How Long Is A Foreclosure While In Chapter 7 bankruptcy
Submitted by: Smith Bryan on Oct 22, 2009 at 11:41 am
Tagged with: bankruptcy in california, chapter 7 bankruptcy, chapter 7 filing in california, DIY bankruptcy, file bankruptcy, file chapter 7 in california, file online bankruptcy, us bankruptcy company
Source: DIY4LAW- File bankruptcy
Houses and other property can be sold while someone is in bankruptcy, but there are specific rules that must be followed when you do it. You must get court approval before the property is sold. Until a final decree has been issued in a bankruptcy filing, the property will be tied up. The final decree may not have been issued even though the bankruptcy debtor has received a bankruptcy discharge. Permission from the bankruptcy court must be sought even if the secured lender, usually a mortgage company, has filed a motion for relief from the automatic stay. If relief from the automatic stay was granted by the bankruptcy court it means that the creditor can force its rights under the state law, but the property is still controlled by the bankruptcy laws for all other people, including the debtor.
In most cases, a bankruptcy will usually delay any foreclosure process. This is because when a bankruptcy case is filed, a restraining order is entered under 11 USC 362 called the automatic stay, which prevents any further debt collection efforts against debtors or their property. So if someone is facing foreclosure, a bankruptcy will immediately freeze the process. This may be permanent, as in most Chapter 13 cases, or it may be temporary, as in most Chapter 7 cases. The reason most Chapter 7 restraining orders are not permanent is due to the fact most Chapter 7 cases are over within four months time, and or, the lender will file a motion for “relief of the automatic stay” which will remove the restraining order against that lender on the property.
The typical foreclosure is four months. Add to this the 2 to 4 months of being in default before the process is started, and most people generally will not be foreclosed on in under eight months. After foreclosure, the lenders still needs to evict the debtor, which may take another month or it so if you add a bankruptcy to the nine-month foreclosure process, it's not surprising to see debtors in their homes for a year or more from when they last stopped paying. Moreover, since the bankruptcy has erased the personal liability of the debtor, there is no recourse the lender has against the borrower even if the foreclosure results in less than full payment on the loan. Additionally since some states have the one action rule, even post bankruptcy claims arising from staying in the property without paying will not result in any liability to the debtor.
When a person is in bankruptcy, the lender's choice is to non- judicially foreclose and forever give up their claim for money damages against the debtor, or, to judicially foreclose in a court of law and obtain a deficiency judgment against the borrower. Virtually all foreclosures are non-judicial foreclosures since the judicial foreclosure is very time-consuming, and even when the lender prevails, the debtor still has a one-year right of redemption, whereby the borrower can come back within one year, tender the amount due, and get their property back.
So if you are surrendering your house in Chapter 7, you can pretty much expect to stay there for at least six months to a year from your last mortgage payment. This monthly savings truly gives debtors a bankruptcy fresh start.
Read more about how to file chapter 7 bankruptcy yourself. Visit www.diy4law.com for more details.