Sunday, September 27, 2020

HELOC & Second Mortgages After Bankruptcy

 

https://www.avvo.com/legal-answers/authorized/heloc-dilemma--should-i-try-to-settle-or-will-we-s-4992316.html?answered=true

Heloc dilemma? Should I try to settle, or will we start a massive problem?    Went through a chapter 7 in 2007 because of a dissolved business. The credit unions assets went to another credit union during the 2008 credit crisis. No contact for 13 years with the new credit union. Now looking at new business ventures and want to work on issues from the past. Have 215k equity in the house now. Afraid of stirring up a hornet’s nest owe 50k on the Heloc from 2006 but don't want to get foreclosed either. Any thoughts on what to do. I'm assuming...

No lawyer could intelligently advise you without first seeing a title report on your property.  My experience is that clients rarely understand or recall what they signed over the years, so their understanding as to junior liens such as HELOC's was wrong as often as not.  Some have ended up with as many as three or four junior mortgage liens, all of which survive bankruptcy. Even though the personal claims of the lender against them were normally discharged in past bankruptcies, the property liens don't go away, until after a foreclosure by a first lien holder, which is the only thing that can clear the title of all past claims. Unfortunately, at present, your "equity" might only exist in your imagination.  Junior lien claims against property are just as strong as first mortgages, so if the first is paid off, the junior one (which might have been the HELOC), moves into first place, and will need to paid in full with interest before you can ever sell or refinance the property, just like a first mortgage—there is absolute no difference between them legally, other than the issue of who recorded with the register of deeds earlier.  Chapter 13's, however, can sometimes strip away junior liens which exceed the property's value, causing more junior one to be declared unsecured, so that is what you should investigate.

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