Question: We purchased our home in Gilbert with a $240,000 mortgage. After we purchased our home we borrowed $100,000 on a home equity line of credit (“HELOC”). The home is worth less than $200,000 now. Although we are trying to get a loan modification on our first mortgage loan of $240,000, even if we get the loan modification agreement we will probably not be able to stay current at this time with the monthly mortgage payments. In addition, we have not made any payments on our $100,000 HELOC for the last two months. We do not want to lose our home to foreclosure. My husband has just started a new job, and in the next year or so we may be able to get out of this mess. Can the homestead exemption under Arizona law protect us from foreclosure by either the first mortgage lender or by the HELOC lender?
Answer: No. First, the Arizona homestead exemption protects equity up to $150,000 in the principal residence of a homeowner, but this protection only applies to non-consensual judgment liens of creditors, e.g., collection judgments for credit card bills or medical bills. The homestead exemption does not protect a homeowner from consensual liens, e.g., liens on the home consented to by the homeowner at the time that the homeowner borrowed funds for a loan such as a mortgage loan, a HELOC, or a swimming pool loan. A.R.S. §33-1101. Second, even if the homestead exemption did apply, you have no equity to protect. Therefore, you should consult an Arizona bankruptcy lawyer to discuss possible bankruptcy protection to protect your home, including “stripping” of the HELOC as a second lien on your home, especially in light of the potential for improvement of your financial circumstances because your husband is employed again.