Chapter 7 is sometimes called “straight bankruptcy”. Under Chapter 7, the Court will discharge (wipe out) many of your debts. Credit card debt, medical bills, and unsecured loans are typically discharged. Debts that have collateral, such as a car loan or a home mortgage, must be reaffirmed in order to protect the collateral. A reaffirmation is an agreement that the debt will not be discharged. Some debts, such as taxes, student loans, and divorce or child support obligations cannot be discharged in Chapter 7. Chapter 7 may be a good choice if you have unsecured debt that you cannot pay and have few secured debts. However, many factors must be considered before deciding whether bankruptcy is necessary and, if so, what type of case to file.

When a bankruptcy case is filed, with few exceptions an “automatic stay” goes into effect. The stay prevents creditors, including mortgage lenders, from taking any action to collect a debt. If a foreclosure is pending, it must be stopped. If you file a Chapter 7 bankruptcy, however, the foreclosure may only be stopped temporarily. The lender will likely file a motion for relief from the stay. Such motions are routinely granted by the Courts. This will allow the lender to start the foreclosure process again.
 
Usually, the better alternative to deal with a mortgage arrearage is Chapter 13. Chapter 13 allows an individual or couple with regular income to deal with their debts by making regular payments to a Chapter 13 Trustee over a period of 3 to 5 years. The plan can cure an arrearage on a home mortgage over a 60 month term, and deal with other short-term debts such as credit cards, car loans, and medical bills. This can free up funds so that future mortgage payments can be made in a timely manner.
 
In addition, in many jurisdictions a Chapter 13 plan can “strip off” a second or third mortgage on property, if the property value is less than the amount owed on the first mortgage. Once the lien is stripped off, the 2nd mortgage can often be paid little or nothing through the plan, and the remaining balance completely discharged at the conclusion of the plan. (Lien strips are also available in Chapter 7 cases in many jurisdictions, but stripping off a junior lien still does not solve the problem of an arrearage on the first mortgage.)
 
Another huge advantage of Chapter 13 is that your attorney fees can be included in the plan, so that the case can be filed without a big upfront expense.
 
Deciding whether to file a bankruptcy case, and if so what chapter to file under, can be complicated. It is critical to get good advice from a qualified and experienced bankruptcy attorney before making your decision.

Georgia has a non-judicial foreclosure process. This allows a mortgage holder to foreclose much more quickly and simply than in many other states. The mortgage holder must run a notice in the official legal organ (newspaper) for the county where the property is located. The notice is run for four (4) consecutive weeks. On the first Tuesday of the following month, the property is sold at a foreclosure sale on the steps of the county courthouse.
 
In the large majority of cases, the property is purchased at the foreclosure sale by the mortgage holder. Of course, in some cases the property is purchased by another individual or investor. Once the foreclosure deed is prepared and recorded, the buyer will typically contact the persons residing in the property and demand possession. If the residents refuse, the buyer can initiate a dispossessory process in court to have the residents and their personal property removed.
 
The dispossessory process can also be very quick. In many cases an order is entered within a month after the action is filed. The order allows the new owner to remove the current residents and their belongings, and directs the Sheriff’s office to assist in the removal if necessary.
 
Most mortgage lenders want to take possession of foreclosed property without conflict or delay. In many cases the lender will offer to pay the residents some amount to cover moving expenses. If your property has already been foreclosed, it may be in your interest to contact the lender and discuss this.
 
I. VOLUNTARY ACTION. Of course the lender can voluntarily stop the foreclosure process if it chooses to do so. In some cases, the lender will suspend the process if it is satisfied that the property owner can promptly cure the default, if a sale of the property is pending, or if it is considering a mortgage modification. HOWEVER, it can be dangerous to assume a lender is stopping the process without getting verification in writing. Some lenders will make false assurances that the process is being stopped, but continue running the newspaper notice and moving toward the foreclosure sale. ONCE THE SALE HAS TAKEN PLACE, IT MAY BE TOO LATE!! Unless you are certain the process has been halted, it is very important to continue looking at all your options.
 
II. SUPERIOR COURT INJUNCTION. If you believe that the loan is not in default, or that there are other legal grounds that would prevent the foreclosure from proceeding, you can petition the Superior Court to injoin the foreclosure. This can be difficult and expensive, however. We strongly recommend that you have an experienced attorney review the matter and assist with any such petition. In most cases, this type of action will not solve the problem.
 
III. CHAPTER 13 BANKRUPTCY. Over 10 million American homeowners are “underwater”, meaning they owe more on their mortgage loans than their house is worth. While bankruptcy will not solve every mortgage problem, in many cases foreclosures can be stopped and mortgages reinstated through the use of a Chapter 13 plan. Chapter 13 allows an individual or couple with regular income to deal with their debts by making regular payments to a Chapter 13 Trustee over a period of 3 to 5 years. The plan can cure an arrearage on a home mortgage over a 60 month term, and deal with other short-term debts such as credit cards, car loans, and medical bills. This can free up funds so that future mortgage payments can be made in a timely manner. In addition, in many jurisdictions a Chapter 13 plan can “strip off” a second or third mortgage on property, if the property value is less than the amount owed on the first mortgage. Once the lien is stripped off, the 2nd mortgage can often be paid little or nothing through the plan, and the remaining balance completely discharged at the conclusion of the plan. Another huge advantage of Chapter 13 is that the homeowner’s attorney fees can be included in the plan, so that the case can be filed without a big upfront expense.
 
IV. CHAPTER 7 BANKRUPTCY. The filing of a Chapter 7 bankruptcy (commonly called “straight bankruptcy”) will stop a pending foreclosure proceeding in most cases. HOWEVER, Chapter 7 will NOT reinstate the mortgage or cure any default. In most Chapter 7 cases, the lender will ask the court to release the property so that the foreclosure can be recommenced. So, Chapter 7 is not a permanent solution. In some cases, though, Chapter 7 may stop the process long enough to allow the owner to cure any arrearages and reinstate the loan. If there is significant equity in the property (i.e. the property can be sold for more than what is owed), Chapter 7 can sometimes be used to allow for an orderly sale of the property. This can allow the homeowner to realize some of the equity rather than lose it through a foreclosure. In most cases, the homeowner can stay in the property while it is being marketed.
 
Whether Court action makes sense, and if so what type of action should be filed, is a complicated question. If you a considering taking such a step, DON’T DELAY. Meet with a competent and experienced attorney to discuss your options as early as possible. If you wait until the eve of a foreclosure sale, it may be impossible to get a case filed in time to stop the foreclosure.

You will meet with an attorney at your initial consultation.

Some other law firms have you meet with an assistant or paralegal first. With these firms, you may not even meet your attorney until your first court date. We feel it is important to meet face to face, so you can shake hands with the person who will actually represent you and get to know them. Most importantly, a paralegal or assistant cannot properly assess your options and advise you about the pros and cons of the bankruptcy process.
 
You will receive advice specific to your situation
Most people have a general idea of how bankruptcy works, but do not fully understand how it applies to them. This leads to misunderstandings about who can file for bankruptcy, which debts are eligible for discharge, and what happens with property and belongings. The initial consultation is our chance to clarify bankruptcy laws and how they apply to you and your specific situation. We will discuss your goals and priorities, and outline the different options available to accomplish them.
 
You will not file bankruptcy at your initial consultation
Under certain circumstances (foreclosure, repossession, garnishments), we can file a bankruptcy case immediately following the consultation. However, we normally encourage our clients to take the time to consider their different options. We understand that filing bankruptcy is a big decision that should not be entered into without advice and consideration. We want our clients to be comfortable with both the case they are filing and the attorney representing them before going forward with filing.

Filing a bankruptcy case is not a cure all. In some circumstances, however, it may make sense to clear out old debt that you cannot pay so as to focus on rebuilding credit using debt that you can keep current. It is rarely a good idea to file bankruptcy just to help rebuild credit, but there may be other good reasons to file. In some circumstances, it is the only way to get a fresh start. The decision to file a bankruptcy case should be made only after consultation with an experienced bankruptcy attorney.