What Can I Do When My Building Is Worth Less Than I Owe?

In the last five years, property values have fallen leaving many  people owing more money than their property is worth. If you own a  building with rental apartments, you may be able to reduce what you pay  to only what the building is worth by filing a Chapter 13 bankruptcy and  using a cram down or bifurcation. 

The  terms “cram down” and “bifurcate” essentially mean the same thing. In a  Bankruptcy a cram down is where the amount you pay for an asset gets  crammed down to what it is worth. You have to pay 100% of the value of  the collateral, plus interest. The remainder, however, is repaid at a  reduced percentage, usually only about 10%. This can result in thousands  of dollars in savings.

For a single  family house, the cram down is not available because of the special  treatment written into the Bankruptcy Code. So for a primary residence,  the mortgage terms can’t be changed. This leaves the average homeowner  with the sole option of repaying what is owed.

But,  this anti-modification provision does not apply to rental property. The  same holds true if you live in one unit and rent out one or more  apartments or any other property you do not occupy as your primary  residence.

WHAT DOES THIS MEAN?

Assume you own a 2 flat worth $100,000 but you owe the mortgage company $130,000.

In  a Chapter 13 you can repay the mortgage company $100,000 plus interest  over a period up to 5 years. (For reference, $100,000 at 5.5% interest  over 5 years is $1,910.12 per month.) The remaining $30,000 will be paid  a dividend of only about 10% or $3,000 resulting in a savings to you of  $27,000.

The Chapter 13 payments would  also include trustee’s fees, likely your lawyer’s fees, and any other  debts which can also be paid a reduced percentage of what is owed.

REQUIREMENTS

  1. When  the mortgage was obtained it must be clear that at least one unit would  be rented or that you are buying a single family home (or condo) as an  investment to be rented.
  2. The application must be accurate. The mortgage company will examine the loan application and documents very closely.
  3. You  must obtain a good appraisal with an appraiser who will be willing to  testify if necessary. The mortgagee has the right to obtain its own  appraisal.
  4. You will be required to pay both the current real estate taxes and hazard insurance yourself.

OTHER POSSIBILITIES

  1. A loan that includes your home and any other asset such as business property or even your car.
  2. A mortgage that includes more than one piece of real estate.
  3. If  by the terms of the mortgage it must be paid within 5 years, it can be  bifurcated-even on a single family home where you live.

IF YOUR BUILDING IS AT RISK

Chapter 13 offers many options for dealing with a building and the mortgage on it.

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