James R. Balmforth: Why Draining Your Retirement To Save a Doomed House from Foreclosure Before Filing Bankruptcy is a Mistake

Should I use retirement to pay a mortgage?

Twice in the last two days I have had the same discussion with two prospective clients. Each client owned a house that at the height of the market was worth over two million dollars. In each case, the client had encumbered the house with a loan for about a million dollars a few years back. Each client had suffered significant financial set backs related to the current economic recession. Both clients had been paying mortgage payments close to $10,000.00 per month from their retirement accounts for the past year, and both clients were now at the end of their rope, with their retirement accounts dwindled to a mere pittance.

Monday morning quarter backing on the eve of filing bankruptcy does not bring back a depleted 401K or IRA. But there is a lesson for others in these two cases. Before tapping out your 401K or IRA to continue paying a mortgage on a house that is doomed to end up in foreclosure, know your bankruptcy options.

Retirement accounts are often exempt in bankruptcy

Nearly all retirement accounts that are governed by the Employee Retirement Income Security Act (ERISA, as it is called), including pensions and 401Ks, are not assets of a bankruptcy estate because they almost all universally contain an anti-alienation clause that protects them from the reach of creditors. Due to recent amendments to Section 522(n) of the Bankruptcy Code, Individual Retirement Accounts (IRAs), and other similar retirement savings vehicles, while assets of the estate, enjoy special protection capped at $1 million.

What does all this mean? It means in most cases, all the money drained from retirement accounts to keep a doomed mortgage out of foreclosure for an extra year, could have survived a bankruptcy. Retirement accounts exist to help you survive in your twilight years. It does you no good to waste these assets to delay an otherwise inevitable foreclosure. If you find yourself in this situation, before draining your 401K or IRA, talk with a bankruptcy lawyer with experience in foreclosure defense about your bankruptcy options and foreclosure defense options.

How Can I Repair My Credit?

Whether you filed Bankruptcy or have faced foreclosure, repossession or a delinquency on a loan, it is a fact of life that your credit score can fluctuate. Access to credit is important when applying for a car or home loan or when starting a new business, the lower your credit score, the higher your interest rate will likely be.

Improving credit after bankruptcy or foreclosure

FICO scores range from 300 to 850; the median score is 723. To get the best rates, you’ll usually have to have a score of at least low- to mid-700s, so how can you repair your credit score after it has been damaged?

Credit Repair Steps to take

Unfortunately, it is far easier to bring your credit score down than it is to make improve it. Nevertheless there are steps you can take.

Step #1: visit annualcreditreport.com

Start by visiting www.AnnualCreditReport.com, a website set up under federal law to give consumers access to their credit reports. Be on the lookout for impostors, AnnualCreditReport.com is free, there will be no need to supply your credit card or make any payment. There are three different consumer credit agencies (Experian, Equifax and TransUnion) that compile information that factors into your credit score. Not surprisingly, the three agencies don’t always agree. It is important that you go through each report and identify any errors. Did you recently pay off a debt that is listed as delinquent?

Step #2: Write to the credit agencies

It is important to write to the credit reporting agencies both to correct errors as well as to explain any delinquencies. It is perfectly reasonable to write a letter to the credit reporting agencies explaining why you have been late on a mortgage or were forced to file for bankruptcy. Lenders view your credit score in its proper context. Perhaps you have been a victim of mortgage fraud and were forced to file bankruptcy to protect your assets from an aggressive lender. Maybe the economic downturn has caused a salary decrease that made it hard to stay current on car payments. Whatever the Cause of your credit taking a hit, it is crucial that you weigh in on the problem and voice your perspective. It can help.

Step #3: pay your bills on time

I advise my clients who have filed for bankruptcy to be meticulous in paying every bill on time after filing. The same principle applies to anyone trying to repair their credit as payment history is one of the biggest factors in determining your credit score. It may be a good idea to open a single credit card, use it only for groceries and then pay the balance in full each month.

Step #4: debt to income ratio

Filing bankruptcy can actually improve your credit score. Why? Because another factor lenders use in their underwriting process is how much of a debt load is the potential borrower carrying? Are they swamped in debt? If the answer is yes, they will be less likely to be able to service more. When large chunks of credit card debt are discharged in bankruptcy it can often have a positive impact on credit just a few months after filing.

Step #5: be patient

Your credit history factors into your score as well. The longer you’ve been borrowing and paying on time the better. In some ways this is the lender’s way of developing a friendship with you. When you meet someone for the first time, you might like them but can only develop a friendship or romance over time. If you have been paying your bills for a long time, lenders are more likely to court you.

Be of good cheer, with a little patience and responsible use of credit, your score will improve.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.