Can I file a motion to avoid a lien on home from second mortgage and have it accepted? 14 Answers as of June 28, 2011

Is it likely to file a motion to avoid lien on home from second mortgage - and have it accepted. The home is well short of being worth the first mortgage Balance much less the second - we had the First modified and a few days later the second mortgage filed suit and will not comply with any kind of settlement offer or conversation. Foreclosure has been filed for June 21st 2011 with the first - We have no problem paying unpaid balances and the plus costs - I mean we can come up with the money somehow also legal counsel

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Financial Relief Law Center
Financial Relief Law Center | Mark Alonso
Yes, in a Chapter 13 you can reduce the amount of the second mortgage through a payment plan over 3 to 5 years that is structured based on your available household income. At the end of the plan the second mortgage will be eliminated.
Answer Applies to: California
Replied: 6/28/2011
Law Office of Asaph Abrams
Law Office of Asaph Abrams | Asaph Abrams
Chapter 13 lien strips or "motions to avoid liens" are common and routinely successful. The junior-lien to-be-stripped must be wholly unsecured.
Answer Applies to: California
Replied: 5/26/2011
The Law Offices of Alan M. Laskin
The Law Offices of Alan M. Laskin | Jared B. Gaynor
11 U.S.C. 522(f) relates to lien avoidance however only two types of loans are avoidable. A judicial lien, normally on a home, or a non-purchase money security interest in any personal property. Voluntary liens on real property, like every second mortgage, are not avoidable by the court.
Answer Applies to: California
Replied: 5/20/2011
Jackson White, PC
Jackson White, PC | Spencer Hale
If you are in a chapter 7 then you cannot strip the second lien unless the mortgage company wants to settle. However, in a chapter 13 you can force the second to give up their lien. If you are currently in a chapter 7 then you need to convert to a chapter 13.
Answer Applies to: Arizona
Replied: 5/19/2011
Benson Law Firm
Benson Law Firm | David Benson
If you file a Chapter 13 case, you can strip the second mortgage if it is completely under water.
Answer Applies to: Ohio
Replied: 5/19/2011
    Indianapolis Bankruptcy Law Office of Eric C. Lewis
    Indianapolis Bankruptcy Law Office of Eric C. Lewis | Eric Lewis
    A second mortgage in your situation can be avoided through the appropriate motion in a Chapter 13 bankruptcy proceeding.
    Answer Applies to: Indiana
    Replied: 5/19/2011
    The Orantes Law Firm
    The Orantes Law Firm | Giovanni Orantes
    Contact us. You may qualify for relief under Chapter 13, which has the power to eliminate the second mortgage under the facts you mention and would, of course, stop the litigation immediately.
    Answer Applies to: California
    Replied: 5/19/2011
    The Law Office of Mark J. Markus
    The Law Office of Mark J. Markus | Mark Markus
    Sounds like you need to file a Chapter 13 case. Most courts allow you to strip (remove) junior liens on a principal residence if the value of the property is less than the amount owed to the first mortgage. However, this does vary from court to court, so you need to check with an attorney in your area.
    Answer Applies to: California
    Replied: 5/19/2011
    Bankruptcy Law office of Bill Rubendall
    Bankruptcy Law office of Bill Rubendall | William M. Rubendall
    A junior lien on a home can be stripped in Chapter 13 or 11, but not 7. Consult with an attorney about filing Chapter 13.
    Answer Applies to: California
    Replied: 5/19/2011
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    You are perhaps asking a question, but with the wrong motion. There is a motion to avoid a lien, but that motion does not apply to mortgage liens. You may be thinking of a motion to strip the lien of the second. That can be done, but it requires that the amount owed to the first is more than what the property is worth. If the house is worth even 1 cent more than what it owed to the first, then you cannot strip the second. The value is established by an appraisal by a licensed appraiser.
    Answer Applies to: California
    Replied: 5/19/2011
    Ursula G. Barrios Law
    Ursula G. Barrios Law | Guillermo Machado
    If the value of your house is less than your first mortgage, you can strip your second mortgage. If you can remain current on your first mortgage and cure any arrears on that first throughout a 60 month plan (max), you save your home without a second. The lawsuit can be discharged with the BK, assuming they are not alleging fraud. Our law firm performs these services with great frequency and success. Contact us for a free consultation. You don't have much time if your sale date is days from now.
    Answer Applies to: California
    Replied: 5/19/2011
    Law Office of Harry L Styron
    Law Office of Harry L Styron | Harry L Styron
    Where the 2nd lien is completely unsecured because the value of the property is less than the 1st, the bankruptcy courts have been routinely granting motions to void the 2nd, which leaves it as an unsecured debt along with whatever other unsecured debts there are, to receive pro rata whatever distribution there is out of the bankruptcy.
    Answer Applies to: California
    Replied: 5/19/2011
    Janet A. Lawson Bankruptcy Attorney
    Janet A. Lawson Bankruptcy Attorney | Janet Lawson
    If the first mortgage is more than the value of the house, yes you can strip of the second. Get to lawyer now as doing it on short notice is generally more expensive. You will most likely need an appraisal to establish the value.
    Answer Applies to: California
    Replied: 5/19/2011
    Law Offices of Alexzander C. J. Adams, P.C.
    Law Offices of Alexzander C. J. Adams, P.C. | Alexzander Adams
    You should immediately consult with a bankruptcy lawyer. In Chapter 13, it is possible to strip away a wholly unsecured second mortgage. However, if you try to file the case after foreclosure, the property will not be recovered. You must file the bankruptcy prior to filing the case.
    Answer Applies to: Oregon
    Replied: 5/19/2011
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