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Everything posted by jq26

  1. Des, agree 100% regarding never banking there. They are useless and I advise clients to close accounts and join a corner bank or credit union. Wells Fargo was written off for other reasons as well. I was going to refi a property in 2009. I spent 15-20 hours gathering documents and taking a day off of work to make this happen. Supposedly I was coming in to sign the papers and fund the loan...when I get there I spend 2 hours waiting for the loan rep then she tells me that she can't get it refinanced because it isn't owner occupied but she'd like to talk to me about a refi on my primary residence. Another bank beat their refi rate by 125 bps six months later, so it worked out for the best. But it was a good example of incompetence at its best. Off topic, but WF is a terrible bank!!!
  2. Administrative holds are okay in third circuit as well. WF is starting to do them more and more, but they ALWAYS send a fax and letter to my office with a form letter than can be forwarded to the trustee to direct them to release. The trustees in this district will direct the bank to release the funds- some trustees will allow the release to occur within a week or so, others require testimony at a 341 before they'll direct a release.
  3. A little late here, but your BK lawyer needs to file a motion to sanction Wells Fargo Bank. Note that your lawyer also had a duty to file a motion to avoid the lien upon your account. Two easy motions, and could result in a check for you and attorney's fee reimbursement. Most BK judges would not appreciate this, and would probably force them to reimburse you all the money plus pay your attorney for his/her time on the motion.
  4. Disclaimer: I did not read all the responses to your original post. But here's my take: 1) Once through a Chapter 7 (assuming no reaffirmation), the mortgage note is discharged. There will be no coming after you for deficiency should you walk away. (As a side note, in my district it is IMPOSSIBLE to reaffirm a mortgage- judges deny them automatically because they serve no purpose and w/out a reaff you are eligible to modify under HAMP under the HAMP guidelines anyway, case law overwhelmingly supports this). Your mortgage is ALWAYS included in a Chapter 7 discharge by law- that is a different question as to whether or not you keep the home. 2) A modification IS NOT a reaffirmation. You can go through a 7, discharge the personal obligation on the mortgage, sign a modified note, then walk away later without worry of a deficiency. Again, case law supports this. 3) Assuming your rebuild your credit, you will qualify for a good mortgage rate 36 months after the later of the Chapter 7 discharge or the foreclosure sale of your home. Smaller banks may work with you earlier than that, but mid to large banks sell their loans into the secondary GSE market (Fannie Mae and Freddie Mac guidelines require 36 month seasoning). Good luck. Hope your mod works out for you.
  5. Not a big deal, I've been through about half dozen of these audits. The UST spot checks cases to assure integrity in the process. If you were truthful with your attorney and your attorney did a reasonable job, then nothing to be concerned about. Note that the UST (similar to the IRS) seems to target filers with small businesses because it is much easier to fudge income and assets when it comes to business owners. Fear not, the UST will sniff around and annoy you, but if you were truthful you have nothing to fear.
  6. It should not report as charged off. The fact that CM decided to release the lien early (your BK order does not actually strip the lien until you complete the plan) does not allow them to report negative information on your report in violation of the stay. Dispute it. If it comes back verified, then talk to your bk attorney. You could seek sanctions if you wanted to make an issue of it.
  7. Subject to a thorough examination of the net equity of the home and Colorado exemptions, which I can't speak to, don't pay the credit cards. You can easily file a Chapter 7 for her. If your mother lacks mental capacity, then you file a Chapter 7 on her behalf and then the same day you file the case, the attorney should file a "motion to appoint a next friend pursuant to rule 1004.1". Be prepared to show the judge a note from an MD. Most judges will hold a five minute hearing, approve the appointment, and allow the filing to proceed. Save the money for her grandchildren's education, or for her children's retirement. No need to pay the debt.
  8. In 99.9% of cases, keep paying the furniture and don't reaffirm. Not a preference issue (secured need to be paid) and the furniture company doesn't want the assets. They want payment. This happens all the time, particularly with furniture and jewelry.
  9. More to your core point, the trustee does not monitor the bank accounts after filing. But that does not matte here. The income statement from the rental property and any monthly net proceeds is an asset of yours. The question is, is it an asset worth taking. That does not require monitoring your bank accounts. The trustee knows what's coming in and out from your schedule I/J anyway, which is a forward looking set of schedules.
  10. Here in Pennsylvania, this is a non-issue. The rent comes in, then it goes out. Sure, its income for the purposes of the means test, but if the trustee wants to take the rents to pay creditors then they take the liens associated with it. The mortgage and real estate taxes need to be paid to generate the rent proceeds. If there is large NET rental income, then the property may be subject to seizure as an asset. This is highly unlikely in most chapter 7 cases. Twice I have had a trustee threaten to take rent proceeds because my client was collecting rent and not paying the mortgage or real estate taxes. I argued that the mortgagee (bank) had a lien on rent proceeds (standard language in mortgages), and that the proceeds were untouchable by the trustee even though the bank had not yet moved to attach rents. Both times, the trustee backed off. One other issue- there has to be a bare minimum of $5,000 - $7,000 of easy assets to get to for a trustee to mark the case as an asset case. It takes nine months and numerous reports for a trustee to administer an asset case. A trustee usually bills out at $350/hour, and there has to be the likelihood of a meaningful distribution to unsecured creditors after all costs of administration (determined at the time the trustee makes the decision to mark as asset or not, not after marking as "asset" and discovering new facts). I would suggest that 10% of my clients have rental properties. I have yet to have a trustee get to the rents or take a property. Do please understand that state law varies.
  11. This might be an old post at this point, but (1) homestead is only for residence. (2) tax valuations are almost always not fair market value, but partial value, then a multiplier (which varies every year) is applied to get to fair market value. (3) In my district, if a real estate agent can show the trustee that after paying all liens, commissions, and exemption, there is more than $10,000 in net equity for creditors, they'll list and sell. (4) this is why you get appraisals and an attorney if messing with a Chap 7 with potential assets. (5) you need to get an appraisal, a GOOD attorney, and then consider filing a motion to abandon, it costs $180. But you better have your ducks in a row before you file. Good luck!
  12. Always list, list, list, serve, serve, serve. No harm in listing creditors that may not be creditors, but if the creditor does not know of your case and can make an argument that they had grounds to seek non-dischargeability, then the debt may not be discharged. You need to do your due diligence. Every case always faces a bit of this quandary, particularly when it comes to medical debt. One trip to the hospital can leave you with a dozen separate creditors, some of which don't come out of the woodwork until post-petition. Do the best you can, that's all.
  13. If the trustee perceives non-exempt equity worth his or her time, then they will first get their realtor out for a look. The realtor will report back to the trustee a realistic selling price. If its truly worth $20k and you owe more, then no worries. The trustee will leave the case as "no-asset" and put forth the required NDR "No Distribution Report" and then request their duties as trustee be concluded. If the realtor believes there is non-exempt equity, then the case is marked as an "asset" case and a sale sign will be placed upon your home within a month. usually the trustee will allow you to occupy the property during the sale process. If it doesn't sell, then the trustee can switch the case back to "no asset" and follow the earlier-described process.
  14. Agreed. No way to remove, aside from disputing as "not mine" and seeing if the CRAs will remove it.
  15. Judgments usually last 20 years, the 5 year renewal requirement has to do with priority of lien. My advice- there are very little assets involved here. This attorney sounds like he/she is very conservative. Relax, and find a more aggressive attorney. This case is an EASY no asset Chap 7 case in my area.
  16. 1) assumption or rejection of lease = deadline is 90 days from date of filing 2) if judgment obtained for eviction, then NO STAY is ever in place. (I filed a case 10 minutes before judgment two weeks ago for a client in order to avoid this problem). 3) In PA, which is where most of my cases are located, rent accrues post-petition after the 90 day period. So essentially free rent for 90 days then damages can accrue. This has not been fully flushed out yet. Landlords need to time their motion for relief to lift the stay in order for a hearing to be held around the 90 day mark, then file a complaint to evict in state/local court.
  17. 11 U.S.C. 553. http://www.law.cornell.edu/uscode/text/11/553 When you owe them and they owe you and you file a bk, then adios deposit.
  18. Common problem. A 982 should take care of it. Be sure not to stick your head in the sand. As the years go by, the IRS will not forget and it becomes harder to fight.
  19. My opinion purely from what you posted- Not on the hook for post-petition rent. Stay violation for attempt to collect on you. The landlord has a perfectly valid right to keep the security deposit under bk law. It is a setoff. Can't take anything more- can't ask for anything more!
  20. In addition, it has to be worthwhile for a bk trustee to mark a case as "asset". Trustees receive compensation pursuant to 11 U.S.C. 326. If there is only a few thousand in non-exempt equity, no trustee in my district even dreams of opening an asset case (ie you stay as a no asset and discharge with no handing over of assets). It takes about a year to get through an asset case. Motions, reports to the court, a final tax return by the estate, etc. A real pain for the trustee...so if not worth their time, no issues. So don't sweat it.
  21. You can do a loan mod yourself. Just be persistent (call them at least twice a week and check in with mod rep). Note that if you get a loan mod, you need approval of the Chapter 13 court before the lender will approve the final mod. That's done by motion. And, if your mortgage payment is reduced and you want to stay in the chap 13 plan, then the Chap 13 payment may be impacted (ie worse case scenario it goes up by an equal amount of the mortgage payment reduction). Not always though. It depends on your schedules I & J and the practice of your local trustee.
  22. Kind of funny to see this...when I bought this house in October 2009 I dumped most of what I had in order to put down 25%. I can't (and won't) buy individual stocks in a 401k. I then sold most everything else in October 2010 when I refinanced the rental property from 6.375% 30yr to 3.75% 15yr. The monthly payment is actually less and I knocked12 years off the loan. They did require about 30% down- hence I sold anything left and wrote a small check at the closing table in order to boost equity. I am looking at APPL now though. I could see this making its way to $1000/sh. When you back out the $146,000,000,000 of cash on its books, this cash machine is selling at such a low PE it makes no sense. But market looks fairly priced, maybe a bit frothy now...a monkey throwing a dart back in 2009 should be up 100% now! Hope people loaded up!!! Love these old posts!!!
  23. Agree with Des above. I have numerous clients who come to me with no money to file, then need to place title loans on their vehicles in order to expedite filing due to a nasty creditor (think sheriff at the door levying on personal goods such as their children's crib and toys). Only once did the client get asked specifics about why they did this by the trustee. And it was by a nasty trustee who is always looking for a reason to torpedo attorneys. It was more along the lines of "were you advised to do this....", which had nothing to do with any potential use of strong arm powers. So do what you have to do. But please pay that nasty loan off shortly after you file. The interest rates are usually terrible.
  24. Old thread, but if it is pre-petition arrears then answer the motion stating a lack of basis for relief based on the fact that the trustee is to pay the arrears. If it is post-petition arrears, then you either PAY THE ARREARS IN FULL or if you cannot, then call the attorney who filed the MFR and agree to "stipulate" to either pay additional mortgage amounts to get caught back up or see if the lender will allow the post-petition mortgage arrears to be shoved back in into the Chapter 13 plan. The plan then has to be modified by motion.
  25. The debt is still legit. If your attorney reviewed your husband's credit report and knew that there was joint liability, unless there was a special circumstance, I'm not sure why you didn't file. When one party files a bankruptcy on joint debt, the other party is still 100% liable (one caveat- in a Chap 13, there is a consumer debt codebtor stay, but not applicable here).
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