core function of Chapter 13
bankruptcy is helping families save their homes,194 which the Bankruptcy Code
effectuates by permitting debtors to cure any arrearage on a mortgage over a
reasonable time.195 Because mortgage creditors are most Americans’ largest
creditor, their actions in bankruptcies heavily influence debtors’ success in
saving their homes from foreclosure.196 A family’s ability to confirm a Chapter
13 plan or cure a default may turn on the amount fixed as owing to the mortgage
creditor.197 Debtors cannot easily generate additional disposable income if
alleged obligations to mortgagees magically increase or if fees multiply
without justification. The debtor’s ability to pay mortgage arrearages, as a
practical matter, determines the success of a case. Not only does plan
confirmation turn on this issue, if the debtor misses any plan payments, the
mortgage creditor frequently will seek relief from the stay to proceed with a foreclosure
and the debtor’s bankruptcy may be dismissed. Thus, the amounts of mortgage
proofs of claim have direct effects on bankruptcy’s usefulness as a home-saving
device.
Miscalculations about mortgage
debt have grave consequences for families at nearly every point in the
bankruptcy system. From the outset, debtors may be harmed if they make the
bankruptcy filing decision without correct knowledge of their mortgage debts.
If debtors underestimate the amount of their outstanding obligations to mortgagees,
which the data show occurs in the majority of cases, their attorneys may mis-advise. Conversely, if debtors overestimate the arrearage, they could file
bankruptcy without pursuing other types of relief, such as borrowing from
families or friends, seeking forbearance from the mortgagee, or selling an
asset. Debtors’ inability to report their mortgage debt with reasonably
accuracy indicates a serious shortcoming in the pre-bankruptcy counseling
process. The data suggest that attorneys who do not verify the mortgage debt
may give sub optimal advice to their clients. This situation could be one factor
that contributes to the low success rate of debtors.
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