if there a way I can negotiate with the judge to put a lien on my home insteaf of allowing a wage garnishment regarding an unpaid second mortgage?

UPDATED: Sep 14, 2012

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if there a way I can negotiate with the judge to put a lien on my home insteaf of allowing a wage garnishment regarding an unpaid second mortgage?

I filed for Chapter 7 just about 2 years ago and was discharged 6 months or so later. I was able to keep my home but had to pay a second mortgage, However, due to only 1 income at home (husband has been unemployed for 2 years) I live paycheck to paycheck, So I stopped paying the second mortgage; reaffirmation was denied by the judge. They sold my account to a collection agency because on my credit report it states it was transferred to recovery. They have not started hounding me yet but when they take me to court and put a judgment against me I know they can garnish my wages. If they do that I will not be able to survive,

Asked on September 14, 2012 under Bankruptcy Law, Florida


Catherine Blackburn / Blackburn Law Firm

Answered 10 years ago | Contributor

The second mortgage company already has a lien against your home.

I am not entirely clear on the status of your bankruptcy case - is it still open?  It sounds like your debts were discharged and the case closed.  If that is correct, this bankruptcy case is not the place to resolve the second mortgage.

You say that the second mortgage holder has not "started hounding" you yet, so you don't know how they will attempt to collect the debt.  The proper remedy to collect on a second mortgage is to foreclose on the home.  I suspect this is the action they will take.  When they take it is anyone's guess

To garnish wages, the company would have to sue you, get a judgment, and then act to garnish wages.  First, that takes time and money (they have to pay filing fees & hire a lawyer).  Second, you can defend and that will make it take longer.  Third, even if they get a judgment, there are rules for garnishment.  They cannot just garnish all your wages; they can only garnish certain percentages.

Second mortgage holders know that the first mortgage gets paid first after a foreclosure and second mortgage holders often get nothing or close to nothing.  For this reason, they often negotiate and accept much less than the full value of their mortgage to settle the matter.

It sounds like you have landed on very tough times.  You can use some help, and when the second mortgage company starts coming after you, you will probably need help.  You might qualify for legal aid assistance but legal aid can only help a few people.  You may have to pay a lawyer to help you.  I suggest you call some of the lawyers who help people avoid foreclosure (be sure to call a lawyer's office not some of the other people who claim to help with foreclosure) and see what they charge.  That way, you and your husband can start making plans to raise the money and be ready when the second mortgage company takes action.

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