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Short Sale Home Blogs

February 2, 2008

in Community Blog

short sale home blogs

Bankruptcy and Short Sales in Massachusetts and New Hampshire. How does bankruptcy affect your short sale? Interview with attorney

We have done enough short sales to see our fair share of bankruptcies occur. There is an impact to a homeowner’s credit and their short sale if they file bankruptcy. Homeowners in need of filing need to speak to an experienced attorney if they are considering bankruptcy as an option to stall a foreclosure or capture their deficiency from a short sale. I would even suggest they find a bankruptcy attorney that also specializes in Real Estate.

Rapid Property Relief, LLC works with several experienced attorneys. When we meet with homeowners facing foreclosure or with mounting debt, we always refer our clients to attorney’s who we have worked with in the past or that we know see the value of a short sale as opposed to foreclosure.

I was granted the distinct opportunity to interview one of the attorneys we work with and refer homeowners to. Attorney Jessica Greenwood, from the Law Office of Todd Beauregard, spoke with me about the impact of bankruptcy on a homeowner’s short sale. My interview is now (audio clip) live on our site for any homeowner who wants more information about a Massachusetts or New Hampshire bankruptcy.

Let’s go over the highlights of the interview:

Rapid Property Relief – Which homeowners should be filing bankruptcy?
Attorney Jessica Greenwood – There are three types of homeowners that should file a bankruptcy:

  1. The homeowner who can afford their mortgage, and are current on it but simply have a lot of credit card debt.
  2. The homeowner, who can afford their mortgage, however fell behind due to an unforeseen circumstance but has since recovered. Filing a Chapter 13 Plan can help to cure an arrearage and help a homeowner stay in their home.
  3. The homeowner who cannot afford to keep their home, they can file a Bankruptcy and surrender the home and be alleviated from the debt from the house.

Rapid Property Relief – Can you explain the difference between Chapter 7 and Chapter 13 for us?
Attorney Jessica Greenwood – In both cases it is necessary to determine income and asset protection levels,
this will help you structure your case and determine chapter.

  • Chapter 7: In order to file you must be below a median income that is defined state by state. Once you determine you are below a median income, you are able to list your assets, keep those which you are current on the payments and surrender those assets in which you decide you no longer wish to keep.
  • Chapter 13: A Chapter 13 case is a repayment plan of all or a part of the debt you owe. Unlike a 7, this requires some form of a payment plan. In this type of case, you can keep assets even if you are not current on the payment and provide for payment in the plan.

Rapid Property Relief – When would you tell a homeowner NOT to file bankruptcy?
Attorney Jessica Greenwood –

  • If a homeowner is in the middle of obtaining a loan modification, it is absolutely best NO to file until that is complete unless there is an emergency that would dictate otherwise.
  • If a homeowner has too much equity in their home or assets that the Bankruptcy Code does not provide protection for, it would not be advisable to file.
  • At times a homeowner has no other debt except for the home, and then I would not advise filing the Bankruptcy just to get rid of the home. I would suggest a short sale or a deed in lieu of foreclosure before the bankruptcy. Not all lenders are issuing deficiencies these days and it may be putting the cart before the horse by filing a Bankruptcy.
  • If the homeowner is attempting a short sale, and a foreclosure is impending then a Bankruptcy can stop the foreclosure and allow for more time for the short sale to go through
    Chapter 7 Bankruptcy – once filed the bankruptcy cannot be voluntarily dismissed by the debtor.
    —- i. By filing a complete petition before the foreclosure, requires the lender to abide by the Automatic Stay and postpone the foreclosure sale
  • Chapter 13 Bankruptcy – once filed the bankruptcy can be voluntarily dismissed by the debtor
    —-i. Some Attorney’s will file a Chapter 13 to obtain the “automatic stay” for the debtor and allow the case to dismiss without a discharge
    — ii. This is not advisable. (1) This is abuse of process of the system and the attorney and the debtor can suffer the consequences and (2) the debtor’s credit already has the ‘bankruptcy’ mark.

If a debtor’s income is too high for a Chapter 7, and needs the bankruptcy protection to stop or delay a foreclosure, then a Chapter 13 Plan can be formulated to pay off any other unsecured debt while surrendering the home and allowing the short sale to move forward

Rapid Property Relief – When should a homeowner in Massachusetts or New Hampshire file bankruptcy in conjunction with a short sale?
Attorney Jessica Greenwood – Unless the bankruptcy is needed to post pone a foreclosure, it is best to file the bankruptcy after the short sale

Rapid Property Relief – How and Why does a bankruptcy affect a foreclosure auction?
Attorney Jessica Greenwood – Once a debtor files for Bankruptcy, whether 7 or 13, the debtor has the protection of the “Automatic Stay”. This provides a ‘shield’ against the creditors. The creditors cannot foreclose, repossess or collect on any debt until the Automatic stay is lifted or the case is closed. Because of this Stay, the bank cannot foreclose on a home while under the automatic stay and thus the sale is postponed until the lender foreclosing gets relief from stay or the case closes.

Rapid Property Relief – How fast can someone file bankruptcy if eligible and facing foreclosure?
Attorney Jessica Greenwood – Bankruptcy filing is electronic and can be done in a very short time period, however, in order to file a list of documentation is needed and to draft a full petition does take some time. If an extreme emergency, an attorney can file a ‘shell’ petition; however there is a very limited time frame to supplement the filing.

In order to be prepared for all scenarios, a homeowner should closely watch the impending foreclosure date, and if it appears that a bankruptcy is imminent to stop the foreclosure OR imminent due to a large deficiency or credit card balance, the homeowner should consult with an attorney two weeks prior to the foreclosure date. This time frame will lessen the stress of the homeowner and the attorney attempting to help the homeowner.

Rapid Property Relief – How does a bankruptcy affect a person’s credit?
Attorney Jessica Greenwood – Bankruptcy is a notation on your credit report for 8 – 10 years. Most creditors are giving new credit almost immediately after a bankruptcy, however car loans and home loans you will likely need to wait at least a year or two before obtaining good rates. The best way for a debtor to recover from bankruptcy on their credit is to get a secured credit card immediately after the case discharges, making sure the secured credit card reports to the credit bureau, and if the debtor has secured debt they are keeping, keep the payments on time.

Rapid Property Relief – Credit wise what’s worse; Bankruptcy and a short sale or bankruptcy and a foreclosure?
Attorney Jessica Greenwood – Again, Bankruptcy is a notation on your credit report for 8 – 10 years. If you wish to be a homeowner again in the near future, it is better to short sale than to foreclose. Although foreclosure is sometime inevitable, if you can short sale first, it looks better on your credit in the long run (especially to mortgage companies).

Rapid Property Relief – What process does a homeowner follow if they are in the midst of a short sale and want to file bankruptcy?
Attorney Jessica Greenwood – If you file a bankruptcy in the midst of a short sale, you need to work with your attorney to ask the Trustee to “abandon the asset” from the bankruptcy estate. When you file a bankruptcy, all your assets become assets of the bankruptcy estate. Let the Trustee know you are working on a short sale with your lender and more than likely the Trustee will ‘abandon’ the asset and allow the sale. The rest of the bankruptcy will proceed.

Rapid Property Relief – Can a homeowner file bankruptcy YEARS after completing a short sale if the lender has “reserved the right to pursue the deficiency?
Attorney Jessica Greenwood – Yes. There is not a statute of limitations on how old the debt will have to be to discharge it.

Rapid Property Relief – It seems like some attorneys could care less about short sales if the homeowner files bankruptcy. Why do you think that is?
Attorney Jessica Greenwood – I can’t speak for all attorneys, just what I have seen …Going through a short sale can be stressful to a homeowner who is probably dealing with other stressors. The attorney may feel it is easier for a homeowner to just file a bankruptcy and let the lender foreclose. I tell my clients that if they work with the right short sale negotiator and realtors then it should feel just as seamless as allowing the bank to take it back.

Rapid Property Relief – What is the difference between deficiency and deficiency judgment in short sales in NH and MA?
Attorney Jessica Greenwood – Both states: When you sign a promissory note, you promise to pay back the entire balance, plus cost to the lender. Thus when a foreclosure occurs, or at times a short sale, the lender loses money and has the right to pursue collection efforts.

New Hampshire: The last law on the books for NH collection of a debt due to a mortgage loss is 20 years. Now, it is highly unlikely that a lender collects 20 years later, there are defenses to this such as ‘Laches’, an undue delay on behalf of the creditor. Most often it is within 1-5 years.

Massachusetts: The claim on a mortgage note followed by foreclosure is 2 years, however if they sue on that debt within 2 years and obtain a judgment, then its swiftly preserved for 20 years

Rapid Property Relief – What is your thought on approvals with boilerplate language that states the lender reserves the right to pursue the deficiency?
Attorney Jessica Greenwood – Boiler plate is what it is, boiler plate. You probably are not going to get a lender to remove the preserving language. The best way to protect homeowners is to read the fine print and try to get language in the short sale approval letter that states “ABC Lender will not, under any circumstance, pursue homeowner for loss sustained due to the sale amount of XX”

Rapid Property Relief – If a homeowner is considering a bankruptcy to stall a foreclosure, or capture deficiency from a short sale, when would you tell them to contact you?
Attorney Jessica Greenwood – The sooner the better! If you are entertaining a bankruptcy, the homeowner should have a consultation with an attorney at the beginning of the short sale process. This way, the homeowner is armed with all the knowledge they need with regards to the short sale process, the bankruptcy process, and how, if they have to be, are tied together.

We at Rapid Property Relief specialize in preforeclosure acquisition. We have see our fair share of homeowners file bankruptcy. What I’d like to add to the above information is if a homeowner files bankruptcy before the short sale is complete, the “stay” will add at least 30-60 days onto your short sale, provided you are still allowed to proceed with the short sale and only an experienced attorney will be able to tell you that.

Again, feel free to download the audio file of my interview with Jessica. There was a lot more information in the audio file and I streamlined it for this blog. If you are a homeowner considering bankruptcy, Jessica practices in Massachusetts and New Hampshire and can easily assist you. Please contact her today at:

If you are considering a short sale, I’m more than happy to work with you. We utilize attorneys, accountants, Realtors, and work as a team to assist you in the process. We keep all homeowner information confidential and treat you with the utmost respect.

About the Author

Contact Information:
Attorney Jessica Greenwood
Law Office of Todd Beauregard
25 Central Street, Lowell MA 01852
978-957-1919

And

92 Main Street, Nashua NH
603-557-1366

If you are considering a short sale, I’m more than happy to work with you. We utilize attorneys, accountants, Realtors, and work as a team to assist you in the process. We keep all homeowner information confidential and treat you with the utmost respect.

For more information on the short sale process you can log onto our website at http://rapidpropertyrelief.com – New Hampshire and Massachusetts short sales.
Maryann Little
http://massachusettsshortsales.net
http://twitter.com/quickbuyer

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