Stopping Foreclosure With Chapter 13 Bankruptcy
Tennessee allows for non-judicial foreclosure. Therefore, your lender does not have to go to court in order to foreclose on your property. The usual process is for you to receive notice by mail 20 days or more before the scheduled auction date. A trustee performs the actual sale, not the lender.
At any time before the sale is performed a person who owns the house in foreclosure may file a Chapter 13 bankruptcy and stop the foreclosure sale (there are a few exceptions to this, but it need not concern us here). The reason filing a Chapter 13 bankruptcy stops the sale is because when a person files a bankruptcy an automatic stay goes into effect. The automatic stay stops most creditor actions against the person and the property the person owns. This means the foreclosure sale cannot take place or is voidable by law if it does take place.
In order to file a Chapter 13 bankruptcy there are several things you need to do and bring to your bankruptcy lawyer. At a minimum you must have filed your taxes that were/are due in the year you are filing bankruptcy. You must also bring a copy of the tax return or a tax transcript indicating that you did file. You must also bring a list of ALL of your creditors. You are also required to have the last 2 months of pay stubs if you receive regular wage income. Finally, you need to have a government issued photo ID and a social security card.
Chapter 13 differs from Chapter 7 by having a repayment plan. You propose to pay your creditors, including your mortgage lender, in the Chapter 13 Plan. The Plan will always include paying the regular mortgage note plus an amount that will be enough to pay off the arrears over the life of the Plan – up to 60 months.
For any property you wish to keep that has a lien on it you must pay for that property. The debts owed on these properties are “secured” debts – these include a mortgage and debts owed on cars. “Unsecured” debts are not backed by any property. You may be able to pay less than 100% of these debts, depending on certain things – like your current income, your income over the last 6 months, and the value of all your property.
Some property, like cars, can be subject to a “cram-down” in a Chapter 13 bankruptcy. A debt is crammed down when the secured debt is reduced to reflect the value of the property rather than the actual amount owed. An example would be a car that has a payoff amount of $20,000 but the car is only worth $10,000, the cram down would result in a secured debt of $10,000 and an unsecured debt $10,000.
Once you propose a Chapter 13 Plan it must be “confirmed” for it to go into effect. Once a Chapter 13 Plan is confirmed the Chapter 13 Trustee begins to distribute your funds to your creditors. You make payments to the Chapter 13 Trustee either directly or through a wage deduction.
Once you have paid into your Chapter 13 Plan as you proposed and completed all payments you will be current on your mortgage. At that time you will resume paying your mortgage directly to the lender. Any unsecured debts that were not paid during the bankruptcy will be “discharged” – meaning creditors cannot take any action to collect the debts.