Kismet,  def. fate or destiny, seemed to be in play this weekend. Or maybe it’s that I’m like a magpie with a fixation on books rather than shiny objects. But the first thing that caught my eye in the exhibitors hall at the Northern California Bankruptcy Forum this weekend was the NCLC book on evidence.  It wasn’t labeled “evidence for dummies” but it could have been. Actually it was titled Instant Evidence, A quick guide to Federal evidence and objections.  Spiral bound, 20 pages, plasticized for heavy use.  Sold. Evidence, particularly court room evidence, isn’t my strong suit.  I don’t get to evidentiary hearings often enough for this to be second nature.  So a summary, a cheat sheet was really appealing. Is that an echo? But I didn’t realize that evidence was going to be a theme, repeated again.  Judge Ron Sargis, a former organizer of this conference, and new to the bench with the past year or two, talked about his campaign for evidence accompanying motions in his courtroom. Think of it:  the man actually wanted admissible evidence in support of the orders bankruptcy lawyers sought from him. I gathered that it had gone from gentle hints from the bench to, when things didn’t change, to the denial of motions not properly supported by evidence. We are federal practitioners Over my career as a bankruptcy lawyer, the practice of consumer bankruptcy law has gone from being a rather informal practice, often not very well done, to a practice in which the federal rules are actually applied, cases are occasionally appealed, and a real record is necessary. Which brings me to my conversations with Tara Twomey, of counsel to NCLC and head of the amicus project at NACBA.  In discussing several cases pending in the circuit courts, she bemoaned the fact that several of them were appealed without a sufficient record from the bankruptcy court.  And she didn’t mean the tapes of the hearing were lost.  It meant that counsel had not entered into the record admissible evidence to establish the critical facts. All too often, bankruptcy lawyers file motions where the only facts found are in the motion.  And the motion isn’t evidence.  It takes documents, with a foundation, or a declaration under penalty of perjury, to get your “facts” before the court as evidence.  And without evidence,  a scrupulous  court is hard pressed to rule in your favor. Evidence:  it’s fated. Image of the evidence courtesy of redjar.  

By JOSH MITCHELL and MAYA JACKSON-RANDALL The amount Americans owe on student loans is far higher than earlier estimates and could lead some consumers to postpone buying homes, potentially slowing the housing recovery, U.S. officials said Wednesday.Total student debt outstanding appears to have surpassed $1 trillion late last year, said officials at the Consumer Financial Protection Bureau, a federal agency created in the wake of the financial crisis. That would be roughly 16% higher than an estimate earlier this year by the Federal Reserve Bank of New York. The new figure—released Wednesday at a banking conference in Austin, Texas—is a preliminary finding from a study of student debt that the bureau plans to release this summer. Bureau officials said the estimate is based on a survey of private lenders, as opposed to other estimates that rely on a sampling of consumer credit reports.CFPB officials say student debt is rising for several reasons, including a surge in Americans going to college in recent years to escape the weak labor market. Also, tuition increases—which many colleges say are needed to offset big cuts in state funding—have many students taking out bigger loans.In addition, the interest costs on older loans are climbing as borrowers fall behind on payments, reflecting mounting financial strains, bureau officials said. New York Fed data show that as many as one in four student borrowers who have begun repaying their education debts are behind on payments.Economists say college is an increasingly good investment because of the widening pay gap between jobs that require a degree and those that don't. Ultimately, the educational degrees and added skills are meant to help workers earn higher incomes that, in time, will more than offset the student debt.But as more people go to college and assume bigger loans for education, they may take longer than previous generations to hit key milestones such as buying a house or getting married, U.S. officials and economists say. It could take longer for heavily indebted graduates to save money for a down payment on a home, or it could be harder for them to qualify for mortgages.Rohit Chopra, student-loan ombudsman for the Consumer Financial Protection Bureau, said student debt could ultimately slow the recovery of the housing market. "First-time home-buyers are a substantial part of the housing market," Mr. Chopra said in a speech at the banking conference in Austin. "Instead of saving for a down payment, these borrowers are sending big payments every month."Student debt is a burden not just for recent college graduates in their 20s but also parents, who often co-sign their children's student loans, as well as midcareer professionals who opted to go back to school during the sluggish recovery.David Johnson, a 58-year-old groundskeeper from Milton, Wash., decided to leave gardening after more than two decades to become a nurse. Two years ago, he took out about $18,000 in private and federal loans to attend a local community college that had a nursing program. After completing prerequisite classes, he learned that the program had a waiting list. With no guarantee of getting into the nursing program, he is wondering whether to take out more debt to continue in school."It's an awkward place to be. I'm not yet a nurse but I've got all this debt and interest compounding on me," he said. "I don't have a lot of working years left and I'm saddled with this debt." Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved.

How Can a Debtor Strip a Second Mortgage?In today's housing market, many Debtors owe more on their house than the house is actually worth, and many people have second mortgages against their house.  You can determine what a house is worth by getting an appraisal or checking on what houses in the neighborhood have been selling for, etc.  When a person is underwater on a house, often because of a second mortgage on the residence, they can feel like their options are limited.  Many debtors think their only option is to surrender the home through the bankruptcy or pay on both mortgages until the home is paid off.  However, these debtors may have another option.The solution to this problem may be to strip the second mortgage on the real property.  This can be done in a Chapter 13 bankruptcy when the first mortgage on the property meets or exceeds the value of the property, thereby rendering the second mortgage unsecured.  A debt is secured when it is attached to a piece of collateral, such as a house.  A debt is unsecured when it is not attached or secured by a piece of collateral, such as a credit card or medical bill.  When the first mortgage exceeds the value of the real property, the second mortgage becomes unsecured.  According to Section 506 of the United States Bankruptcy Code, a lien can only be secured by collateral if there is enough value in the collateral to cover that lien.  Therefore, the second mortgage becomes unsecured.  For example, if a house is worth $90,000, the first mortgage is $95,000, and the second mortgage against the property is $20,000, the $20,000 mortgage becomes unsecured and can be stripped in a Chapter 13. When the second lien is stripped, the Chapter 13 debtor would pay back the first mortgage but would not be required to pay back the second mortgage and would still be able to keep the real property.  In order to strip a lien, the Chapter 13 Trustee may require a debtor to show proof of the value of the house so they can ensure that the second mortgage is completely unsecured and able to be stripped.  Debtors should understand that there are limitations.  If a debtor has refinanced the property, they will not be eligible for lien stripping.  Additionally, if the second mortgage is not completely unsecured, lien stripping will not be a good option.  If you would like more information about this, please contact a St. Louis or St. Charles bankruptcy attorney.

How are Personal Injury Proceeds Handled in Bankruptcy?When considering whether to file bankruptcy, many debtors question whether they will be required to turn over to the Trustee their personal property.  In most cases, personal property will not be confiscated by the Trustee (the person who oversees the bankruptcy case).  In certain circumstances, the Trustee will require certain property be turned over if there are no available exemptions to cover the personal property.  Some people who consider filing bankruptcy may have personal injury or workman's compensation claims pending.  Personal injury cases can take quite some time to settle or go to trial because of the discovery and negotiation process.  Some debtors may need to file bankruptcy immediately to discharge their debts or save their property from repossession or foreclosure and do not have time to wait for the personal injury or workman's compensation claim to settle or go to trial.  Debtors who have a pending claim may be concerned that they may lose their award through the bankruptcy.When debtors have personal injury or workman's compensation claims pending, it is essential they disclose this information.  If the information is not disclosed at the time of the bankruptcy filing, the Trustee might think the debtor was intentionally trying to hide the claim.  If the Trustee finds out the debtor intentionally hid the claim, the FBI can investigate and prosecute the debtors accordingly.  In some instances, the personal injury claims may never settle or may only settle for enough to pay back medical providers, hospital bills, emergency vehicle bills, etc.  In some cases, a settlement or judgment in favor of the debtor may be awarded. In a bankruptcy, workman's compensation claims are exempt, which means the debtor is entitled to keep any proceeds they receive, and the Trustee will not require the proceeds be turned over.  It is important to still disclose these claims.  If a personal injury case is pending at the time of the bankruptcy filing, it is likely the Trustee will keep the bankruptcy case open until the claim is either dismissed or settles.  If an award is granted, the debtor has an obligation to alert the Trustee or their attorney.  At that time, the Trustee will decide how much they will disperse to the unsecured creditors and how much they will allow the debtor to retain.  This will vary depending on the Trustee assigned to the case.  The debtor often still gets to retain some of the personal injury award, and there are exemptions their attorney can apply for retention of a portion of the award.  For more information, please contact a St. Louis or St. Charles bankruptcy attorney.

By TESS VIGELAND Seattle TWELVE-STEP programs often talk about the moment of clarity, when an addict starts to understand just how dire the situation has become. For Karawynn Long, 42, and Jak Koke, 47, it arrived in 2005, when they crossed the $40,000 mark on their credit card bills. “For some reason that was a scary number, over some internal threshold,” Ms. Long said. Their pledge to fix the problem came a couple of years before the economy turned, giving them a head start on all the other people who buckled down once disaster become clear. Ms. Long and Mr. Koke, who live here, paid off the debt, earned more money and changed their spending habits — all of the things you’re supposed to do when plotting a financial turnaround. But in the end, their best efforts were not enough to avoid being dragged down by the one asset that they thought would protect them — their home, which they will have to shed before they can complete their comeback. Their story begins in early 2002, when they moved in together. A year later, they began a publishing start-up — Per Aspera Press — that they hoped would become their own science fiction and fantasy imprint. The business name is taken from the Latin phrase “ad astra per aspera,” which means “to the stars through difficulties.” But the effort generated more difficulties than stars, and they struggled to finance it with ever-more credit card debt. Ms. Long, an author herself, also acknowledged that half of that $40,000-plus debt load was from living beyond their means. She always assumed she would share the upper-middle-class lifestyle of her childhood. She went out to eat — a lot — something that continued during her relationship with Mr. Koke. They took vacations. And when money was tight? “Basically I just put it on credit cards to keep that level of lifestyle no matter the actual situation,” she said. “Like I was entitled to that.” Mr. Koke grew up in what he describes as an average middle-class family. Both his parents worked. His money philosophy has always been to try to arrange his expenses and his life so that he could live on part-time employment, with the rest of his time devoted to writing novels. “I did pick up the responsibility gene in the sense that up until we had our business where we ran up this huge debt, I didn’t have much debt on my cards,” he said. And the pair were sure the publishing imprint would succeed. “It always seemed like at some point it will break through and pay for itself and our lives, too,” Mr. Koke said. “But it never actually did.” The credit cards had also seen them through periods of unemployment. Both have spent the bulk of their careers in the technology industry, mostly as contract employees. She has worked as a Web designer at various start-ups, and he has had jobs as a biotech researcher at several universities, as well as on-and-off work doing technical and marketing writing and editing at Microsoft. He has two daughters from a previous marriage: Michaela, 19, who rents a room from a great-aunt in Portland, Ore., while saving for college, and Claire, 13, who lives half-time with her father and Ms. Long. By late 2005, Ms. Long started to worry about the ballooning debt. Early in 2006 they began household austerity measures, including few or no meals in restaurants, no vacations and the suspension of contributions to their retirement funds. The couple also shut down the publishing effort and found full-time jobs. She worked for a brokerage firm, and he got what he thought was a long-term contract writing for Microsoft. That raised their combined annual income to around $150,000. Then, they threw every extra penny at the credit card debt, around $2,000 a month. Soon the older daughter, Michaela, noticed that the formerly automatic answer of “Sure, honey, here’s the money” started to change. “If you wanted to get a sports sweatshirt or something we would work something out where I paid half if I really wanted it,” Michaela said. Claire, who was 7 at the time, said she noted the drop-off in vacations and meals out. And Christmas changed. “I did think I used to want to have lots of stuff under the tree,” she said. “But then I kind of got more excited about people opening the presents that I got them and making them happy. You don’t need to have all the things.” The couple first took aim at the credit cards with the highest interest rates and wiped out the entire balance within two years. To celebrate, they took vacations to Sea World and Mexico. But the family had mere months to enjoy the accomplishment before the nation spiraled into financial crisis. By October 2008, Ms. Long was unemployed. Mr. Koke’s hours at Microsoft were slashed in half, and his wages for the time he did work dropped by 10 percent. Both have lived off contract work in the three years since, and their annual income is less than half of its peak. What saved them from utter financial devastation was the fact that they had rid themselves of the credit card debt. But then there was that one remaining troubled debt lurking: their home. The green, single-story house sits among fragrant pine trees in a quiet neighborhood of north Seattle, near Haller Lake. Inside, the furnishings are sparse and tend toward Native American arts and Pacific Northwest décor. They bought it in 2006, just as their family austerity measures began. It measures 1,800 square feet and cost just over $400,000. They had not saved enough for a down payment, so they did what many Americans did at the time: they took out a second mortgage, also known as a piggyback loan. The first mortgage was a 30-year fixed rate loan for $303,750. The second mortgage was for $101,250 with a 15-year fixed rate and a balloon payment at the end. This meant they had no equity in the home from the outset. Based on estimates at Zillow.com, they now owe $82,000 more on the mortgage than the property is worth. Given their severely diminished household income, the two mortgage payments ended up being about 65 percent of the couple’s take-home pay each month. “We were killing ourselves to pay this mortgage,” Ms. Long said. So in January 2011, they stopped paying. They said they had tried to work with their bank, to no avail. So they are squatting in their own home, waiting for a foreclosure notice to tell them when they must leave. Ms. Long, who now writes her own personal finance blog called Pocketmint, was blunt. “I’m C.F.O. of this household,” she said. “It’s a business decision for us.” The mortgage payments that have not gone to the bank have instead gone into an emergency fund and will also help with an eventual apartment rental. The family also took a vacation last fall, their first in at least two years. The four of them flew to Washington, D.C., for less than $250 each, according to Ms. Long, who did dogged airfare research. They stayed with a relative, prepared most of their own meals (including lunches to eat outside the Smithsonian museums), and spent less than $1,800 for nine days, she said. Those who would look askance at that expense when they are not paying the mortgage, Ms. Long said it was money well spent. “We took a vacation to the Smithsonian because we’ve learned that experiences, rather than possessions, are the way to happiness,” she said. “And we wanted to share that with our kids.” Claire says she learned even more over the last few years by watching her parents work their way through their financial problems. “I learned,” she said, “a lot about not getting trapped.” Devin Maverick Robins contributed reporting.Copyright 2012 The New York Times Company.  All rights reserved.

Love and Marriage. Fries and Catsup. Chips and Dip. Like these famous pairings, divorce and bankruptcy are frequent companions. When a couple goes their separate ways, often the most substantial marital accumulation is debt. The questions we get as bankruptcy practitioners usually revolve around whether to file a bankruptcy case before or after the divorce. The sound answer is, of course,  “it depends”. The argument for filing before revolves around the economy of filing a joint case.  There’s one filing fee, one attorney.  Also, the pile of debts to be divided is reduced by the bankruptcy discharge. The counter argument looks at the parties’ ability to cooperate in the bankruptcy case;  the unpredictable treatment of the debtor by the state court in a post bankruptcy divorce ; and the question of whether a premature bankruptcy will expose one party or the other to a debt that could have been discharged in a post divorce bankruptcy. But for the issue of the time wasted dividing debts,  I’ve felt the conservative position was to file after the divorce, but it seemed like a conservatism that protected me as the bankruptcy lawyer at the expense of my client. There was less chance of unexpected consequences in waiting, but certainly at a price for the client. Support invulnerable The given is that support debts are not dischargeable in any chapter, at any time. Prepetition domestic support obligations have priority for payment and post petition currency on support is a condition of  a Chapter 13 discharge. The stay doesn’t apply to proceedings for custody, visitation, modification of support, or termination of marital status. Non support debts One of the few areas of bankruptcy law that BAPCPA made easier was the treatment of non support debts that arise in a divorce.  Section 523(a)(15) now flatly makes debts to a spouse, former spouse, or child of the debtor incurred in the course of the divorce non dischargeable. Pre BAPCPA, the section made discharge of such debts conditioned on the timely filing of an adversary by the spouse or child and a determination that the creditor would be more disadvantaged by discharge than the debtor, should the debt not be discharged. It was messy, expensive and uncertain.  Now, the rule is straight forward and predictable. Chapter 13 is different What is critical to note is that §523(a)(15) is not one of the exclusions from the Chapter 13 discharge. So, if the debt is not in the nature of support and the creditor is a spouse, former spouse or child of the debtor, the debt can be discharged in Chapter 13. Make sure your intake procedures identify former spouses, debts that may be in the nature of support, and the prospects for a divorce in the near future as you work your way through the thicket of marital debts. Image courtesy of greywulf.

During the three to five years that you're making payment on your Chapter 13 bankruptcy, you can't take out any new debt without getting permission from the bankruptcy court. This provision is there to protect you from getting into further financial trouble as well as to protect new creditors from losing money if you are unable to pay them back. Sometimes it is necessary to purchase a new or used car. For example, if your car breaks down and there's no other way to get to work, or you wish to trade your current car in and get a more reliable and perhaps a nicer car. There is not requirement that you have to drive in an old clunker if you are in bankruptcy. Ok, you want to stay away from a new Porsche, the trustee might object when you propose to purchase a new car that is ten times the value of the trustee’s vehicle. You can purchase a new or used car during your chapter 13 bankruptcy case. There's a process you have to follow. In most cases the car creditor requires an order from the court allowing you to purchase a new car. The process below is for the St. Louis Metro area. The process might be different in other districts. The first step is to make sure you can afford the car payment. Schedule I and J, these are the schedules in your petition which list your income and expenses, must show that you can afford the new car payment. You and your bankruptcy attorney will need to look at your current income and expenses to make sure that there is sufficient money in the budget to pay the plan payment and the new car payment. You might have to reduce expenses on other items such as clothing or miscellaneous expenses to make the budget work. However, you cannot make up number, but you can reduce your expenses if it becomes necessary. Your expenses must be reasonable. Food of $30 for a one person without any other help such as food stamps or contributions from family members are most likely not reasonable and will draw an objection by the trustee. The next step will be for you to find a car-dealer who will sell you a car with a monthly payment that fits into your budget. Our office works with a car-dealer together who has a financing partner who is specialized in providing loans to people who are in bankruptcy. One might think that it is difficult to obtain a loan while in bankruptcy. That is not necessarily true. It depends on your credit. If your credit was low due to reports of delinquent accounts before filing bankruptcy, it might be easier to obtain a car loan after filing because the negative entries on your credit report stop after filing for bankruptcy. The car loan will be paid directly to the car dealer, not to the trustee. The contract will be outside of the bankruptcy. The third step is for your attorney to file a motion to incur debt/ purchase a new or used vehicle with the court. In that motion your attorney will have to state the whole loan amount, the monthly payment and the reason why you need to purchase the new vehicle. You do need to have a reasonable explanation. If you don’t provide a reason or the reason is that you just like cars, the trustee will object to your motion. An acceptable reason is that your old car broke down, or requires so many repairs that it is not feasible anymore to repair the car and that it makes more economic sense to purchase a newer or even a new vehicle. If the trustee is not objecting and the court grants your motion, your attorney can now submit the order. Within a few days, the court will file the order and you can purchase the car.What if the car I wanted was sold in the meantime?That happens. The motion should request to purchase permission for the car you want with the monthly payment you can afford and should add that in the case that vehicle is not available that you have permission to purchase a similar vehicle with a monthly payment not exceeding the amount stated in the motion. This way, you are not bound to one specific vehicle. Can I trade in my old car?Yes, you can but it is up to your car creditor to agree to it. It will be easier if the new car creditor is the same as your old car creditor because he would have a benefit from the trade in. After trading in your old vehicle, your car creditor will be paid directly by you and will receive the contract interest rate. Before, your car creditor received only a monthly payment stretched out over the length of the plan (usually 5 years) with the courts interest rate, currently 5.04%, that is pretty good for the debtor as we see sometimes contract interest rates of over 20%. But even if your new car creditor is not the same lender, you might be able to offer your old lender a good deal. With a trade-in the old lender would receive a lump sum now, instead of waiting perhaps years for the money to be paid in full. He would be entitled to contract interest rate and full loan balance. The offer could be to pay more to the old lender than he would receive through the bankruptcy plan.When you trade-in you still would need permission from the court and the old lender would have to agree to release his lien.Can I sell my car while I am in bankruptcy?Yes, same problem, the lien hold will need to agree to it. If you get money out of the deal, you either will have to turn over the money to the trustee or your attorney files a motion to retain the money for necessary and reasonable expenses.After you trade in your car or sell it, your attorney will need to object to the claim filed by your creditor in your bankruptcy case because otherwise your creditor will continue to receive monthly payments from the trustee.Trading in your vehicle before filing for bankruptcy.No problem when you file a chapter 13, but be careful when you file a chapter 7 and the new vehicle is now titled in the non-filing spouse and the previous car was in both of your names. Even though the previous car was exempt through the Tenancy by the Entirety Exemption, after trading in the car, receiving value for it by either receiving cash or a lower payment on the new car, you actually made a preferential or fraudulent (548 U.S.C) transfer the chapter 7 trustee can avoid. Before transferring any property, talk to your bankruptcy attorney about it. The argument that the first vehicle was exempt, will not matter after the Eights Circuit decided end of 2011 in Re Lubar that the trustee can avoid such a transfer.

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Often times debtors ask if it is possible to pay their chapter 13 plan off any earlier, either by making higher than scheduled monthly payments, or by one lump sum.  If you are in a 100% plan, meaning that you are paying back all of your debts owed to both secured and unsecured creditors, there should not be any issue with you paying off the plan early.  You can do this by increased monthly payments or a large lump sum payment.However, most often, debtors are not in a 100% plan, meaning that not all debts are being paid back to secured and unsecured creditors.  If you are in this situation you will certainly want to consult with your attorney before making any decision to try to pay off the debt early.  If you are over median income, as calculated by the means test, you are required to be in a five year plan (unless, as explained above, you are paying back 100% of creditors).  If you intend to borrow money from a bank or even a family member or friend to pay off the bankruptcy you actually need permission from the bankruptcy trustee to incur debt.  If you start making higher than required payments on a regular basis the trustee may think that you have undisclosed income, or that for some reason you are able to pay more.  If the trustee thinks you are able to pay more back to your creditors the trustee can do a motion to increase plan base and can actually request that you be required to make the higher payment.  For example, if your payment is $400 and you make several payments of $600, the trustee may file a motion to increase your payment to the $600 that you have now demonstrated that you can afford to pay.  The trustee's job is to balance you interests with the interest of the creditors of getting paid back as much as possible.If you make a lump sum payment the trustee will likely want to know where that money came from.  When you are in a chapter 13 bankruptcy some assets can become a part of the bankruptcy, even if you were not entitled them at the time of filing.  For example, as a general rule, any tax refund over $600 dollars needs to be turned over to the trustee, unless of course, you can do a motion to retain your tax refund.If you have questions, or would like to schedule a consultation, contact a St. Louis Bankruptcy Attorney today!

People who are considering Chapter 13 bankruptcy may be able to benefit from a practice known as lien stripping. This in essence is the process of forgiving or stripping away debt that is normally ineligible to be written off. In previous years, this practice was virtually unheard of, but factors surrounding the present housing market have caused this to be a very common occurrence.   Chapter 13 bankruptcy involves setting up a schedule for the repayment of the debtor’s debt based on his income. The first debts that are normally paid are secured ones that have a piece of property attached to them. Home and car loans generally fall into this category, as the property can be repossessed in the event of non-payment. Non-secured debts are ones that do not have property attached and are among the last to be paid under Chapter 13.   People who have taken out a mortgage only to find the value of their home has fallen may be eligible for lien stripping. This happens whenever more money is owed on a primary mortgage than the real estate is worth because property values have decreased. The excess amount owed on the primary mortgage means that subsequent home loans are now unsecured and eligible to be discharged by a bankruptcy judge.   An example of an unsecured second mortgage would be this: A couple purchased a home five years ago for $250,000. Two years later they took out a second mortgage for $50,000. They now owe $220,000 on their first mortgage and $45,000 on their second mortgage. The value of the home is now only $200,000. The debtors are now under water and may apply lien stripping rules to the second mortgage.   Even if the value of certain real estate is less than the amount owed on the first mortgage, this loan is still fully secured. This is because the law requires that first mortgages be wholly secured ones regardless of the circumstances. As a result, debtors are unable to write off any of their remaining first mortgage amounts even if the amount greatly exceeds the value. In the case above, the family may not be relieved of the additional $20,000 debt on their first mortgage loan.   A second mortgage can also be fully secured even if the loan causes the amount borrowed to exceed the property value. This is because discharging mortgage loans requires an "all or nothing" application. This means that if there is even a small amount of equity left after satisfying the first mortgage, the second one is also fully secured and cannot be stripped away.   An example of this would be when a homeowner purchases a home valued at $275,000 for $200,000 and then takes out an additional mortgage for $60,000. Shortly thereafter, the value of the home plummets to $210,000. This is still greater than the amount on the original mortgage, which means some of the equity carries over to the second home loan. In this instance, neither loan is eligible for lien stripping.   Can you strip a lien when only one spouse if filing for bankruptcy or one spouse dismissed the chapter 13 case after filing? I would say yes, because the lien stripping is an in rem action. I used the term on purpose to confuse readers. This is Latin and means “against property”. If the lien is stripped of as to the property, the non-filing spouse should be able to benefit from it. I can see however, a title company making problems about this question later on when you try to sell your house. I would advise to file jointly if a lien strip is planned. If you are underwater with your mortgage, do you still have to strip the second mortgage, can’t you just file a chapter 7? First, what means being underwater with your mortgage? It means that your house is worth less than the mortgage. The question is, can the lien holder for the second mortgage do anything if they don’t get paid anymore? The answer is yes, they can, they still can start a foreclosure proceeding. The first mortgage would get paid first and the second mortgage would not get anything, but they still could start a foreclosure. The same is true by the way with Judgment liens. As soon as a judgment lien is on your house, your creditor can commence foreclosure proceedings, no matter if he will receive any proceeds from the sale of your home. You have three options: File a chapter 7, and then strip down the lien in a subsequent chapter 13 without discharge. File a chapter 13, strip the lien and receive a discharge (Fisette, decided by 8th Circuit). Or file a chapter 7 and settle with your second mortgage company the second lien. Lien stripping is done by adversary proceeding and in most cases incurs additional attorney fees which should be paid through the chapter 13 plan. The attorney would file an application for additional fees and a “Notice and Summary of Application for Compensation”. The most important question when stripping down a lien: How do you value your property? The debtor’s estimate is not good enough. You should have an appraiser and if there is a dispute with the mortgage company about the current value, your appraiser should be ready to testify in court. It that situation it is also possible to settle the dispute with the mortgage company and agree on a value. If you are in the St. Louis area, our office knows appraiser with many years of experience who can testify in court. In disputes between mortgage company and debtor about valuation, it also depends on which Judge will make the decision. Even though your bankruptcy attorney will never know the outcome of a adversary proceeding, he might be able to assess the chances considering all factors, including who is the appraiser who will testify in court, and who will be the judge to make a decision. Some Judges consider the lien stripping a loop whole that was not intended by Congress and might side with the creditors when the evidence is not supporting debtor’s valuation. However, the new bankruptcy law did not change or correct the language in the Bankruptcy Code, it is good law.