Stripping Second Mortgages in Chapter 7 Bankruptcy

Handing banks a significant victory, in Bank of America v. Caulkett, the Supreme Court ruled that homeowners who file for Chapter 7 bankruptcy may not expect to have their second mortgage loans canceled, even if they owe more on their homes than the properties are worth.  In a unanimous decision, the court held that second mortgages may not be “stripped off,” or voided, if the property is underwater, or worth less than the mortgage debt. Caulkett decision protects mortgage lenders, which extended second mortgages during the housing boom on homes that are now worth much less than their values when they were purchased.

The ruling, written by Justice Clarence Thomas, came from Chapter 7 bankruptcy cases filed in 2013 by homeowners who sought to strip off their second mortgages. The named plaintiff, David B. Caulkett, owed a first mortgage totaling $183,264 at the time of his bankruptcy filing, but his home was valued at $98,000.

The lender for Mr. Caulkett’s first mortgage could have expected to recover part of the loan by selling the home, since the house was considered collateral for the loan. But his lawyer argued that his home was so far underwater that the $47,855 second mortgage he took out from Bank or America was essentially unsecured, and thus should be stripped off as part of his bankruptcy filing.

In Chapter 7 bankruptcy, debtors are typically permitted to cancel unsecured debts like credit cards and personal loans. The question before the Supreme Court was whether a second mortgage could be considered such an unsecured debt because the “security” backing the loan had been wiped out by falling home values. The United States Court of Appeals for the 11th Circuit sided with Mr. Caulkett, and Bank of America appealed the ruling to the Supreme Court.

The Supreme Court ruled that the second mortgage could not be stripped off simply because the home, the security underlying the debt, was worth less than the mortgage. The Supreme Court ruling will now prevent underwater homeowners from easily discharging home equity loans and other types of second mortgages in Chapter 7 bankruptcies.

The Supreme Court ruling does not completely prevent homeowners from voiding their second mortgages. Homeowner may still seek to strip off second mortgages after filing Chapter 13 bankruptcy case.  In order to do so, the debtor must file a Chapter 13 bankruptcy case and what is known as a “Pond” motion.  The motion is named after a decision, In re Pond, 252 F.3d 122 (2nd Cir. 2001). Here is a detailed discussion of Pond motion and the process of stripping a second mortgage.

This decision forces the debtors and their bankruptcy lawyer to engage in a cost benefit analysis in a situation where there is a wholly unsecured second or mortgage.  Assuming the debtors can file either Chapter 7 or Chapter 13 Bankruptcy, the benefits of filing Chapter 7 Bankruptcy and discharging all unsecured debt, should be compared to the benefit of a Chapter 13 Bankruptcy plan payments over 5 years, and a likely discharge of the unsecured second or third mortgage.  Assuming the debtors wish to retain their residence, the comparison of two figures should point them in the right direction.

If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a Rochester, NY, bankruptcy lawyer.

Second Mortgage In Chapter 7 and Chapter 13 Bankruptcy

It is common for someone who is about to file Chapter 7 Bankruptcy to have a pending or upcoming foreclosure action.  It is also common for the debtors to have a house that is “under water”, i.e., to owe more on their first mortgage than their house is worth.  It is also common for the debtors to have a second mortgage such as a standard mortgage, line of credit or a home equity line of credit. If the first mortgage exceeds the value of the home, it is clear that the second mortgage has no equity in the house to support it, and is fully unsecured.

Once the debtors or their bankruptcy attorney realize the above, the debtors have a choice to make. They can file a Chapter 7 Bankruptcy, assuming that they can pass the means test. If the debtors are eligible for Chapter 7 Bankruptcy, their personal liability under both mortgages can be eliminated. Then, the debtors can decide to pay the first mortgage only. They may also decide to take a calculated risk that the second mortgage holder would try to foreclose on its mortgage.  But would the lender actually commence a foreclosure?  Initially, unless the second mortgage holder acquires the first mortgage, it would end up with a house subject to a first mortgage that exceeds what the house is worth.  That would likely make any such attempted foreclosure a money losing proposition.  Also, if the first mortgage holder forecloses, that foreclosure would eliminate the second mortgage.

Another option that the debtors have is to file Chapter 13 Bankruptcy. While Chapter 13 will carry with it a repayment plan that may last as long as 5 years, it also allows for “lien stripping”, otherwise known as “Pond” motion.  In Chapter 13 Bankruptcy, the totally unsecured mortgage is wiped away and no longer a lien on the debtors’ home.  Then, the second mortgage is treated as unsecured debt that gets repaid in the bankruptcy in accordance with the terms of their repayment plan. According to bankruptcy courts’ decisions, the debtors have to receive a Chapter 13 discharge before the lien is stripped.

Most of the decisions addressing Chapter 7 Bankruptcies hold that the debtors cannot “strip” their fully second unsecured mortgage in a Chapter 7 Bankruptcy case.

One important reason for many debtors to stay in their house after Chapter 7 is that it may cost them less to pay the mortgage than to rent another place to live.  The second mortgage becomes a lot less important since the debtors may be able to strip it right away in Chapter 13, and, if economic conditions don’t improve, the debtors might be able to strip it 4 years from the date they filed their chapter 7 case – when they are eligible for a discharge under Chapter 13.

Another option that may be available to some debtors is to have their mortgage recast under the new Home Mortgage Modification Program.  In my experience, here in Rochester, lenders are willing to work with debtors to recast their mortgages.  Assuming that the debtors have ability to pay their mortgage, and meet other financial requirements, their mortgage may be modified by their lender.

If you are contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, New York, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a Rochester, NY, bankruptcy lawyer.