What Happens to Mortgage Debts After Bankruptcy Discharge?

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What Happens to Mortgage Debts After Bankruptcy Discharge?

In law, things are not always what one might think they should be.   

To non-attorneys, it sometimes must seem like what Alice (of Wonderland fame) saw through the looking glass.

A common source of confusion among my bankruptcy clients relates to what happens to secured debts that have liens against property owned by the debtor filing bankruptcy after a discharge of debts is granted.

Mortgage Debts are Dischargeable in Bankruptcy…but…..

Mortgage and Other Secured Debts Will be Discharged

A while back I discussed which debts are dischargeable in bankruptcy.

Mortgage debts, and other secured debts–such as those on vehicles–are also dischargeable in bankruptcy in most cases.   This means that the obligation to pay on the underlying mortgage (or other secured) debt is extinguished if you receive a discharge in bankruptcy.

“What?” you say.  “Does this mean I don’t have to pay my mortgage or car payments anymore?”

You Must Keep Making Payments if You Want to Keep Your House or Other Secured Assets

Well, you don’t have to pay them if you don’t want to keep the asset (home, car, etc.), but if you do want to keep the asset, you must stay current with payments (and, in the case of certain vehicle lenders, you may need to enter into a reaffirmation agreement to prevent repossession).  Reaffirmations remove the debt from bankruptcy and make it non-dischargeable.

A Lien is Not a Debt and a Debt is Not a Lien

The reason people get confused by this is a misunderstanding (or lack of awareness of)  the difference between a debt and a lien.  They are very different animals.

For example, a mortgage is a lien which is secured by collateral (usually the property on which the mortgage loan was given) for the amount owed on the loan (debt).   Similarly with vehicles, for example:  The debt owed to the vehicle lender is usually secured by the vehicle, thereby creating a lien.

Discharges Eliminate Debts, Not Liens

Here’s the legal explanation:  From a purely legal standpoint (and there’s just no way to make this simpler), a bankruptcy discharge removes the ability of creditors to seek to collect against the debtor individually (known as in personam liability).  Liens, on the other hand, are in rem meaning they are rights against property.

There are ways to remove specific types of liens in bankruptcy, but they are NOT automatic and it are limited.¹

Thus, in a typical case, debts owed to mortgages and vehicles will be discharged.  What this means is that in the event you stop making payments and the creditor forecloses or repossesses its collateral, or it is otherwise sold, you will owe nothing further.

But as long as you remain current with required payments, you can retain use of the collateral (again with the limited exception of the vehicles listed above).

So, when you understand how liens work, it makes more sense and less like the Mad Hatter himself was writing the laws.

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¹  For example, judgment liens can be removed if they impair an exemption to which the debtor is entitled on the date the case is filed; consensual mortgage liens can be removed on a principal residence only if they are junior liens and only if the value of the property is less than is owed to the senior mortgages, and only in a Chapter 13 or Chapter 11 case.  There are other lien avoidance possibilities as well.




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By | 2016-10-18T13:35:32+00:00 May 28th, 2013|Categories: Bankruptcy Law, Lien Avoidance, real estate issues|6 Comments

About the Author:

Attorney Mark Markus has been practicing exclusively bankruptcy law in Los Angeles, California since 1991. He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization, AV-Rated by martindale.com, and A+ rated by the Better Business Bureau. Google Plus

6 Comments

  1. suzie June 11, 2015 at 10:01 am - Reply

    Hi. I filed bankruptcy and was discharged. I was already in foreclosure proceedings. The trustee abandoned the home. Where am i ?. I am so confused i am responsible for past due amount if i wanted to reinstate mortgage. Pls help

    • Mark Markus June 11, 2015 at 10:36 am - Reply

      Yes, if you want to retain the property you must stay current with or reinstate the required mortgage payments. As my article indicates, the bankruptcy discharge does not affect the lien of the mortgage company (unless you stripped the lien in a Chapter 13 or Chapter 11 case).

  2. Mark Markus April 9, 2015 at 7:48 pm - Reply

    Of course. Unless you transfer title to someone.

  3. SHARON SALLIS April 9, 2015 at 5:17 pm - Reply

    Will I HAVE THE SAME RIGHTS OF OWNERSHIP AS LONG AS I STAY CURRENT ON MORTGAGE, WOULD I OWN THE HOME IF PAID IN FULL?

  4. SHARON SALLIS February 3, 2015 at 3:42 pm - Reply

    MY BANKRUPTCY WAS DISCHARGED JAN 6 2015, BUT I REAFFIRMED MY MORTGAGE LOAN AND CAR LOAN, I JUST HAPPEN TO LOOK AT MY CREDIT AND FOUND OUT THAT THE MORTGAGE CO. HAD GOTTEN THE REAFFIRM LETTER LATE AND THE CONTACT THE LAWYER OFFICE TO EXTEND THE TIME, BUT THEY WOULD NOT THEREFORE MY MORTGAGE WAS AUTOMATIC ADDED TO BANKRUPTCY, MY QUESTION TO I STILL HAVE SAME RITES OF OWNERSHIP EXCEPT IF I STOP PAYING? I WAS TOLD THE ONLY DIFFERENCE IS IT WILL NOT BE REPORTED TO CREDIT COMPANIES, IS THAT TRUE? WOULD I BE ABLE TO SELL, BUY ANOTHER HOME IN FUTURE?

    • Mark Markus February 5, 2015 at 10:21 am - Reply

      Yes, you were discharged from the debt in the bankruptcy case. That does not affect the lien against the property and it certainly doesn’t affect how title is held. As long as you stay current with your payments to the mortgage company, and adhere to the other terms and conditions of your Promissory Note and Deed of Trust, then they have no right to foreclose.

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