Possibly surprisingly, one of the most aggravating advancements in our continuous foreclosure crisis has to do with mortgage lenders' obstinate resistance to finish with a foreclosure in a timely way. The majority of frequently, this circumstance emerges in a Chapter 7 Insolvency in which the debtor has actually figured out that it is in his or her best interest to surrender a home.
As all of us know, specify anti-deficiency laws figure out whether a home mortgage lender may look for a deficiency judgment after a foreclosure. We similarly know that an Insolvency Discharge will secure that property owner from such liability regardless of what the debtor's state statutes need to state worrying whether a mortgage loan provider might seek a shortage judgment.
While defense from post-foreclosure liability to the home mortgage lender stays an effective benefit offered by the Personal bankruptcy Discharge, a relatively new source of post-bankruptcy petition liability has actually arisen in the last number of years. One that our customers are all too often shocked by if we neglect to offer significantly detailed suggestions before, during, and after the filing of an insolvency petition.
What I am talking about, naturally, are Homeowners Association dues, and to a lesser extent, municipal water and trash charges. As we all must understand well, such recurring charges build up post-petition, and exactly due to the fact that they recur post-petition, they constitute new financial obligation-- and as new debt, the Insolvency Discharge has no effect whatsoever upon them.
The common case involves a Chapter 7 personal bankruptcy debtor who chooses that she or he can not perhaps manage to keep a house. Possibly this debtor is a year or more in financial obligations on the first home 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 offer a loan modification in spite of months of effort by the house owner. The house in all probability will not deserve the protected quantities owed on it for decades to come. The month-to-month payment has actually adjusted to an installment that is now sixty or seventy percent of the debtor's household income. This home needs to be given up.
The issue, naturally, is that surrender in personal bankruptcy does not equate to a timely foreclosure by the loan provider. In days past, say 3 and even just two years back, it would. But today, home mortgage lenders merely don't want the home on their books. I often imagine an analyst deep within the bowels of the home mortgage loan provider's foreclosure department taking a look at a screen showing all the bank-owned properties in an offered zip code. This would be another one, and the bank does not want another bank-owned property that it can not sell at half the amount it provided just 4 years earlier. We could go on and on about the recklessness of the bank's decision in having made that original loan, but that is another post. Today the property is a hot potato, and there is nothing the debtor or the debtor's bankruptcy lawyer can do to oblige the mortgage lender to take title to the home.
Thus the quandary. There are other parties included here-- most significantly, homeowners associations. HOAs have in many areas seen their regular monthly dues plummet 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 home and foreclose. Even if their lien was secondary to a first, or even a second home loan lien, in the days of home gratitude there was almost constantly sufficient equity in genuine estate to make the HOA whole. But no more. Today HOAs frequently have no hope of recovering overdue from equity in a foreclosed home.
So, where does this all leave the bankruptcy debtor who must surrender his/her home? Between the proverbial rock and a hard location. The lending institution may not foreclose and take the title for months, if not a century law inc debt consolidation year after the personal bankruptcy is filed. The HOAs dues-- together with water, garbage, and other municipal services-- continue to accumulate on a month-to-month basis. The debtor has typically moved along and can not rent the home. But be assured, the owner's liability for these repeating charges are not released by the bankruptcy as they emerge post-petition. And he or she will remain on the hook for new, recurring costs until the bank finally takes over the title to the home. HOAs will usually take legal action against the house owner post-discharge, and they'll strongly look for lawyers' fees, interest, expenses, and whatever else they can consider to recover their losses. This can sometimes result in 10s of countless dollars of brand-new debt that the recently insolvent debtor will have no hope of discharging for another eight years, must he or she file personal bankruptcy once again.
This issue would not develop if home mortgage loan providers would foreclose quickly in the context of a bankruptcy debtor who surrenders a home. We as insolvency attorneys can actually plead that lender to foreclose already-- or, even better, accept a deed-in-lieu of foreclosure, however to no obtain. They just do not desire the residential or commercial property. What recommendations, then, should we provide to debtors in this scenario? The options are few. If the debtor can hang on up until the residential or commercial property in fact forecloses previous to submitting bankruptcy, this would get rid of the issue. But such a hold-up is not a high-end most debtors can manage. If this choice is not available, the debtor ought to either live in the home and continue to pay his or her HOA fees and local services or if the residential or commercial property is a 2nd house, for instance, an effort to rent the property to cover these ongoing costs.
In the last analysis, the Insolvency Code never ever pondered this scenario. Nor did most states' statutes governing homeowners' associations. A solution under the Personal bankruptcy Code to oblige mortgage lending institutions to take title to gave up real residential or commercial property would be perfect, however given the issues facing this Congress and its political orientation, we can comfortably state that the possibility of such a legislative service is beyond remote.