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Lien Strip question when only one spouse filing

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    Lien Strip question when only one spouse filing

    Hi all,
    I have a friend who is thinking of filing but realized that a house that her husband has 1/2 interest in (no mtg) which could be a problem for them if they both filed. So she is thinking of filing by herself. The only debt they have together is the 2nd which would be stripped. How does this affect them if she is the only one filing? The 1st is in her name only. Would the 2nd lien holder come after him since he did not file? Or, because the 1st is under water does it even matter?
    Thanks!
    Filed CH13/5yr 7/29/10
    341 10/7/10
    Confirmed 11/7/10

    #2
    Let's back up, is the husband on the 2nd mortgage.

    If yes, it is highly, highly questionable whether a lien strip is possible. I really don't think a 2nd mortgage can be stripped when only one of the obligee's is filing. That outcome may be a bit different in a community property state like CA.

    Comment


      #3
      HHM. I don't think she knows that....she is still in the consultation phase and had asked me about this...I didn't have a clue. Yes, hubby is on 2nd not 1st though.
      To clarify, her husband has a separate house with 1/2 interest. The house they are living in is where she is on the 1st and they are both on the 2nd.
      Last edited by tammygirl1; 04-16-2012, 02:57 PM.
      Filed CH13/5yr 7/29/10
      341 10/7/10
      Confirmed 11/7/10

      Comment


        #4
        I don't think she will be able to strip mortgage if husband doesn't file. So the plan may be a non-starter from the get go.

        In a community property state, like CA, the non-filing spouse receives the benefit of the discharge of joint debt. So in that sense, the 2nd mortgage won't be able to come after husband. At least, not come after any property that is community property. If the husband has separate property, that is still fair game (e.g. inheritance, gifts etc.) for the 2nd mortgage to go after. So in that sense, if the husband has a separate interest in this "other" house, the 2nd mortgage could pursue him for that interest notwithstanding the wife's BK.

        The same argument "might" apply to the 2nd mortgage lien strip. E.g. since the primary residence is community property, the lien strip can be made by one spouse. But I am not sure that is the case. The general rule seems to be that if your going to do a lien strip, both debtors of a mortgage must file BK.
        Last edited by HHM; 04-16-2012, 04:04 PM.

        Comment


          #5
          Thanks for the feedback. Looks like a simple filing is turning into a complex one...
          Filed CH13/5yr 7/29/10
          341 10/7/10
          Confirmed 11/7/10

          Comment


            #6
            That's usually the case.

            Comment


              #7
              sencond mortgage stripped

              I had my second mortgage stripped and I am the only one that I filed a chap 13 (We are both on the mortgage) I live in ny

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