I went through loan mod with the first bank and now successfully reinstate the loan and now current on the loan payment. However, I have 2nd mort loan (diff bank) that I am not paying. I don't really know what happen since I never get 2nd loan bills since the time I was doing loan mod with the 1st bank. If the 2nd bank were to ask me to start paying their loan again then I won't be able to afford my house because I can no longer earn the money like I used to before the market crashed. Right now my home value is less than the 1st mortgage amount so I am thinking about filing Chapter 13 to get rid of the 2nd mortgage and all other liens I have on my home. However, I just got Ch 7 discharged 3 years ago and want to know when I am allowed to file Ch 13. Please advise. Thank you.
that is called a chapter 20. the mortgage debt continues to live on the r/e, but u r not liable.
courts differ. some judges have no problem with these. others see an issue.
FINF a qualified local atty that knows the law and the judges rulings
Under the Bankruptcy Code, a person qualifies for a Chapter 13 discharge in a case that is filed 4 years after the prior Chapter 7; however, the language of the applicable statutory provision is ambiguous so Courts interpret it differently. Some Courts believe the 4 year period begins with the filing date of the prior Chapter 7 to the filing date of the Chapter 13 case; others say it is from the date of Discharge in the Chapter 7 to the date of filing the Chapter 13 case. Additionally, other jurisdiction specific standards come into play. Some Courts look at cases that are filed immediately on the heels of another are indicative of bad faith so they won't confirm a proposed Chapter 13 Plan. You need to consult with a qualified and experienced Bankruptcy Attorney in your area to be able to better advise you as to the likelihood of successfully confirming a Chapter 13 Plan under your circumstances; and, whether or not you will be able to strip the second mortgage lien from the home as well (that's an entirely different piece of the puzzle).
I am an Attorney licensed to practice law in the State of Utah. This is a public forum. Any questions or answers published here should not be construed as the giving or receiving of legal advice or the formation of any Attorney-Client relationship. Your should consult with a competent Attorney in the jurisdiction where your legal issues are pending and get good, solid legal advice. This being a public form, those answers you do read are merely given for informational purposes only. If you consider the information provided has been helpful; please indicate so by designating that the answer was either "helpful" or the "best answer" as you believe to be appropriate.
You don't need to wait to file the Chapter 13. Most judges here in Los Angeles will allow you to do the lien strip (assuming the numbers work out) in a Chapter 13 case right after a Chapter 7. It really depends on your judge which may or may not be the same judge as you had for your Chapter 7 case.
It may make sense for you to wait until you get to 4 years after your Ch. 7 case was filed, but it really depends.
I'm happy to give you a free consult to go over your situation and options. (see link below)
Legal disclaimer: Mark J. Markus practices law in California only. The information is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Answering this question does not in any way constitute legal representation.
Depends on judge. You are describing what is commonly referred to as a Chapter 20 BK. Fairly common. Most, not all, BK judges in Los Angeles will allow filing C13 within time frame you described and will allow the lien strip.
It does depend on the Judge but if the property is in Los Angeles then most of the Chapter 13 Judges will allow you file Chapter 13 to do a lien strip on a 2nd mortgage right after a Chapter 7 so you do not need to wait. Have a free consultation with an experienced attorney who will guide you. Better to do it sooner rather than later in case home values go up again.
The information provided herein is general information only and not legal advice. The information provided herein does not create an attorney client relationship and is not a substitute for having a consultation with an attorney. It is important to have a consultation with an attorney as the information provided in this forum is limited and cannot possibly cover all potential issues in a given situation
You can file another case whenever you want. The language in the code states that cannot be granted a discharge within four years of filing a chapter 7 in which you received a discharge. There is no bar to filing the day after getting your chapter 7 discharge (I, and probably most attorneys, have done it).
The issue for you may be, and I'd highly recommend talking to an attorney, the fact that because you cannot be granted a discharge, if you filed your 13 right now, you may be liable to pay those debts incurred between the chapter 7 and this chapter 13. So lets assume you propose a plan that pays these unsecured's 0% ($0.00). At the end of your 3-5 year plan, because their debt is not entitled to discharge, they are accruing interest. Once your case is closed (WITHOUT a discharge), /bam/. You have to deal with them. It's very similar to the situation people with student loans face. They get a plan where they're paying pennies on the dollar, but because there is no ultimate discharge of the underlying debt, interest still accrues. It is just put off until the automatic stay is lifted at the end of the case.
You avoid this issue by doing what the gentleman above recommended and waiting until after the 4 year mark passes, so that you're entitled to the discharge. Or you propose a plan which pays all of that underlying debt. IT's probably a small amount, so it might not be worth considering. But it's worth investigating.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline