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  1. #1

    Default In Bankruptcy with Mortgage Default, Divorce Pending

    My question involves real estate located in the State of: New Jersey.

    I live/rent in CO, seeking better employment. My soon-to-be ex lives in our house in NJ. He was laid off in October, 2011. He has not paid mortgage since then or his credit card debt which happens to be on cards in my name. (I know.) I have exhausted savings and options, began Ch. 7 BK in November, 2011. I cannot afford the final attorney payment, yet, which will generate filing of case and case #.

    The house just went back on the market mid-April, 2012. Two offers this week (have not countered, yet,) and an open house 4/29/12. After all fees and who knows what penalties, it would be a short sale at best.

    Real Estate attorney I spoke with requires $1000.00 up front, is very concerned about my BK; research has led me to think he's concerned only about his ability to profit. Realtor, of course will profit and wants to proceed. "Ex" has no regular income or savings but has no creditors save the mortgage lender. "We" were turned down for mortgage restructuring last Fall.

    I'm trying to cut my losses and move on with life. I never expected profit from house. I have no children and no plans for buying another house. I can live with the ramifications of BK. (Not my fault, just my stupidity.) I know that BK will throw monkey wrench in Short Sale if BK gets filed first and house is listed as asset. Contrary to SS atty's "advice," it seems to behoove me to continue with BK, (and possibly that ex should file for BK, as well?)

    There has been one letter regarding looming foreclosure. If one or both file BK, I think foreclosure proceedings are halted? If so, may ex still reside in house? Not trying to hurt ex at all, but really just looking to protect myself/get my name off mortgage. I'd be willing to sign it over if pragmatic; he and house are sinking ships and I see only trouble if I remain tied to them.

    I've read of DIL option. Any suggestions, there? Most articles say don't go with short sale. I have to go with BK and don't want to pay for short sale attorney for no reason. Oh, and I'm aware of tax ramifications of short sale.

    Bottom line for me: I want to be pragmatic but I want to be done with this as fast and inexpensively as possible.

  2. #2
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    Default Re: In Bankruptcy with Mortgage Default, Divorce Pending

    Once you file for bankruptcy protection the automatic stay will limit the bank's (and your) ability to sell the house - they will have to wait until the stay is eventually lifted, or bring a motion to have the stay lifted such that the house can be sold. During the stay no action can be taken against you on a foreclosure, and practically speaking that means that no action would be taken to remove your spouse from the home. But your spouse should be thinking about his next place to live - we cannot promise him whether you're even going to file for bankruptcy protection, let alone how long the stay would be in effect or how the lender might respond.

    If your lender is willing to accept a deed in lieu of foreclosure, that's something you and your ex- can discuss. If you and your ex- agree to a short sale, he should make sure that it includes a waiver of any deficiency. A deficiency could be relevant to you as well, depending on whether we're talking Chapter 7 or Chapter 13.

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