Saving Homes in Bankruptcy: Housing Affordability and Loan Modification

This article examines the home affordability of chapter 13 bankruptcy debtors under current law, which prohibits the cram down or modification of residential mortgage loans. Using original empirical data from a national study of over 1700 chapter 13 bankruptcy cases, it analyzes the relationship between housing costs and income for bankrupt households. More than two-thirds of homeowners in chapter 13 bankruptcy live in unaffordable or severely unaffordable housing, according to the standards developed by the Department of Housing and Urban Development. Such families spend more than 30 percent of their incomes at the time of bankruptcy on paying their mortgages and related housing costs. The large fraction of their incomes that bankrupt homeowners commit to paying their housing cost reduces the odds that they will succeed in saving their homes in bankruptcy and completing their chapter 13 repayment plans. The Article considers how these data could inform the debate about whether Congress should amend the Bankruptcy Code to permit the modification of home mortgages, offering examples from real bankruptcy cases to show the beneficial effects of mortgage modification to create sustainable homeownership. It concludes that permitting mortgage modification would enhance the usefulness of bankruptcy as a tool to address the foreclosure crisis