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Published December 18, 2011, 10:28 PM

Money Talk: Consider filing for bankruptcy if sued

Q: Several years ago, we were talked into getting what I believe was a predatory loan – a negatively amortizing mortgage for 100 percent of the purchase price of our home.

By: Liz Weston, INFORUM

Q: Several years ago, we were talked into getting what I believe was a predatory loan – a negatively amortizing mortgage for 100 percent of the purchase price of our home. The loan broker assured us we could refinance the following year to a more traditional mortgage.

We paid the minimum monthly payment required, which didn’t cover all the interest owed, so that amount was added to our mortgage balance. Like others, we have experienced the nightmare of the current housing market, and with the negative amortization adding on even more debt, we are severely underwater.

We’ve worked with two companies trying to get a workable loan modification, but to no avail. The bank is not cooperating at all.

A lawyer I consulted is advising us not to pay at all going forward, saying that the upside-down home isn’t worth saving or worth the grief. She told us to put our payment amounts into savings so that we have something to live on after we have to leave the home, which I so far have been able to do. But I’m worried about the potential fallout.

Would we be required to pay taxes on the remaining balance we owe after a foreclosure? If we can’t afford to pay the taxes on $200,000 of untaxed income (that we really didn’t earn), what do we do then? Does bankruptcy help with that?

A: When a lender cancels or “forgives” debt, it typically sends you a Form 1099 for the amount of forgiven debt. This amount usually must be included as income on your tax return. But there’s a big exception when it comes to mortgage debt secured by your primary residence.

The Mortgage Forgiveness Debt Relief Act of 2007 generally allows you to exclude from your income the debt that’s left over after a foreclosure. The law applies for the calendar years 2007 through 2012.

You can find more information about the act in IRS Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments, as well as in IRS news release IR-2008-17.

In some cases, lenders aren’t content to write off the excess debt and instead decide to pursue homeowners after foreclosure for the remaining balance owed. You may be protected by state law from such a lawsuit (as homeowners in California typically are), but you’ll want to discuss this possibility with your attorney. If you are hit with such a lawsuit, you may need to consider filing for bankruptcy.

Q: Please warn people to be careful when they use ATMs. Some jerk posted an out-of-order sign on the outside ATM at my bank to get people to use the inside ATM, which had a skimmer installed on it. The crooks managed to get $500 out of my account, but the bank was on the ball and called me. I denied the transaction, and the bank returned the money to my account.

People need to be aware of anything funny-looking about the ATM or the door lock. If there’s a piece of plastic sticking above or below the door lock, don’t use it. Personally, I don’t use the ATM anymore. I go inside to a teller to get cash.

A: People can be remarkably trusting when it comes to using ATMs. Stand-alone ATMs may be phonies, designed just to take your bank card information and PINs. Even ATMs attached to banks can be compromised, as your experience shows.

Some security experts advise avoiding stand-alone ATMs, and all advise being cautious about using any cash-dispensing machine. Before sticking your card into one, you should grab the slot where your card goes in and see if you can move it. If you can, don’t use the machine. If you enter your card and PIN into an ATM and get any kind of error message, alert your bank immediately, as that can be a sign of a compromised machine.

You don’t have to avoid using ATMs, but they should be used with caution.


Liz Weston is the author of “The 10 Commandments of Money: Survive and Thrive in the New Economy.” Questions for possible inclusion in her column may be sent to 3940 Laurel Canyon, No. 238, Studio City, CA 91604 or via http://asklizweston.com.

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