If you own a home and you're current on your mortgage payments, you'll probably be able to keep it whether you file a Chapter 7 or a Chapter 13 bankruptcy. Read on to learn about the requirements under each chapter.
Chapter 7 cases are often more attractive because they’re quicker, easier, and get you on the road to financial stability sooner because you don’t pay into a three- to five-year repayment plan. You’ll be able to keep your house as long as you meet the following criteria:
Chapter 7 bankruptcy does have some limits as a tool for managing mortgage debt, however. It won’t help you catch up past due payments, and it might be difficult to protect the house if you have a lot of equity in it (the bankruptcy trustee will sell it and use the nonexempt equity to pay other creditors, such as back taxes, credit card balances and personal loans).
Chapter 13 bankruptcy can be a better choice to address both those issues so you can keep the home. Chapter 13 might also give you the opportunity to get rid of second or third mortgages.
If you’re behind on your mortgage payments and you want to keep the house, Chapter 13 bankruptcy provides a mechanism for helping you get caught up—something that Chapter 7 bankruptcy cannot do. In Chapter 13 bankruptcy, you propose a payment plan that will allow you to pay your creditors over three to five years. You can treat your mortgage arrearage as a separate debt and add it to your payment plan.
Using the Chapter 13 plan to catch up your arrearages will only work if you have the income to make both your regular monthly mortgage payment and your plan payment while you’re in bankruptcy. Your mortgage creditor can’t take any action to foreclose the mortgage as long as you’re paying your house and plan payments on time and otherwise keeping to the terms of your mortgage, like ensuring that you have homeowners insurance in place.
In a bankruptcy case, you can often protect an asset by claiming a bankruptcy exemption for it. Each state has its own list of exemptions. The types of property and the amount of value you can protect vary widely. Only a few states allow you to keep all of your home equity when you file bankruptcy. In most states, the maximum you can exempt is much lower.
In a Chapter 7 case, if the exemption isn’t enough to cover the entire amount of your equity, the court-appointed trustee could sell it and use the proceeds above your exemption amount to pay off some of your unsecured debt, like credit cards and medical bills.
Chapter 13 bankruptcy works differently. You won’t be forced to give up any property. Instead, you’ll pay out the nonexempt portion of the equity over the course of your plan. Of course, if you have significant nonexempt equity, this could get expensive. You’ll have to demonstrate that you have enough income to pay all amounts required in your plan.
Example. You have $50,000 in equity in your house but the maximum amount you can exempt is $30,000. You'll have to structure your Chapter 13 payment plan so that your unsecured creditors will receive at least $20,000 over the life of the plan. That amount is in addition to any other debts your plan payment must cover, like mortgage arrearages, car payments, past due child support, or back taxes.
To learn more about what happens to your home in a Chapter 13 case check out Your Home and Mortgage in Chapter 13 Bankruptcy.
If you have a second or other junior lien on your homestead, you might be able to get rid of it through a process called “lien stripping.” This is only available in a Chapter 13 case, and only when your property is worth less than the balance of the primary loan.
To strip the lien, you'll have to file a motion in the bankruptcy court and present evidence on the value of the property and the mortgage loan balances. If the court voids the junior lien, the debt you owe to that creditor will be treated in the Chapter 13 case as if it were unsecured. Any remaining balance will get wiped out with other qualifying unsecured debt at the end of the case.
You can learn about alien stripping at Getting Rid of Second Mortgages in Chapter 13 Bankruptcy.