Maybe remarkably, among the most aggravating advancements in our continuous foreclosure crisis has to do with home mortgage lenders' obstinate resistance to finish with a foreclosure in a prompt manner. A lot of typically, this circumstance arises in a Chapter 7 Personal bankruptcy in which the debtor has determined that it is in his or her benefit to surrender a house.
As all of us know, specify anti-deficiency laws identify whether a mortgage lender may look for a shortage judgment after a foreclosure. We also know that a Bankruptcy Discharge will protect that property owner from such liability regardless of what the debtor's state statutes have to say worrying whether a home loan lender might look for a shortage judgment.
While security from post-foreclosure liability to the mortgage loan provider remains a powerful advantage used by the Bankruptcy Discharge, a reasonably new source of post-bankruptcy petition liability has actually emerged in the last number of years. One that our customers are all too regularly shocked by if we neglect to provide increasingly detailed advice before, throughout, and after the filing of a personal bankruptcy petition.
What I am speaking about, naturally, are Homeowners Association charges, and to a lesser extent, community water and garbage costs. As we all must understand well, such recurring costs accumulate post-petition, and precisely since they recur post-petition, they constitute brand-new debt-- and as new financial obligation, the Bankruptcy Discharge has no result whatsoever upon them.
The typical case includes a Chapter 7 insolvency debtor who chooses that she or he can not perhaps pay for to keep a home. Possibly this debtor is a year or more in defaults on the first mortgage. Possibly the debtor is today (as prevails here in California) $100,000 or more undersea on the property, and the lending institution has actually refused to use a loan adjustment regardless of months of effort by the house owner. The home in all probability will not deserve the protected quantities owed on it for decades to come. The monthly payment has actually gotten used to an installment that is now sixty or seventy percent of the debtor's family income. This house must be given up.
The problem, naturally, is that surrender in bankruptcy does not equate to a timely foreclosure by the lending institution. In days past, say 3 or perhaps simply two years earlier, it would. However today, home mortgage lending institutions simply do not want the home on their books. I frequently envision an expert deep within the bowels of the home loan lender's foreclosure department taking a look at a screen revealing all the bank-owned residential or commercial properties in an offered zip code. This would be another one, and the bank does not desire another bank-owned residential or commercial property that it can not cost half the amount it lent simply 4 years earlier. We could continue about the recklessness of the bank's decision in having actually made that initial loan, however that is another post. Today the residential or commercial property is a hot potato, and there is absolutely nothing the debtor or the debtor's bankruptcy attorney Century Law Firm yelp can do to compel the mortgage lender to take title to the residential or commercial property.
For this reason the problem. There are other celebrations involved here-- most especially, homeowners associations. HOAs have in many areas seen their regular monthly dues plunge as more and more of their members have defaulted. Their ability to collect on delinquent association charges was long believed to be protected by their capability to lien the property and foreclose. Even if their lien was subordinate to a first, and even a second home loan lien, in the days of house appreciation there was almost always sufficient equity in property to make the HOA whole. However no more. Today HOAs frequently have no hope of recuperating unpaid from equity in a foreclosed property.
So, where does this all leave the insolvency debtor who must surrender his/her home? Between the proverbial rock and a difficult location. The lender may not foreclose and take the title for months, if not a year after the personal bankruptcy is filed. The HOAs charges-- together with water, garbage, and other local services-- continue to accumulate on a month-to-month basis. The debtor has frequently moved along and can not lease the residential or commercial property. But be assured, the owner's liability for these repeating fees are not released by the personal bankruptcy as they arise post-petition. And he or she will stay on the hook for brand-new, recurring costs until the bank lastly takes control of the title to the residential or commercial property. HOAs will typically take legal action against the homeowner post-discharge, and they'll strongly seek lawyers' charges, interest, expenses, and whatever else they can consider to recoup their losses. This can sometimes result in 10s of thousands of dollars of brand-new debt that the recently insolvent debtor will have no hope of discharging for another eight years, must he or she submit personal bankruptcy again.
This problem would not arise if home mortgage lending institutions would foreclose quickly in the context of a personal bankruptcy debtor who surrenders a home. We as insolvency lawyers can actually ask that loan provider to foreclose already-- or, even better, accept a deed-in-lieu of foreclosure, however to no avail. They merely don't desire the property. What guidance, then, should we provide to debtors in this situation? The alternatives are few. If the debtor can hang on till the residential or commercial property actually forecloses previous to submitting insolvency, this would eliminate the issue. But such a hold-up is not a luxury most debtors can afford. If this choice is not available, the debtor must either live in the property and continue to pay his/her HOA fees and municipal services or if the property is a 2nd home, for instance, an effort to rent the property to cover these continuous expenses.
In the final analysis, the Bankruptcy Code never ever considered this circumstance. Nor did most states' statutes governing house owners' associations. A remedy under the Bankruptcy Code to compel home loan lenders to take title to gave up genuine residential or commercial property would be ideal, however provided the concerns facing this Congress and its political orientation, we can conveniently state that the possibility of such a legal service is beyond remote.