to the court without a jury.

    The court order of foreclosure will specify how the foreclosure must take place, and the foreclosure must take place on those terms. Whenever a legal advertisement, publication, or notice relating to a foreclosure proceeding is required to be placed in a newspaper, it is the responsibility of the lender or their representative to place such advertisement, publication, or notice.
    Equitable Right of Redemption ends at the foreclosure sale (or at another time specified by the courts, but this rarely happens). There is a period of time after the sale that "the court reviews the sale to ensure a fair price has been paid." Basically, this period of time allows parties to object to the sale on the basis that proper procedures were not followed or collusion existed between the bidders, for example. This period is usually 10 days, after which the Certificate of Sale is filed and title passes, if the sale is confirmed. If the sale is not confirmed, another sale is ordered. (Reference F.S. Chapter 702)

    The lender may sue to obtain a deficiency judgment in Florida.

    Good Luck!

    REQUEST: Please give this answer a "thumbs up"(below) if you find it valuable.

    Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.

  2. Mohammed Omar Badwan

    Contributor Level 12

    Answered . As long as you stay current on the mortgages, I do not foresee the bank foreclosing on the properties. His personal liability for the properties will be severed by the Chapter 7 if he chooses not to reaffirm on the notes. You would still be on the hook if the properties are foreclosed upon in the future. Good luck!

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

27,524 answers this week

3,015 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

27,524 answers this week

3,015 attorneys answering