The Bank charged off my 2nd mtg. It is 10m underwater. I am considering a Chapter 7. Will lien be stripped? I live in Florida.

Asked almost 2 years ago - Orlando, FL

1st mtg 135m. 2nd 35m. Bank appraised house at 145m; although tax records say its worth 111m

Attorney answers (5)

  1. Richard Allan Heller

    Contributor Level 13


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    Answered . Based upon your numbers the Second Mortgage Holder may have some equity in the property. If so, it cannot be stripped in a Chapter 7. The property appraiser's office often undervalues property and is not a good determiner of value. A formal appraisal may be necessary. The other question is whether this is your homestead or investment property. If homestead, the law at present allows a lien strip of a totally unsecured second mortgage. The 11th Circuit Court of Appeals will be ruling on this issue this year, so depending on your judge, filing district, and when a decision is made by the appellate court, a lien strip of a wholly unsecured second may or may not be possible.

    This is not Bankruptcy 101. Get legal advice. Please feel free to call me or another experienced attorney to review your situation.

    The response given is general in nature and based upon limited information. It does not and cannot replace that... more
  2. Timothy S. Kingcade


    Contributor Level 10


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    Answered . Mortgages can be “stripped off” in the State of Florida. However you must prove that the property’s FAIR MARKET VALUE is worth LESS than the balance owed on the FIRST mortgage. A tax bill is not FMV. You need an appraisal from an appraiser that can present his/her appraisal in court and testify as to the valuation and comparables used.

  3. Scott Benjamin Riddle

    Contributor Level 20


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    Answered . In a Chapter 7, no (but see below). In a Chapter 13, maybe, if you can prove the value is less than the balance of the first mortgage and you complete a plan. If the appraisal is recent, is certainly does not help you, but neither do the tax records as they are often not considered accurate.

    * The exception to the above is if you wanted to hire a lawyer to argue a recent, unpublished opinion of the 11th Circuit Court of Appeals (which includes FL), that is contrary to just about every other court in the country, that concludes you may be able to strip an unsecured lien in a Chapter 7.

  4. Derek R. Caldwell


    Contributor Level 19


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    Answered . If you actually have equity above the amount of the first mortgage that secures the second for as little as a dollar, then you cannot strip the second in any consumer bankruptcy chapter. In most arears of the country a second or later mortgage cannot be stripped in a Ch7 at all, though some courts in the 11th Circuit have allowed it and Florida is in the 11th Circuit. As my colleague indicated there is at least one such case pending in front of the 11th Circuit Court of Appeals which should be decided this year which should give direction on whether strips of second mortgages can be done in the states covered by the 11th Circuit. If the 11th decides to allow it, I would expect the case or a similar to be appealed to the Supreme Court.

    This is positively not something you should try to handle on your own.

    DISCLAIMER: This message is intended as a general discussion of legal issues and not as a statement of fact, legal... more
  5. Michael Avanesian


    Contributor Level 16


    Lawyers agree

    Answered . Assuming you live in the house... there will be a battle over the value of the property and that costs money in legal fees. If you can get the judge to agree that the value of the property is below the value of the first, you can strip it off in a chapter 13.

    The problem is, if there is value above the first, like there is in your case (assuming value does not change), then in California at least, and I think Florida too, you can't even strip or mess with this thing in a Chapter 13.

    The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may... more

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