Updated March 16, 2010 12:01 a.m. ET
Last week I received an email from a desperate couple in Illinois. Here's the edited version of their note:
"My wife and I have been struggling, morally, with what to do. We have two interest-only, adjustable-rate mortgages with two different lenders coming due in May of 2011. I currently can handle paying all my bills–but just barely, with nothing left over for replenishing of the emergency fund, or even my kids' college savings.
In one year, when those adjustable rate mortgages adjust, it's a different story. The home is now worth about 70% of the loan values. We do not want to stay in the home and have been trying to be proactive about doing something before the rates adjust. My lenders both said that if I do a short sale they would definitely make me sign a promissory note (for the deficiency). That defeats our purpose, so it is not an option for us. Bankruptcy attorneys have told me I make too much money to file for Chapter 7. I am currently employed. Last June I lost my previous job, and squandered our savings to stay above water with bills and the mortgages. Hindsight is 20/20 and at the time I should have filed for Chapter 7.
So, I am considering just letting the home go to foreclosure, saving my money, paying off other smaller debts (such as credit cards, and car loan), but am hesitant. I want/need to do the right thing fiscally for my family, but am wavering on the fence as to just take the plunge or not in a strategic foreclosure.
What should we do?"
These people are far from alone. Millions of middle-class Americans today are in a similar situation. They are struggling with their mortgage payments, and cannot sell because they are a long way underwater, owing more on their home than it is worth. They have wiped out their savings trying to keep up. One worker in six is either unemployed or underemployed, and there is a tsunami of rate resets coming in the next two years.
No one forced them to borrow –but no one forced the banks to lend either. More important right now is how they get out of it. I took this conundrum to two experienced bankruptcy attorneys–Richard Nemeth in Cleveland and Jeffrey Tromberg in Ft. Lauderdale, Fla.–for their advice. Here are some thoughts they offered.
1. Put those suitcases down! Stop and take a deep breath. Sure, you could just walk away from the home today. There is a decent chance the banks won't come after you for the shortfall either. And, as I've written before. the issue is not really a moral one. But you should first make sure you explore all your options to make sure you do it right.
2. Find out if you are eligible for help from the federal government. If your lender won't modify the loan or agree to wipe out the deficiency through a short sale, Uncle Sam may still help you. The Making Home Affordable program was signed into law by President Obama last year. It hasn't achieved as much as some may have hoped, but it has still helped some homeowners. The program offers mortgage modification and refinancing for some homeowners who are struggling, but there are conditions. The Department of Housing & Urban Development also offers help and advice on avoiding foreclosure: Details can be found here .
3. Get another legal opinion. You say you've spoken to bankruptcy attorneys, but were they specialists? Bankruptcy law in the U.S.
like something out of Charles Dickens, even though it was just rewritten a few years ago. It's convoluted, self-contradictory, and complex. The laws vary from state to state, and case law is changing almost weekly. It's just five years since Congress passed sweeping legal changes, and many of the new rules are only getting road tested now. You may get different answers from different experts. Even those who pushed for the law, such as the lending industry, have been surprised at how some of it has worked out. It's worth making sure your counsel knows the minutiae. The National Association of Consumer Bankruptcy Attorneys (NACBA.org ) should be able to help you find a local specialist.
4. Double-check to see if you can still squeeze under the bar for a Chapter 7 bankruptcy. Chapter 7 is probably the simplest way to clear your debts, walk away and start again. I know you say you've been told that you earn too much to qualify. The 2005 law made qualification much tougher. But the new means test is actually far less restrictive than many people–including many attorneys–think. It allows some pretty generous exclusions from your gross income. You are, for example, allowed to deduct some pension and 401(k) contributions. You are also allowed to deduct charitable donations up to 15% of your gross income, though you have to demonstrate some history of these contributions. Make sure your counsel is experienced at bankruptcy filings and has fully explored how you might be able to make these work for you.
5. Realize that even if you can't file now, that may change. The means test also excludes mortgage payments from your income. So even if you earn too much to file for Chapter 7 today you may do so when the mortgage rates reset. Mr. Nemeth says that the bankruptcy laws contain some peculiar loopholes you need to know about. For example, they may actually reward you for falling behind on your mortgage payments. That's because your mortgage arrears will help reduce your effective income for the purposes of the means test–even if you plan to walk away from the home. Crazy? Yes. But blame the lenders. This is the law they, um, lobbied for.
6. Understand how a Chapter 13 might help you after all. Chapter 13 is "bankruptcy lite," for those whose income is too high to qualify for a Chapter 7. It involves a debt repayment plan (it's something like the Chapter 11 bankruptcy process used by corporations, though not as generous). In Chapter 13, the courts work out how much of your unsecured debts you can reasonably repay and set up a schedule to repay it.
Chapter 13 will not reduce the value of your primary mortgage. But make sure your counsel understands a little-known gap in the law that can help distressed homeowners who either have two mortgages, or one mortgage and a home equity line on top. If the property value has fallen so far that the primary mortgage is now under water, the courts can rule that the second mortgage is now an unsecured loan. And that, miraculously, means they can modify it. An example: You take out a $200,000 first mortgage and $50,000 second mortgage to buy a home for $250,000. The home then falls in value to $180,000. As that's not even enough to cover the first mortgage completely, the second mortgage now has no collateral against it at all. The court, in most jurisdictions, can now modify that second mortgage the way they could other unsecured debt, such as a credit card payment.That could include reducing it to zero.