Syracuse, NY asked in Bankruptcy, Foreclosure and Real Estate Law for New York

Q: Bankruptcy accelerates a debt, thus, does bankruptcy starts the clock for the statute of limitations to foreclose?

The statute of limitations to foreclose in new york is 6 years from a triggering event. As far as I know, courts have agreed that a lender's acceleration of the debt constitutes a triggering event. Bankruptcy also accelerates the debt ( “Bankruptcy operates as the acceleration of the principal amount of all claims against the debtor” H. Rep. No. 595, 95th Cong., 1st Sess. 352-53 (1977) ).

The question: Is a debt discharged in Chapter 7 a trigger of the 6 years statute of limitations to foreclose (assume the property was not surrendered, but abandoned by the trustee to the owner because the lender refused to sign a reaffirmation agreement). If it does not triggers it, why not, and is there any case you can refer either on the positive or the negative? thanks!!

Please avoid unrelated issues such as "bankruptcy tolls the statute". I think the question is clear, I am talking about starting the clock after discharge and closure of the case. There is neither automatic stay nor tolling.

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3 Lawyer Answers
PREMIUM
Answered
  • Bankruptcy Lawyer
  • Brooklyn, NY

A: You are totally confused. Filing Bankruptcy stops foreclosure unless the Lender makes a successful motion to vacate the automatic stay. Only a mortgage foreclosure defense and bankruptcy attorney has the expertise to prevent you from having more problems than you can possibly imagine. To properly answer your questions and address your concerns, the best way to handle this is with an in person consultation. You need to retain the best mortgage foreclosure defense and bankruptcy attorney you can afford. You should not be restricted by geographic factors. Pick the best lawyer you can find and remember one rule: a good lawyer is generally never cheap, and a cheap lawyer is generally never good so don't choose based on price.

Barry Eran Janay agrees with this answer

Answered
  • Bankruptcy Lawyer
  • New York, NY
  • Licensed in New York

A: No. In fact bankruptcy tolls the statute in certain circumstances.

Barry Eran Janay agrees with this answer

Answered
  • Consumer Law Lawyer
  • Montclair, NJ
  • Licensed in New York

A: The trigger was the first default / failure to pay on the note associated with the mortgage. Once that happened the lender had the option to accelerate the debt and declare it all due. Since your question is primarily about the statute of limitations that is the date that most reasonably the time to foreclose would be based on. The automatic stay in bankruptcy court would prohibit the lender from taking any collection efforts (filing a foreclosure action for instance) unless they requested and were granted a relief from the stay by the bankruptcy court. Get a lawyer to help you, a good lawyer (there are plenty out there) is usually money well spent.

1 user found this answer helpful

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