Mary Carollo: Decided to File Bankruptcy

If you’re in the middle of a short sale or just about to do one, you probably have a lot of questions. What is the difference between a short sale and a foreclosure? And what happens if you might file bankruptcy, as well?

The benefit of continuing with a short sale after you’ve decided to file for bankruptcy will hinge on the type of bankruptcy you plan on filing.

Short Sale and Chapter 7 Bankruptcy

If you have decided to file for Chapter 7 bankruptcy and are currently trying to sell a home via short sale, there is usually no reason to continue with the short sale. The purpose of a short sale is to relieve the borrower’s obligation to pay the difference between the sale price of the home and the mortgage amount when the property is “underwater” or worth less than what is owed.

Bankruptcy gives the borrower the option of surrendering the property back to the bank with no continuing obligation under the mortgage and no corresponding tax liability for the forgiveness of debt (usually a taxable event). In essence, surrendering a home in bankruptcy allows the borrower to simply give back the keys and walk away, leaving the purpose behind the short sale moot.

Bottom line: If you are going to file Chapter 7 bankruptcy, why deal with the stress of negotiating a short sale? However, if you still live in an area where homes are severely underwater and there is a backlog of foreclosures, it could make sense to go through with a short sale to get title out of your name. When a home is surrendered via bankruptcy, the bank still must foreclose to remove the owner’s obligation for HOA dues, etc.

Short Sale and Chapter 13 Bankruptcy

The analysis of a short sale bankruptcy is slightly different in a Chapter 13 setting. Chapter 13 bankruptcy allows the debtor to surrender a home, as well; however, any remaining deficiency judgment after foreclosure will be paid out as unsecured debt through the Chapter 13 plan.

Let us explain. Even though the property is being surrendered, the bank is still obligated to foreclose to clear title. The foreclosure process will result in a sale of the property. If the sale price is less than what is owed on the mortgage, a deficiency judgment results. Subject to state law, outside of bankruptcy, the borrower would be personally liable for the entire amount of the judgment. Generally, a Chapter 7 bankruptcy will eliminate all unsecured debt including deficiencies after a foreclosure.

By contrast, in a Chapter 13 bankruptcy, the deficiency between the foreclosure sale price and mortgage amount will be paid out as unsecured debt, at far less than 100%. Because the debtor will still be responsible to pay some of his or her unsecured debt through the plan, a short sale that slashes this debt before bankruptcy remains beneficial. Therefore, if a borrower can negotiate a short sale prior to filing for Chapter 13 bankruptcy, she will reduce her plan payment by reducing her unsecured debt.

Bottom line on Chapter 13 and short sales: Completing a short sale before this chapter of bankruptcy has the potential to lower your plan payments.

Before You File Bankruptcy Talk to a Bankruptcy Lawyer

It is always wise to consult with an experienced bankruptcy lawyer if you have questions, whether they be related to a short sale or foreclosure as it concerns your bankruptcy petition. Filing for bankruptcy can be complex, so you’ll want the assistance of a qualified attorney to guide you through the legal process and ensure you fill out all the paperwork correctly and disclose all your assets.

Free Consultation with a Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you. Come in or call in for your free initial consultation.