Possibly surprisingly, among the most aggravating developments in our ongoing foreclosure crisis pertains to mortgage lenders' obstinate resistance to execute with a foreclosure in a prompt way. A lot of frequently, this situation emerges in a Chapter 7 Bankruptcy in which the debtor has determined that it is in his or her best interest to surrender a house.
As we all understand, mention anti-deficiency laws determine whether a mortgage lending institution might seek a deficiency judgment after a foreclosure. We likewise know that a Personal bankruptcy Discharge will protect that homeowner from such liability regardless of what the debtor's state statutes have to state concerning whether a home loan loan provider might seek a deficiency judgment.
While defense from post-foreclosure liability to the home mortgage lending institution stays a powerful benefit offered by the Personal bankruptcy Discharge, a fairly new source of post-bankruptcy petition liability has actually emerged in the last number of years. One that our clients are all too regularly surprised by if we neglect to use progressively extensive recommendations before, during, and after the filing of a bankruptcy petition.
What I am talking about, naturally, are Homeowners Association charges, and to a lower extent, community water and garbage charges. As all of us should know well, such repeating fees accumulate post-petition, and specifically since they recur post-petition, they constitute brand-new financial obligation-- and as new debt, the Bankruptcy Discharge has no impact whatsoever upon them.
The normal case involves a Chapter 7 insolvency debtor who chooses that he or she can not possibly manage to keep a house. Possibly this debtor is a year or more in financial obligations on the first home loan. Maybe the debtor is today (as prevails here in California) $100,000 or more undersea on the property, and the lender has actually declined to offer a loan modification regardless of months of effort by the house owner. The house in all probability won't be worth the secured quantities owed on it for years to come. The month-to-month payment has actually gotten used to an installation that is now sixty or seventy percent of the debtor's household income. This house needs to be surrendered.
The problem, of course, is that surrender in bankruptcy does not correspond to a prompt foreclosure by the lending institution. In days past, say three or even simply two years ago, it would. But today, mortgage loan providers simply don't desire the residential or commercial property on their books. I typically picture an expert deep within the bowels of the home mortgage lender's foreclosure department taking a look at a screen revealing all the bank-owned 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 offer at half the amount it provided just 4 years ago. We might go on and on about the recklessness of the bank's decision in having actually made that original loan, however that is another article. Today the residential or commercial property is a hot potato, and there is nothing the debtor or the debtor's bankruptcy attorney can do to oblige the home loan lending institution to take title to the residential or commercial property.
For this reason the problem. There are other celebrations involved here-- most notably, homeowners associations. HOAs have in lots of areas seen their monthly fees plunge as more and more of their members have defaulted. Their capability to gather on delinquent association dues was long believed to be secured by their ability to lien the home and foreclose. Even if their lien was secondary to a first, or perhaps a 2nd home mortgage lien, in the days of house appreciation there was almost constantly adequate equity in genuine estate to make the HOA whole. But no more. Today HOAs frequently have no hope of recovering past fees from equity in a foreclosed home.
So, where does this all leave the personal bankruptcy debtor who must surrender his/her residential or commercial property? In between the proverbial rock and a tough location. The lending institution may not foreclose and take the title for months, if not a year after the personal bankruptcy is submitted. The HOAs charges-- together with water, garbage, and other community services-- continue to accrue on a regular monthly basis. The debtor has often moved along and can not rent the property. But be guaranteed, the owner's liability for these repeating costs are not discharged by the bankruptcy as they arise post-petition. And she or he will remain on the hook for new, recurring fees till the bank finally takes over the title to the property. HOAs will usually sue the homeowner post-discharge, and they'll aggressively seek attorneys' fees, interest, expenses, and whatever else they can think about to recoup their losses. This can often lead to tens of countless dollars of new debt that the recently insolvent debtor will have no hope of discharging for another eight years, must she or he submit personal bankruptcy again.
This issue would not emerge if home mortgage loan providers would foreclose immediately in the context of a bankruptcy debtor who surrenders a home. We as bankruptcy attorneys can literally beg that lending institution to foreclose currently-- or, even better, accept a deed-in-lieu of foreclosure, however to no obtain. They merely don't want the property. What advice, then, should we provide to debtors in this scenario? The choices are couple of. If the debtor can hold on up until the home really forecloses prior to filing insolvency, this would eliminate the issue. But such a delay is not a luxury most debtors can manage. If this option is not readily available, the debtor needs to either live in the property and continue to pay his or her HOA charges and municipal services or if the residential or commercial property is a 2nd house, for example, an attempt to lease the residential or commercial property to cover these continuous expenses.
In the last analysis, the Personal bankruptcy Code never ever contemplated this situation. Nor did most states' statutes governing house owners' associations. A remedy under the Personal bankruptcy Code to force home mortgage lenders to take title to surrendered real estate would be ideal, but given the problems facing http://centurylawinc.com this Congress and its political orientation, we can comfortably state that the possibility of such a legal solution is beyond remote.