Wednesday, March 17, 2010

Is my mortgage secured or unsecured debt? How does this effect Chapter 13 debt limits?

A mortgage is a legal instrument typically securing a debt against real property, such as your residence. It would seem obvious, therefore, that a mortgage is a secured debt. But this is not always true.

In our current real estate market, many homes are underwater. Not in the literal sense (although this is also true for many homeowners in Massachusetts after the storm this past week). Figuratively, when a home is described as "underwater" it refers to the mortgages on said home having a value greater than the current fair market value of the home.

When filing a Chapter 13 bankruptcy, a wholly unsecured second mortgage or even the unsecured portion of an undersecured first mortgage should be listed as unsecured debt. Depending on other circumstances you may or not be able to to discharge this "unsecured" debt, however that doesn't change the fact that the Court will consider it unsecured.

Why does this matter?

When filing a Chapter 13 bankruptcy, there are debt limits defined by 11 U.S.C. §§ 109(e). Said debt limits were recently raised, effective April 1, 2010. Under the current limits, a Chapter 13 bankruptcy will be dismissed if the debtor has unsecured debt greater than $336,900 and/or secured debt greater than $1,010,650. As of April 1, 2010, those figures rise to $360,475 and $1,081,400 respectively.

Consider the following scenario:
A debtor owns a $600,000 home but has $900,000 in mortgages. The debtor has a car with a lien of $20,000 (secured debt) and credit card (unsecured debt) of $100,000.

If the entire mortgage debt was considered secured then the debtor would be under the debt limits with a total secured debt of $920,000 and a total unsecured debt of $100,000. Unfortunately, because the Court considers the $300,000 of "underwater" mortgages unsecured, the debtor has a total unsecured debt of $400,000, which is above the debt limits. This debtor would, therefore, be ineligible to file for relief under Chapter 13 and be forced to seek other relief (possibly filing for bankruptcy under Chapter 11).

This is the exact scenario articulated by a California Court in an unpublished decision: In re Estrada.

Estrada refers to a Ninth Circuit decision: In re Scovis, 249 F.3d 975, 982 (9 th Cir. 2001). In Scovis, the Court stated that a "vast majority of courts, and all circuit courts that have considered the issue, have held that the unsecured portion of undersecured debt is counted as unsecured for 13 § 109(e) eligibility purposes."

It appears that this is also the law in Massachusetts. In re Marrama, 345 B.R. 458, 472 n.23 (Bkrtcy.D.Mass. 2006) In Marrama the court referenced Scovis and noted that the debtors failed to list the unseured portion of an undersecured mortgage as unsecured debt, which would have resulted in a greater unsecured debt.

This also indicates the importance of completing your bankruptcy schedules correctly. To consult with an attorney regarding filing for bankruptcy, click here.


  1. Many people do not know what to do in cases of high debt. It is vital getting the right information so that the right decision can be made to over come the debt.

  2. Hello, I would like to know if my parents can do a Chapter 13. This is their current situation: First Mortgage $265,000 plus late fees & other charges for a total of about $320,000. Second mortgage of about $112,000 which was taken to court and a payment plan was agreed. After that, my parents could not keep up with the payments so the bank took them to court and won just recently. Now there's a court order against my father for that amount plus attorney & court fees. They are currently trying to modify their first mortgage but I doubt they will ever qualify. The actual home value of the house should be around $250-260,000. Do you think a Chapter 13 is appropriate in this case?

  3. Hi Anonymous:

    Thank you for your comment. Based on your information, it looks as though a Chapter 13 may be a possibility for your parents, but I would be remiss if I were to say a Chapter 13 (or any other Bankruptcy relief) would be appropriate without knowing a great deal more about your parent's full financial situation and their ultimate goals. I would strongly recommend that your parents speak to an experienced bankruptcy attorney. Whether a Chapter 13 is appropriate certainly depends on their debt, but also their income, their intention regarding the property (retain or surrender), other debts they owe, and their ability to afford their current mortgage obligations. I can't tell for certain where your parents are located, but if they are residents of Massachusetts, please have them contact my office for a free consultation.


Note: Only a member of this blog may post a comment.

Related Posts Plugin for WordPress, Blogger...