Just spoke with an attorney

[Falcon]

With my situation, I qualify for a Chapter 7 Bankruptcy case. I currently own my home, but its worth much less than what I owe on it. Question is, if I do NOT reaffirm my mortgage (only 1 mortgage) does that put me into Chapter 13 since I wont be paying the $875 per month house payment? And is it considered "disposable income" since Ill have extra $875 that I wont be paying towards the home? I am a couple months behind on it, but I seem to be about $200 short every month to pay it anyway. Your thought?

[keptdigging]

This is really a question for an attorney because the answer may vary locally.

For one thing you don't necessarily have to reaffirm to stay in your house by continuing to pay the mortgage. In fact the general advice is to never reaffirm a mortgage... just keep paying if you want to stay. The mortgage certainly counts if you're going to be paying it.

Next, the means test is supposedly backwards-looking, so what you do going forward shouldn't matter. Except that judges and US Trustees have different opinions so there is no completely certain national answer.

Finally, worst case, if your mortgage payment no longer counts, where will you be living? You'll have SOME housing expense, and would be entitled to an actual rental (or estimate of it) expense on Schedule J and either that or the IRS guidelines for housing expense on the means test. These might be less, but they are not zero.