I will not be signing a reaffirmation agreement with the mortgage creditor. This is my first time filing bankruptcy and I know the mortgage creditor is not going to motion to lift the stay. I originally assumed that the automatic stay would not be lifted until discharge but then I found out that in the case of the secured auto creditor, if I don't reaffirm the debt, the stay is lifted 45 days after the 341 meeting. So I am now wondering if this 45 days also applies to the secured mortgage creditor.
If you claimed the homestead as exempt (which probably would have been a bad idea) then the automatic stay does not expire until after your claim of homestead is unopposed and your discharge is either granted or denied. The 45-day expiration is regarding personal property only (cars) and not real property (houses). See 11 USC Sec 362(h).
If you did not claim the homestead as exempt, the stay is lifted when the Trustee abandons the property (which means that the Trustee gives it back to you along with the related liens), or when the case is closed, whichever is first.
Posting questions anonymously and receiving general answers do not substitute for consulting with an attorney licensed to practice in the jurisdiction in which you live. Answers posted here by Kevin C Gleason are only intended for general education of the public on legal matters. Please consult a qualified professional before deciding what to do about your situation.
The automatic stay as it pertains to your property lifts once either 1) the creditor has obtained relief from stay from the bankruptcy court by filing a motion with 28 days notice, or 2) your bankruptcy case closes, which in a no asset case usually happens shortly after the discharge is received in most jurisdictions (90 - 100 days after the case is filed, on average).
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.
No, the 45-day rule does not apply to mortgages. Quite often the problem is one of getting the mortgage creditor to move forward with foreclosure to get the title to the house out of your name.
Below is a previous answer we provided that might help.
Earl David Maxwell
Bankruptcy Attorney - Orlando, FL
Contributor Level 12
3 Lawyers agree
chosen by asker
Answered 5 months ago. Moving forward with a foreclosure is up to the bank. We have seen it take years. You do need to get your name off the house.
if you are concerned with your credit standing to buy another home in the future, the foreclosure is not complete, and the house is still listed in your name (check Property Appraiser online) then you have options:
1) Your best option is likely a short sale. You can qualify post discharge to buy another home in less than year to 3 years. You can list with a broker knowledgeable in short sales and there should be no cost to you. The closing costs (that can include the attorney's fee of a lawyer to help) will be paid by the bank or the buyer. The bank ultimately has to approve the sale, but there are reasons why this benefits the bank.
2) If you just let the house go through foreclosure you are likely to be able to qualify to buy another home within about 4 years after the foreclosure is complete.
3) The worst alternative is to give the bank a deed in lieu of foreclosure. In this case you will not likely qualify to buy again in 5+ years.
Be aware that a lawyer cannot offer full service on a short sale including listing the property unless they are also licensed as a real estate associate or broker. You should make an appointment for a free consultation.
If this answer has helped you, please mark it as Best or Helpful Answer. This communication is intended as general information and is not specific legal advice to be relied upon and does not create an attorney-client relationship. If you already have an attorney on this matter, consult with that attorney.
The rule you are referring to applies only to personal property, not your real property.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline