Lein Stripping After the Fact?

[chloe0724]

Would there be a way to modify the chapter 13 plan and get our second stripped? When we filed, the second was not completly unsecured. Now it's totaly. Would I have to start the whole 13 over again if I wanted to do this?

Also, I only filed the 13, husband did not, would a lein strip still work in that case?

[chloe0724]

ANyone?

[Gerry]

Here's a thread about this from my bookmarks: http://www.bkforum.com/showthread.php?t=36946

[ccfriend]

I asked a question similiar to this a few weeks ago. The response I got basically stated that you have to have had an appraisal done around the time you filed in order to do the lein strip and it goes by the market at the time of your filing.

[justbroke]

Here's a thread about this from my bookmarks: http://www.bkforum.com/showthread.php?t=36946

Thanks for this post, as I didn't want to re-type what I wrote in the prior posting.

[HHM]

You can always modify your plan to strip the second, but the VALUE of the home for lien strip purposes is set at the TIME OF FILING. So on the day you filed your BK, was the home worth less than was owed on the first mortgage.

If your spouse was on the second mortgage, then the spouse must have been a debtor in BK.

[chloe0724]

Thanks for all th information.

I want to just clarify a few things.

If I never had an apprasial done at the time of filing, then it's impossible.

And if my husband didn't file, but is on the mortgage, it's also impossible.

[HHM]

If I never had an appraisal done at the time of filing, then it's impossible.

Not impossible, but more difficult. The MLS system does keep historic data plus you can always go back in county records. It can be done, but its a little more time consuming and more expensive to do.

And if my husband didn't file, but is on the mortgage, it's also impossible.

I believe this to be the case. I can see a potential argument to get around this, but I don't think a judge would buy it. And practically, I am not sure it matters. Lets assume you were able to strip the second without your husband filing. (1) He is still personally responsible for the debt. (2) If he stops paying, they sue and get judgement, (3) they turn around and put a judgment lien on the home. Thus, your husband would then need to settle or file chapter 7 (assuming he would qualify) to remove the judgment lien. Net result, you either pay the 2nd, settle with the 2nd, or husband files a BK.

[justbroke]

Not impossible, but more difficult. The MLS system does keep historic data plus you can always go back in county records. It can be done, but its a little more time consuming and more expensive to do.

I would only amplify what HHM wrote, and add that you will be in for a fight with the creditor (lender) over the valuation. Expect to spend lots of money on an Adversary Proceeding and bring expert witnesses to attest to the value.