How Do I Stay Foreclosure of Homesteaded Property?
Full Question:
Answer:
In foreclosure lawsuits, the debtor typically asks the court for three things, in the following order:
-a temporary restraining order (which lasts for a certain number of days, typically under 2 weeks)
-a preliminary injunction (will last until the court decides the case), and
-a permanent injunction (which will be granted if you win your case).
The filing of any bankruptcy action automatically stays a foreclosure proceeding, regardless of type. At that point, whether the stay will be lifted depends on whether the mortgagor has equity in the mortgaged property. If the bankruptcy has been filed under a Chapter 11 petition, the bankruptcy court may "terminate, annul, modify or condition such stay" for cause, including the lack of adequate protection of an interest in property of the mortgage holder, or if the mortgagor does not have equity in the property and the property is not necessary for an effective reorganization.
In Virginia, the homestead exemption doesn't apply to child support payments owed, money owed to a lender for the purchase of the home, tax levies, or damages from trespassing animals.
The following are VA statutes:
§ 34-3. Articles not exempt from taxes or levies or for their purchase
price. —
The exemptions under §§ 34-4, 34-4.1, 34-26, 34-27, 34-29, and 64.1-151.3
shall not extend to distress or lien for state or local taxes or levies,
nor to levy, distress, or lien for the purchase price of any
articles claimed as exempt or any part of the price thereof nor for fines and
damages or either arising from trespass by animals under § 55-306 as to
such animal so trespassing. If an article purchased and not paid for is
exchanged or converted into other property of the debtor, such property
shall not be exempt from payment of the unpaid purchase money debt.
Section 34-4. Exemption created.
Every householder shall be entitled, in addition to the property or estate
exempt under Sections 23-38.81, 34-26, 34-27, 34-29, and 64.1-151.3, to hold
exempt from creditor process arising out of a debt, real and personal
property, or either, to be selected by the householder, including money and
debts due the householder not exceeding $5,000 in value or, if the
householder is 65 years of age or older, not exceeding $10,000 in value.
In addition, upon a showing that a householder supports dependents, the
householder shall be entitled to hold exempt from creditor process real and
personal property, or either, selected by the householder, including money or
monetary obligations or liabilities due the householder, not exceeding $500
in value for each dependent.
For the purposes of this section, "dependent" means an individual who
derives support primarily from the householder and who does not have assets
sufficient to support himself, but in no case shall an individual be the
dependent of more than one householder.