October Newsletter, 2008

How Chapter 13 Can Help With Foreclosure

by Attorney Stephen R. Elias

Learn how bankruptcy can avoid or stall the foreclosure of your home.

If you are facing foreclosure and cannot work out a deal or other alternative with the lender, bankruptcy may help.

If you get behind on your mortgage payments, a lender may take steps to foreclose -- that is, enforce the terms of the loan by selling the house at a public auction and taking payment of your loan out of the auction.

This won't happen overnight. The foreclosure process typically starts after you fall behind on your payments for at least two months, and often three or four. That gives you time to try some alternate measures, such as loan forbearance, a short sale, or a deed in lieu of foreclosure.

But if you've already tried and failed with these measures, now is a good time to consider filing Chapter 13 as a possibility for avoiding or stalling foreclosure. Here are some ways that filing for bankruptcy can help you.

The Automatic Stay
When you file a Chapter 13, the court automatically issues an order (called the Order for Relief) that includes a wonderful thing known as the "automatic stay." The automatic stay directs your creditors to cease their collection activities immediately, no excuses. If your home is scheduled for a foreclosure sale, the sale will be legally postponed. The Chapter 13 plan typically proposes to pay the regular house payments and cure any late payments.

A Chapter 13 may also help you eliminate the payments on your second or third mortgage. That's because, if your first mortgage is secured by the entire value of your home (which is possible if the home has dropped in value), you may no longer have any equity with which to secure the later mortgages. That allows the Chapter 13 court to "strip off" the second and third mortgages and recategorize them as unsecured debt.

What the bailout package means to you

Amey Stone
Oct 8th 2008 at 8:00AM

The U.S. government passed a $700 billion economic bailout package in an effort to stabilize the flailing banking sector. So far, it hasn't worked as hoped and the financial crisis has deepened since the law was approved. That's the bad news.

The good news is that there is a lot more than help for just banks in the 451-page legislation. Lawmakers added hundreds of other "sweeteners" to make the bill more popular with the public. See if you can benefit from any of the following provisions:

More insurance for bank deposits: Now your bank deposits are protected up to $250,000 for each account. Formerly, the Federal Deposit Insurance Corporation (FDIC) backed your deposits up to $100,000. The increase is temporary, but is likely to be extended.

AMT Reform: Fewer taxpayers are going to get hit with the dreaded Alternative Minimum Tax, a parallel tax code that was originally intended to make sure wealthy people paid their fair share of taxes, but which has increasingly slammed middle-income earners. Basically, unless you make more than $100,000 for single taxpayers or $175,000 for married taxpayers filing jointly, you shouldn't have to worry about the AMT due to the change.

Easier to get your mortgage terms modified: The new law asks Federal agencies to encourage companies that service mortgages to help their borrowers who are having trouble making payments modify their loans so they become more affordable. It sounds a little vague, but lenders are already responding to government prodding and agreeing to modify mortgage terms for some distressed borrowers. Bank of America, for example, announced a new plan Oct. 6 that will aid certain former Countrywide mortgage holders.

Caps on executive pay: Again, the terms here are a little murky, but basically executives of firms that participate in the bailout could have to repay some of their bonuses if the funds were awarded based on inaccurate financial statements. Execs also should not get so-called "golden parachutes" or large payments if they are fired. This provision may have psychic, rather than monetary benefits for those Americans who are angry about the high pay awarded some of the same bankers who have presided over the economic crisis.

Banks may be less at risk of failing due to accounting issues: In a controversial move, the law asks the Securities and Exchange Commission (SEC) to consider changing accounting rules that require banks to value securities at market prices even when there are no buyers. That so called "mark-to-market" requirement means banks have to account for some securities as if they are worthless (putting them in bad stead with rating agencies), even if they are sure the securities will eventually be worth something.

Insurers have to treat mental health like other illnesses: The law requires health insurance companies to cover treatment for mental illnesses the same way they cover any other disease. This became part of the law due to procedural requirements. The Senate's financial rescue plan was actually added to a bill for "mental health parity" that passed the house last March.

Assorted niche tax breaks: The bailout plan has been faulted for including lots of pork – provisions that benefit a small number of people, but that can be key to a politician's reelection bid. The law contains tax breaks that benefit makers of wooden arrows used in children's toys, the rum industry of Puerto Rico and the Virgin Islands, wool manufacturers and racetrack owners to name a few.

More development of alternative energy: The law contains extensions for some tax breaks intended to spur the use and development of alternative energy. Homeowners can continue to get tax credits to cover part of the costs of solar panels, windmills, geo-thermal heating systems and electric cars. Companies that invest in alternative energy technologies will also continue to enjoy some nice tax breaks.

Lower taxes in the future? A part of the law which invites skepticism currently, allows the government to take equity stakes in Wall Street firms that participate in the bailout. Theoretically these stakes could one day be quite valuable. Another provision states that after five years, if there are any losses due to the bailout, the government will recoup the shortfall from the financial services industry. In theory, one day this could mean increases in government coffers without tax hikes for individuals. That would be nice.