Lien Strip if only one of joint owners is filing Chapter 13

[freshstart40]

We are filing a 13 based on the advice of several attorneys; we're working with the one we are most comfortable with, if being comfortable in this situation is even possible.

Basic background is that we have been running 60 days behind on our mortgage payments for about a year as a result of my husband being out of work for 4 months two years ago. (We just "missed" the third outstanding payment at the advice of our attorney) Also, we had applied for a loan mod and one year ago received notice that it was granted and then it was revoked. We worked out what we thought were arrangements with the mortgage company that would get us out of this but it really got us farther behind.

We don't have very much credit card debt in the grand scheme - about $12K total, but we are so underwater in our home that it looks like the lien strip is very possible. Zillow shows our home at $262K, we owe $268 - highest comp in the area in the last year was $217.

Our attorney is recommending that we only file the 13 for me at this time so that we have the ability to "stall" in the future with a filing for my husband if one of us loses our job or something else changes.

He has assured us that the lien strip is possible with just me filing, but we are concerned that the mortgage company might try to come back after him later if he isn't included in the filing. Has anyone had experience with this?

Thanks in advance for your help. Obviously, this is very stressful because we really have tried to do the "right" thing and it just isn't working out - this seems to be our best option.

In case it matters, lender is IndyMac/OneWest but we have a pretty low interest rate (4.75) on the first and since we are both working, we doubt they would do a mod now when they wouldn't before.

[ccfriend]

I filed without my husband and my lawyer stated that we cannot lien strip without both of us filing. He stated that the mortgage company could still come after my husband. Maybe he just didn't want to have objections...that is interesting that your lawyer says it is ok. Let me know what happens. There might be hope for me!

[freshstart40]

That's what we're worrying about -- not sure how to find out the correct info, though. Our lawyer seems to know what he's talking about but I'm very nervous about it. Before we "missed" this last payment, this is the only reason we were going to file a 13. I know it will also do other things for us that are good - like roll our arrearages into the plan, but we really had never considered it until several different people told us the lien strip was very possible in our case. I'll be interested to hear what others say on here.

Thanks!

[freshstart40]

Also - I wonder if this varies by state. I'm in Maryland. I found some info on Arizona - pretty clear that both parties have to file. Actually, that's what makes sense to me. I suppose we need to push our attorney harder on this issue.

[daytona]

It depends if you are both on the mortgage note and certainly what state you are in.

[justbroke]

Yes, if you're in a community property State or there are certain things with how it was titled (joint tenancy, TBE, etc) can affect them. In a very general sense... stripping a lien when filing as a debtor-spouse (and not jointly) is like handing your non-debtor spouse a hot potato.

The key is on how aggressive the 2nd comes after the non-debtor spouse. Eventually, I think the non-debtor spouse will need to file for bankruptcy protection. Again, community property States and how the property is titled and what State you're in, may affect all of this.

[daytona]

However if only you are on the mortgage note, and in a non community property state, then your spouse would NOT be responsible. Title does not matter...only who is on the note assuming BOTH of the prior conditions are met.