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Is it possible to wipe out unsecure portion of mortgage ?

Miami, FL |

We (wife&husband) had a Chapter 7 discharge in Dec 2010.(Miami-Dade)
first and only mortgages was 145.000.
Our property value was $80.000.00
so, in "Schedule D" was DECLARED :
AMOUNT OF CLAIM W/O DEDUCTION VALUE : 145.000.00
UNSECURED PORTION :65.000.00.dO i have to pay for whole mortgage
or am i abble to wipe out, unsecured portion? what to do?
Regards

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Attorney answers 5

Best Answer
Posted

Mr. Solomon is correct. Unless you reaffirmed the debt (which you can check by looking at the file with the bankruptcy court) then you discharged the entire debt. What is the context of your question? Are you trying a short-sale? Are you thinking you can keep the house without paying the mortgage? That's not happening unless the bank waited more than 5 years to foreclose.

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.

Posted

You cannot cramdown or strip off the unsecured portion of your first mortgage on your principal residence.

You have to pay the full mortgage.

Posted

You have discharged the entire mortgage debt on your first mortgage if you did not sign a reaffirmation agreement. However, the bank retains its full lien rights, so you must continue to make your payments on the full mortgage balance or the bank can foreclose.

The questions and answers posted on AVVO are for general information and should not be treated as legal advice or establishing an attorney-client relationship.

Posted

While the bank can not pursue you for any deficiency if you stopped making payments and it foreclosed on the house, unfortunately, if you want to keep the house, you will have to pake your payments on the entire amount due as youcan not "strip off" the unsecured portion of a first mortgage. If you had a second mortgage and it was totlally unsecured, then the second mortgage could be stripped off in a Bankruptcy.

This response is meant as general advice only and should not be relied upon for taking any actions. Each person's situation is different.You must seek legal counsel from a local attorney before making any decisions.

Posted

As I understand it, you could wait 4 years from the time of your Chapter 7 discharge and then file a Chapter 13. There is some case law and opinions out there stating that the 4 year interpretation is incorrect, and that you could file 13 immediately. To me, it makes sense that you should be able to file a Chapter 13 immediately and pay only what the property is worth to get the lien removed. However, it is also my understanding that such is not the practice in our district. In any event, if it were possible, you would have to pay the mortgage in full in the plan which can not exceed 60 months, and that can be problematic.

The law is complicated and although the facts expressed may seem to be all that is relevant, there may be many other important facts to consider. Also, the law is constantly undergoing change, so what may be correct today, may not be accurate tomorrow. Only a full consultation with an attorney experienced or knowledgeable in the specific legal subject matter is likely to result in the optimal course of action. My practice has entailed more than a 30 year span of many real estate, personal property, and bankruptcy issues. Find out more about me at: FloridaPropertyLitigation.com.

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