What if I Get Behind in My Mortgage Payment While in Bankruptcy?

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We understand that sometimes after filing bankruptcy different situations come up that may cause you to fall behind on your mortgage payment. It’s important to realize there are a number of consequences that come from falling behind on your bankruptcy. We will look at them depending on which type of bankruptcy you file, a Chapter 7 bankruptcy or a Chapter 13 bankruptcy.

Chapter 7 Bankruptcy:

In a Chapter 7 bankruptcy, one must be current on their mortgage payment at the time of filing and throughout the duration of the bankruptcy in order to keep the house. If you were to fall behind on your mortgage payments there would be two important time periods to consider. In other words, you need to know where you stand in the bankruptcy.

Before the Final Decree (End of Bankruptcy):

If you fall behind on your payment before the bank has received the final decree, the mortgage company could potentially take legal action.  The mortgage company may choose to file a Motion for Relief from Automatic Stay.  In other words, they would be asking the court for permission to begin foreclosure proceedings on the home.  The Motion for Relief from Automatic Stay will likely be granted to the mortgage company unless you are able to bring the payments current by the hearing date.

After the Final Decree (End of Bankruptcy): 

If you fall behind on your payment after the Final Decree, then it’s the same as if you haven’t filed bankruptcy.  The mortgage company no longer has to ask for permission from the court to begin foreclosure since your bankruptcy is over once the Final Decree is entered.  Therefore, the mortgage company would decide when they wanted to begin foreclosure proceedings on the home.

Prevention:

Be aware of when your mortgage payments are due each month and make a valuable effort to make sure they get to your mortgage company on time. It is common in Chapter 7 bankruptcy for the mortgage company to stop sending statements and/or to stop automatic drafts. You should keep an eye on your automatic drafts to be sure your payments are being made on time. Be sure you pay the mortgage payment on time every month, even if you do not receive a bill or a statement.

Chapter 13 Bankruptcy:

What’s important to consider in a Chapter 13 is at what point in the bankruptcy you have fallen behind on your payment.

Not Behind at the Time of Filing Bankruptcy

If you are not behind at the time your Chapter 13 bankruptcy is filed, the mortgage payment will not be included in your monthly payment to the Trustee.  This is considered “paying outside of the plan” since it will continue to be paid as a separate payment.  You will continue to make a separate payment to the mortgage company only if you are current at the time of filing and throughout the duration of the bankruptcy.

Behind at the Time of Filing Bankruptcy

One reason why people choose to file a Chapter 13 bankruptcy is because they are behind on their mortgage payments and need to get caught up.  If you are behind on your mortgage payment at the time of filing, it will be included in your Chapter 13 monthly payment to the bankruptcy Trustee.

Not Behind at the Time of Filing But Later Fall Behind

If you are not behind on your mortgage payment at the time of filing but then fall behind during the bankruptcy, your Chapter 13 monthly payment will increase.  The mortgage company is a secured debt and must receive a monthly payment. Therefore if you fall behind it then needs to be included in your Chapter 13 monthly payments.  Your monthly payment to the Trustee will increase, because the mortgage company is one of the first creditors to receive payment. The Chapter 13 office will request that the mortgage company be added to your monthly payment, which will increase as a result.

Prevention:

If you are making your mortgage payments “outside of the plan,” or in other words, making separate payments to the mortgage company, be aware of when they are due and be sure the mortgage company receives your payments on time. As we discussed in the Chapter 7 section, it is common for billing statements and/or automatic drafts to be stopped during bankruptcy, so be sure you pay the mortgage payments on time, regardless of whether you receive statements.

What is a Consent Order?

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A Consent Order is an agreement between you (usually written up by your bankruptcy lawyer) and the mortgage company or homeowner’s association to allow you to get caught on any Chapter 13 bankruptcy payments so you can keep your house. There are a few situations to be aware of when it comes to getting together a consent order.

Charlotte Office Clients:
If you filed a Chapter 13 bankruptcy before July 1, 2009, your Chapter 13 payment does not include your monthly mortgage payment(s) on your house. You must make your mortgage payments directly to your mortgage company. If you have homeowner association dues (HOA), you must also make your payments directly to your homeowners association.

If you filed a Chapter 13 bankruptcy on or after July 1, 2009, your mortgage payment is included in your Chapter 13 payment to the Trustee.

Greensboro Office Clients:
Your Chapter 13 payment may or may not include your mortgage payment. If you were behind on your mortgage payments when you filed the bankruptcy, then your Chapter 13 payment will include your mortgage payment. If you were not behind on your mortgage payments when you filed the bankruptcy, then you had the option of paying the mortgage payment yourself or including the mortgage payment in the bankruptcy. If you are unsure, check with your attorney. If you have homeowner association dues (HOA), you must make your payments directly to your homeowners association.

Charlotte and Greensboro Office Clients:
If you fall behind on your mortgage or HOA payments, the mortgage company or HOA will file a Motion for Relief from Automatic Stay asking the court for permission to foreclose on your property. If your mortgage company or HOA files a Motion for Relief from Stay it is very important you contact your attorney immediately. In many cases your attorney can work out a Consent Order with the mortgage company or HOA’s attorney that would allow you to catch up on the payments you are behind. Your attorney cannot work out a Consent Order with the mortgage company or HOA’s attorney without your assistance and agreement on the terms. The Consent Order may give you one last chance at keeping your property. Failure to comply with the terms in the Consent Order will result in the mortgage company/ HOA getting relief from the automatic stay and being able to proceed with foreclosure.

Contact us today for more information on what happens if you get behind on your mortgage payments while in bankruptcy.