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When debts have become unmanageable, filing for bankruptcy protection may be the best option. It is an effective way for people to get back on their feet, because it offers a debt relief over a shorter time period than debt consolidation plans. It is often especially attractive to homeowners because eliminating other debt often frees up the funds necessary to keep the family home.

It is important for homeowners to understand how bankruptcy impacts home ownership. Some homeowners may not realize that a lender can foreclose on a home even after the owner has filed for bankruptcy.

Bankruptcy is an effective means of preventing foreclosure. Once bankruptcy is filed, an injunction known as the automatic stay goes into effect. The automatic stay bars all collection efforts from creditors, including repossession and foreclosure attempts as long as the sheriff’s sale has not taken place.

The automatic stay generally remains effective for the as long as the bankruptcy case lasts. In chapter 7 bankruptcies, this could be several months. With Chapter 13 bankruptcies, it could be a few years. There are some important caveats. With secured property, like a house or car, the person filing bankruptcy must continue to pay his/her mortgage while staying current on bankruptcy plan payments, if one exists, to maintain the automatic stay.

If a person fails to make payments on their mortgage, foreclosure after bankruptcy is still a possibility. The reason has to do with the underlying security agreement itself. Bankruptcy eliminates the duty to repay the money for a debt, but it does not remove the collateral agreement. Even though the obligation to pay the debts are discharged, the property itself is still secured by the mortgage or other security agreement. If a homeowner does not cure mortgage arrears in the bankruptcy and continue to make payments on their home, the mortgage company retains the right to take possession of a home and sell it is through foreclosure.

Types of foreclosure

When a person no longer wants their home there are two principal ways a mortgage company can take possession of a home — a deed in lieu of foreclosure or foreclosure. A deed in lieu of foreclosure requires that the homeowner sign the property over to the lending bank. While this may help a homeowner’s credit score by avoiding a full foreclosure, it also means giving up possession of the family home right away. Homeowners often opt for full foreclosure because it allows them to save up money while staying in their home throughout the foreclosure process.

A traditional foreclosure can take place in one of two ways. In a judicial foreclosure, the lender uses the court systems to obtain ownership of the property. In a non-judicial foreclosure, the home can be sold at an auction. Each state has different processes for how a lender can do a non-judicial foreclosure. Even if the homeowner has filed for bankruptcy, the lender must still follow one of these processes to obtain ownership of the home.

Dealing with foreclosure after bankruptcy

If you are considering filing bankruptcy or facing a foreclosure, it is important to seek legal advice. A knowledgeable Los Angeles bankruptcy lawyer will educate you on your options, making sure you understand how your choices could impact you so you. Once you are informed about the decisions available to you, you will feel confident about making the best choice for yourself as you prepare for a fresh start in the future.

Article provided by Simon & Resnik, LLP
Visit us at www.simonresnik.com

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