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Sam Calvert


The United States Supreme Court may give us an answer to the following question: If you have a home with a first mortgage that exceeds the value of the home, can you use a Chapter 7 bankruptcy to “strip off” a second mortgage?

Most of the judicial circuits around the country do not permit this in a Chapter 7, although most cases DO permit a person to do this in a Chapter 13 payment plan bankruptcy.

The case pending at the US Supreme Court is entitled “Bank of America, N.A., v. Caulkett” and comes out of the 11th Circuit.

The Caulkett case is linked with another case, Bank of America N.A., v. Toledo-Cardona.

The Caulkett case is 13-1421. The Toledo- Cardona case is No. 14-163.

This link should lead you to the 11th Circuit decision in the Caulkett case

The decisions are very brief, and basically hold that the 11th Circuit cases of McNeal and Folendore hold that this can be done in a Chapter 7.  Those case are: Folendore v. U.S.Small Bus. Admin., 862 F.2d 1537, 1538-39 (11th Cir. 1989) and McNeal v. GMAC Mortg., LLC, 735 F.3d 1263, 1265–66 (11th Cir. 2012) (percuriam).

This does not sound all that exciting, until you realize that being able to strip an underwater second mortgage in a Chapter 7 would tremendously help homeowners in that situation. Many people could handle their first mortgage payments, but cannot pay both their first mortgage and their second mortgage.

The decision will be big news in the bankruptcy world when it is announced. I will certainly post when the decision comes out.

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