Walk out of bankruptcy debt-free? Maybe, but if you don’t pay the mortgage then you’ll still lose the house.
When you take out a loan to buy real estate, the bank takes a lien out on the property. Fail to pay the mortgage and the bank will foreclose on the lien to take back the property.
That lien is called a mortgage, and it’s a document that’s filed in the same place where the deed is filed. It differs from the promissory note, which is the promise to repay the money.
Related: Liens Explained
Fail to pay the money, and the bank uses the mortgage to foreclose.
The Effect Of Bankruptcy On A Mortgage
If you file for Chapter 7 bankruptcy, you will discharge your personal liability for repayment of the promissory note. A failure to pay the bank after your discharge will lead to a foreclosure, but the bank won’t be able to sue you for the deficiency if your state law allows for one (California doesn’t allow for deficiency judgments after foreclosure).
In the case of a Chapter 13 bankruptcy, the end of the case cures any mortgage arrears but doesn’t necessarily wipe out your obligation to pay after the case is over.
What The Lender Gets After Bankruptcy
The bankruptcy discharge wipes out your personal liability under the Promissory Note.
After the bankruptcy discharge, the creditor with a lien can exercise its rights to foreclose if you don’t pay.
So the lender gets the house, but not a hand in your pocket.
Keep Paying If You Want To Keep The House
If you don’t pay the mortgage, the bank will foreclose. So if you want to keep the house, keep paying.
If not, then you can let it go after your Chapter 7 bankruptcy case.
If you’ve gone through a Chapter 13 bankruptcy, the best bet is to provide for the surrender of your interest in the property through your Chapter 13 Plan.
Either way, it’s important to know that liability for a deficiency – which doesn’t exist in California anyway – differs from keeping your home.
The discharge doesn’t prevent foreclosure.
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