Expert: Terry Leeders - 4/20/2007

Question
My husband and I bought our first home in July of 2004. The morgage is in his name, the deed in both. We made payments for about a year until my husband fell sick with cancer. Treatment caused us to leave the state often and drain any savings we had. We made payments as we could but fell behind. In between my husband filed a chapter 7 bankruptcy due to medical bills piling up. The morgage company never re-affirmed the morgage in the time given to them. We tried to set up payments with them, they returned our payment stating it was 1 day late. Since then, they sold our morgage to another company who also wants an astronomical amount to catch up. We are currently financially stable and able to pay for the house, but have no savings due to the cancer and am unable to pay extra on the house. We were sent a notice stating the foreclosure lawyer was going to appear in court on april 18th or any day thereafter to request foreclosure and assign someone to sell the home. We were never summoned to come. Now my husband wants to try to file a chapter 13 to save the house. We are expecting a huge settlement near the end of summer over the cancer and are trying to buy time until then. We have 4 children and do not want to move them again. My concern is can we file a chapter 13 on the house since it was never re-affirmed after his chapter 7 which was filed in 2005. Thank you for any advice you can give us in advance.  

Answer
Yes, you can file a chapter 13.  
Although the law states you cannot get a discharge in the new case because the filings are so close together, the goal of the chapter 13 is to stop the foreclosure process in order to buy time until you get the settlement.  

You also may have a defense to the foreclosure, where an attorney may be able to go in and delay the foreclosure process until you get the settlement.  

If you live in Illinois, Give us a call, as we handle both Chapter 13 and foreclosure defense.