Legal Question in Bankruptcy in New York

Second Mortgage Discharge

My wife and I have recently filed for Chapter 7 Bankruptcy. We were able to get our first Mortgage Straightened out, however the second mortgage had gone to a collection firm and a Judgement had resulted in a lien against our property. The lien is due to be discharged but according to the Lawyer the Morgage will still exist. I wondered if there were any precidents in matters such as this. My thought was and at one point our Lawyer seemed to agree was that since the Mortgage had gone to a collection firm and then to a judgement that discharge might clear this debt completely. Thank you for any help.


Asked on 11/14/05, 5:28 pm

1 Answer from Attorneys
Andrew Nitzberg Andrew Nitzberg & Associates

Re: Second Mortgage Discharge

If it is your lawyers contention that: since the mortgagor elected for a money judgment rather than foreclosure/auction of the real property, then the foreclosure option has been forfeited, then that is an articulanlr argument.

While analytically, there is a legal doctrine that supports this argument, the statutory law controls this situation and it does not support the claim.

No. This will not fly. The lien established by the 2nd mortgage is not discharged.

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Answered on 11/15/05, 11:37 pm


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