Nowadays, Chapter 7 bankruptcy is not a proper tool to be used to stop a foreclosure, especially since the bankruptcy law changes of 2005. However, under certain circumstances and with a courageous bankruptcy attorney, it can be used. In fact, it could be possible for the debtor to remain in the home for a year or two without having to pay any mortgage. And --- it could even be the case that the debtor could end up owning the home free and clear!
Obviously everyone has to live somewhere. Despite this clear fact, the bankruptcy law and cases are such that the court is NOT going to consider it necessary for the debtor to live in his home as part of getting a new financial start in life. So they will almost always give the home back to the bank (lender or creditor) even while the bankruptcy filing is going on. This of course means the debtor has to move and find a new place to live.
Bankruptcy Law Attorneys, Business Bankruptcy Attorney, American Bankruptcy Institute,
Well the way to avoid this is both simple and a little fuzzy. It all starts from the fact that no person (an intended creditor) can take any action against another person (an intended debtor) unless there is a legal action to do so. In the case of a home creditor versus a non-paying debtor home owner, the creditor wants to foreclose on the home and take it back. Naturally there has to be certain paperwork and procedures in place before the creditor can foreclose.
Just last year in 2010, there was, about, a half dozen or so big name creditors that temporarily ceased all of their foreclosures in America. The two main reasons are that they didn't follow procedures and they didn't have all the required documentation. Allegedly they corrected those problems and have since resumed their operations. But did they really fix the problems?
By filing Chapter 7 bankruptcy and fighting your home foreclosure, you will find out. How? Within your bankruptcy case, you are going to file what is called an adversary complaint against the home loan creditor. The goal is to have the judge rule that the creditor's debt is dischargeable.
Once it is ruled dischargeable, then the debtor does not have to pay that debt any longer. Since there is no debt to pay, then obviously the creditor could no longer bring a foreclosure action against the debtor.
With most state laws and or federal laws as well, the creditor must have the original grant deed in hand in order to bring a foreclosure action. More often than not, the current home loan creditor does not have the original grant deed. Just because the home owner debtor has made X number of months or years of mortgage payments for that home does not mean the creditor does not need that original document.
So the adversary complaint within the bankruptcy filing seeks to have the creditor produce all the original documents. Plus, produce all written and other proof as to their internal training and procedures used to make decisions on foreclosures and following the law. This type of lawsuit will easily take 1 to 2 years before it goes to trial in the bankruptcy case.
Clearly if the debtor is successful in this suit, they will have stayed in the home for a while without paying any mortgage. The best case is the debt to that particular creditor is wiped out, and there are no more mortgages. That is how to file a Chapter 7 bankruptcy and take care of your home foreclosure!
Is Bankruptcy Right For You? Talk to Bankruptcy Attorneys Free and Confidential. Licensed bankruptcy attorneys are available. Attorneys will call you to discuss your case for free. Find out if bankruptcy is right for your situation.
Rating of Chapter 13 Bankruptcy Rules
Get Online Application at online Bankruptcy Lawyer.
0 comments:
Post a Comment