Legal Question in Real Estate Law in California

I have filed bankruptcy and walked away from my home, but the mortgage company refuses to take the property. What can I do to release liability and relieve myself of this burden?


Asked on 10/07/10, 3:53 pm

2 Answers from Attorneys

Terry A. Nelson Nelson & Lawless

You already bankrupted on the property and owe the bank nothing, if you properly filed without requesting to keep the loan. You shouldn't be making payments. If you didn't properly file, you'd better go back to your BK attorney and request to reopen and amend your filing to do so.

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Answered on 10/12/10, 4:33 pm
Anthony Roach Law Office of Anthony A. Roach

The previous response is problematic.

Filing a petition in bankruptcy triggers the automatic stay. It also creates an estate in bankruptcy. The automatic stay operates as an automatic injunction to prohibit creditors from taking any action against the debtor, while the stay is in effect, and from taking any action against the bankruptcy estate.

This means that the bank is prohibited by law from foreclosing either judicially or nonjudicially against you while the stay is in effect. I don't know what you mean by walking away, as title to the property appears to be in your name, and still subject to what is most likely a deed of trust, naming the bank as a beneficiary. The lender can file a motion with the bankruptcy court, and seek to lift the automatic stay, to proceed by way of trustee's sale, or to sue you in court for foreclosure and the deficiency, if the bank is entitled to one. Further, anti-deficiency legislation would not protect you in a lawsuit by the lender for fraud, or bad faith waste. A judgment against you for fraud is not dischargeable in bankruptcy.

I suggest speaking to a bankruptcy attorney, as it sounds as though you are representing yourself.

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Answered on 10/14/10, 11:42 am


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