When someone owes multiple mortgages on a property, even where the property is residential property, it is worth considering whether a Chapter 13 bankruptcy might provide that person the ability to strip off a junior mortgage lien. This requires evaluating whether the property value is insufficient to secure the junior mortgage(s). A debtor in a Chapter 13 proceeding may strip off a junior mortgage lien when the debt owed on a senior mortgage lien exceeds the value of the collateral. The gross value of the property without deduction for hypothetical costs of sale or other deductions must exceed the amount owed to the senior position lien holder. For lien stripping of a residential mortgage relief to be available, there cannot be a dollar in equity for the junior mortgage to attach to so that the junior position mortgage is wholly unsecured.
When a Chapter 13 debtor has stripped a junior mortgage lien, a claim for a stripped off mortgage is treated as an unsecured obligation to be repaid per the terms of a Chapter 13 plan along with similar unsecured claims such as medical debt or credit card claims (sometimes repaid at 0% if that is what the Chapter 13 plan provides to unsecured creditors). The Courts have ruled that even a Chapter 13 debtor who may not be eligible for a Chapter 13 discharge due to a prior filed discharged bankruptcy within relevant time periods may utilize Chapter 13 for lien stripping of a wholly unsecured mortgage if other eligibility and requirements of plan confirmation are met.
However, no such junior mortgage relief is available to a debtor in a Chapter 7 case because the Supreme Court in Caulkett has confirmed that Dewsnup v. Timm does not permit lien stripping in a Chapter 7 bankruptcy. But, Dewsnup is inapplicable to Chapter 13, according to In re Enewally, 368.F.3d 1165, 1170 (9th Cir. 2004). Lien stripping is permitted in Chapter 13 and the operative authority includes 11 USC §1322(b)(2), Nobelman v. American Savings Bank, 508 U.S. 324 (1993), In re Zimmer, 313 F.3d 1220 (9th Cir., 2002), and In re Lam 211 B.R. 36 (9th Cir BAP, 1997). Therefore, Chapter 13 bankruptcies can provide a valuable tool to some individuals which will allow them the ability to retain their property without being saddled long-term with a junior mortgage on a property that lacks value to secure that junior mortgage.