What Happens to My House When I File for Bankruptcy?

Filing for bankruptcy is a big deal and can affect many areas of your financial life including your assets. For homeowners, one of the biggest questions when considering bankruptcy is what will happen to my house. In this article we will go over what happens in Nebraska when you file for bankruptcy and how it affects your house.

Nebraska Bankruptcy

Bankruptcy is a legal process that gives individuals and businesses a fresh start by eliminating or repaying their debts under the court’s supervision. In Nebraska, bankruptcy cases are filed in the United States Bankruptcy Court for the District of Nebraska. There are different types of bankruptcy filings but for individuals the two most common are Chapter 7 and Chapter 13 bankruptcy.

Chapter 7 Bankruptcy

Chapter 7 bankruptcy, also known as liquidation bankruptcy, involves selling non-exempt assets to pay creditors. But Nebraska has a homestead exemption that can protect your home equity up to $120,000 per claimant. Understanding how this works is key in determining what happens to your house in bankruptcy.

How the Homestead Exemption Works

The homestead exemption is a legal provision that protects your home from being sold to pay off debts in a bankruptcy case. In Nebraska, this exemption allows you to protect up to $120,000 per claimant of equity in your home. Equity is calculated by subtracting the remaining mortgage balance from the current market value of the home. For example, if your home is worth $200,000 and you owe $150,000 on your mortgage, your equity is $50,000. Since this is less than the Nebraska homestead exemption, your home would be protected in a Chapter 7 bankruptcy.

But if your home equity is above the exemption amount, the bankruptcy trustee may sell your property to pay off your debts. Keep in mind the trustee will only sell the property if there is enough equity after accounting for exemptions, liens and selling costs. So if your home has little to no equity or the equity is within the exemption, it’s less likely to be sold.

What if My Home Equity is Above the Exemption?

If your equity is above the $120,000 exemption, the trustee can sell your home to pay off creditors. But this isn’t as simple as it sounds. First the trustee must make sure the sale will result in a net benefit to creditors after paying off the mortgage, selling costs and distributing the exemption to you.

For example, if your home is worth $250,000 and you owe $100,000 on the mortgage, your equity is $150,000. Subtracting the $120,000 homestead exemption leaves $30,000 of non-exempt equity. The trustee would have to consider selling costs and other liens before deciding if selling your home is worth it.

Other Things That Can Protect Your Home

Nebraska’s homestead exemption isn’t the only thing that can protect your house in a Chapter 7 bankruptcy. Other considerations:

• Liens on the Property: If you have multiple liens on your home (second mortgages or home equity loans), this may reduce the equity available to creditors.
• Negative Equity: If you owe more on your mortgage than the home is worth, you have negative equity and the property is unattractive to the trustee to sell.
• Fraudulent Transfer: If you recently transferred assets into your home to hide them from creditors, the court may view this as a fraudulent transfer and impact the exemption.

With all these factors at play, it’s important to talk to an experienced Nebraska bankruptcy attorney to review your situation.

Chapter 13 Bankruptcy

Chapter 13 bankruptcy, also known as reorganization bankruptcy, is a repayment plan to pay off your debts over 3-5 years. Under Chapter 13 you can keep your house and catch up on missed mortgage payments through the plan.

How Chapter 13 Protects Your Home

The main benefit of Chapter 13 is you get to keep your property while you pay off your debts over time. This is especially helpful if you’re behind on your mortgage payments. Here’s how it works:

• Repayment Plan: You file a repayment plan with the court outlining how you will pay back your debts over 3-5 years. This plan includes your mortgage arrears so you can catch up on missed payments.
• Automatic Stay: Just like Chapter 7, an automatic stay goes into effect when you file Chapter 13 and stops the foreclosure and gives you time to get current on your mortgage.
• Lien Stripping: If you have a second mortgage or other junior liens on your property, Chapter 13 may allow you to strip those liens if your home’s value is less than the amount owed on your first mortgage.

How to Keep Your Home in Chapter 13

To keep your house in Chapter 13 you must:

• Make Mortgage Payments: You must keep current on your mortgage payments in addition to making payments under your Chapter 13 plan.
• Follow Repayment Plan: You must follow the repayment plan as approved by the court. Failure to do so can result in your bankruptcy case being dismissed and foreclosure proceeding.

The Automatic Stay

One of the best things about filing bankruptcy is the automatic stay. A court order that temporarily stops most collection activities, including foreclosure. This automatic stay gives you time to get your financial house in order without the immediate threat of losing your home.

Automatic Stay Limitations

While the automatic stay gives you temporary relief, it’s not a permanent fix. If you can’t make mortgage payments or negotiate with your lender, the lender can ask the court to lift the automatic stay. This is often done by filing a motion for relief from the automatic stay and allowing the lender to foreclose.

Also, if you filed bankruptcy within the past year and your case was dismissed, the automatic stay may be limited to 30 days or not apply at all unless you get court approval.

Nebraska Specifics

Nebraska has its own bankruptcy laws and exemptions that are different from other states. For example:

• Homestead Exemption: As mentioned, Nebraska’s homestead exemption is up to $120,000 of your home’s equity. Nebraska does not allow you to choose between federal and state exemptions.
• Tenancy by the Entirety: If you own your home jointly with your spouse as “tenants by the entirety” in Nebraska, it may provide additional protection from creditors as this type of ownership may shield the property from individual creditors of one spouse.

Reaffirmation of Mortgage

In some Chapter 7 bankruptcy cases you may have the option to reaffirm your mortgage. Reaffirmation means you agree to make payments on your mortgage as if you never filed for bankruptcy. This can keep your home but you will still be personally liable for the mortgage debt after the bankruptcy discharge.

Reaffirmation Pros and Cons

• Pros: Reaffirming your mortgage can keep your house and keep a positive payment history on your credit report which will help you rebuild credit after bankruptcy.
• Cons: If you don’t make payments after reaffirmation you could be foreclosed and the lender can sue you for any deficiency if the property is sold for less than the remaining mortgage balance.

Nebraska Bankruptcy Lawyer

Given the complexity of the bankruptcy laws it’s important to consult with an experienced bankruptcy lawyer who knows Nebraska law. A bankruptcy lawyer can:

• Evaluate Your Situation: Review your home equity, mortgage status and other assets to determine what bankruptcy option is best for you.
• Navigate Exemptions: Help you understand and use Nebraska’s homestead exemption and other legal protections.
• Negotiate with Creditors: Work with your mortgage lender to find alternatives to foreclosure such as loan modifications or forbearance agreements.

Non-Bankruptcy Options

Before you file for bankruptcy consider:

• Loan Modification: Negotiate with your lender to modify the loan terms to make payments more affordable.
• Forbearance: Temporarily reduce or suspend mortgage payments to get short term relief.
• Debt Settlement: Work with creditors to settle debts for less than the full amount owed and avoid bankruptcy.

Conclusion

Filing bankruptcy in Nebraska can have big implications for your house but the outcome depends on many factors including the type of bankruptcy, your home equity, exemptions and your ability to make mortgage payments. While Chapter 7 may mean the sale of your house if the equity is above the exemption amount, Chapter 13 can keep your house and catch up on payments through a payment plan. The automatic stay gives you temporary relief from foreclosure but long term protection of your house depends on fulfilling the bankruptcy process obligations.

Know your rights and options and consult with a Nebraska bankruptcy lawyer to help you through it. Then you can make a decision that’s right for you.