NO mortgage reaffirmation was done during chapter 7 & chapter 7 was discharged 5 years ago & since the mortgage note was discharged at that time & mortgage lien is still there & foreclusure judgement is now on the house entered recently few days ago --what would be correct amount to fill in on chapter 13 papers for secured mortgage debt ? I think it should be the value of the house when chapter 7 discharge took place because USC 524 states that after chapter 7 discharge note is wiped clean & only recourse is taking back the house & no debt entered/recovered as personal liability.What do the federal judges say?
This can vary by bankruptcy district but generally the value of the home is as of the date of the filing of the Chapter 13. I do not believe your rationale to "back date" the value to the Chapter 7 filing date is valid. I think you are reading too much into 524, I do not think it supports your contention. Since it appears that you are trying to "go it alone" and not use an attorney (which I think is a huge mistake) I will give you one piece of advice: remember that no attorney worth his salt simply looks at the bare statutory language, you also want to look at how courts interpreted it and applied it in specific factual circumstances. Since there were alot of changes to 524 in 2005, there has also been alot of caselaw interpreting its many new and changed provisions. Before you go and take a position on your petition regarding this section, you should do some research to determine whether the position you are taking has been supported by the courts or not. Of course, one way to avoid all this, is hire a qualified attorney in your area!
Good luck,
I will second Mr. Kim's caution to you. Bankruptcy is more than statute and paperwork. If you are trying to save the house in a 13 by catching up the mortgage, you need the value on the date of filing and the amount of the lien. Even if the debt was discharged, it is still a valid lien on your property that must be paid if you want to keep the property.
Now, get help. Attorney fees can be paid through a properly constructed plan.
Eric M Lee-O'BrienCorporate / Incorporation Lawyer ·
The short, easy answer is that you should treat the mortgages exactly the same in both bankruptcies.
The longer answer is, filing the Chapter 13 might revive the claim. If the claim was secured as to the individual (the person filing the bankruptcy) and was wiped out in the Chapter 7, there might be a mechanism when you file the Chapter 13 to revive the claim and the personal liability to such a degree that it needs to be listed for an actual dollar amount in the subsequent Chapter 13.
An example: The Chapter 7 could have wiped out the personal liability on a first and second mortgage in the first case. In the subsequent Chapter 13, if you attempt to strip the second mortgage (taking the lien off the land), the mechanism to do that creates an unsecured claim. The amount of the unsecured claim ends up being the amount of the second mortgage in the Chapter 13, basically reviving the claim for the second mortgage, even though it had already been wiped out in the first Chapter 7.
These kind of tricks, loopholes, and special maneuvers can play havoc in a Chapter 13 with the concept of debt limits so be careful. However, if you are not going to play around with loopholes and special maneuvers, see the short answer at the top.
