despritfreya

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despritfreya last won the day on July 19 2017

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  1. Pam, I am very pleased to read the good news and I am glad that we were able to help you in some way. Des.
  2. Not sure where I saw "Tucson". Maybe I am confusing Pam with someone on another forum with the exact same issue. Since this is not an uncommon problem that is probably what happened. Regardless, the case does not help Pam's situation. Des.
  3. Pam, The Castleton decision, which cites Judge Haines from his Rand decision is exactly what I have been saying. Unfortunately Castleton does little to assist you since you are not selling the home. In addition, the decision is out of Division 1 and, while it comports with the majority, is technically not binding on Division 2 where you are. You have a lender who simply will not lend if that judgment is not released. As @Harry Seaward has indicated, you can’t force the lender. Read Castleton again. Please note the reference to quiet title actions and recovery of legal fees under ARS § 12-1103(B). I do not handle quiet title actions so I cannot comment on the process but, it might be a way to get rid of the lien without reopening the bankruptcy case (assuming you can't get Midland to cooperate). It might serve you well to contact Gust Rosenfeld as that Firm represented Castleton. I don’t know what GR will charge for a consultation but I can tell you that the Firm is first rate and, while the dollars you are dealing with probably do not come close to the dollars involved in Castleton, there is nothing wrong with getting some info from the proverbial “horse’s mouth”. Please keep us posted. Des.
  4. Pam, 1. It is not rare for Midland (a junk debt buyer) to place a lien against someone’s real property and 2) the word “lien” is not determinative as to what is or is not recorded. Under Arizona law. . . A. Any creditor who obtains a judgment in any amount has the right to record that judgment with the County Recorder. Midland routinely records its judgments (been there-done that). B. A recorded judgment IS a lien against all real property with the exception of the homestead residence unless the homestead residence has more than $150k in equity after consideration of all consensual liens. I think you indicated you are in Tucson. Unlike Maricopa County, a public records search off of the Internet in your County is limited. Either get a copy of the recorded judgment from the title company or physically go to the County Recorder’s office for a copy. Regardless, based upon your later posts it does not appear to be a title company issue. The title report showed the lien. The lender ran it past it's own legal department or simply decided that the transaction was not worth it unless the lien was removed. My guess is the lender is telling you that the problem is with the title company in order to pass the buck. In reality, the lender does not want to risk being junior to the recorded judgment. Most title companies, when faced with the threat of lost business, will follow the law and close over a judgment lien as it relates to the homestead - but not if one of the parties to the transaction (the lender in your case) says “no”. I would argue that if the lender (who chose the title company) is not willing to move the escrow, the reason is because 1) it has a contract with the title company and 2) is the one that said “no” once it found out about the judgment lien. Since the lender controls the transaction, you are going to have to either find another lender (but may have the same problem) or get the judgment lien released or subordinated. Just my opinion having dealt with this issue on many occasions. Des.
  5. Pam, I applaud you for taking the initiative in contacting Midland directly and hopefully you will reach someone with half a brain and get the matter resolved. Barring that happening, the next step might be to have your bk attny contact Midland’s attny. Who was the attny for Midland back in 2013? That attorney may not represent Midland now. Midland, in one of my current cases, used the following attorney for its State Court judgment: JOHNSON MARK. LLC 1601 N. 7th Street, Suite 250 Phoenix, AZ 85006 Rhett Flaming-Buschman (SBN 031501) Jonathan D. Anderson (SBN 032058) arizona@jmlaw.pro 866-356-3838 I do not know if this firm can help but I can tell you that Mr. Anderson responded to my concerns quickly and professionally. If all else fails and/or you are unable to "buy" the lien release (which may be cheaper than going back to court), and since you are close to the cap for the exemption, reopening your bk to avoid the lien may be in the cards. How long has it been since you got your Discharge? Des.
  6. Since the problem is the title company and not the lender, have the lender move the escrow to First American Title. Assuming you have less than $150k in equity the judgment lien DOES NOT attach to your residence. It is unlikely that FAT will hold up the closing due to the recording of the lien if your equity is within the Arizona homestead exemption. Do you have more than $150k in equity? Next. . . Was the judgment entered/recorded before or after August, 2013? If it was entered/recorded before August, 2013 and was not timely renewed it died after 5 years, If it was recorded after August, 2013 (not sure of the exact date so figure August 1st) then it is a lien for 10 years. Again, the legal department at FAT will figure this out. As to the suggestion of reopening your bankruptcy case to avoid the lien (pursuant to ll U.S.C. 522(f)), such is not really necessary in Arizona. See In re Rand, 400 B.R. 749 (Bankr. D. Ariz. 2008) for a very good analysis: https://www.courtlistener.com/opinion/1812349/in-re-rand/ Good luck and keep us posted. Des.
  7. Pam, You are refinancing your current residence so, is it the title company or the lender that is giving you a hassle? Des.
  8. Not enough info. Please answer the following: 1. When you say the judgment was reversed what do you mean? Did the AZ Court of Appeals completely throw the case out or remand it back to the Superior Court for further determination? 2. If the judgment was completely thrown out why do you think your bk discharge has any bearing? 3. What are you attempting to do, buy a home or sell the one you live in? 4. Is the property you are trying to buy or sell in Arizona? 5. If selling, is the property your only residence? 6. If buying, will this property be your only residence? 7. If you are selling or buying in Arizona, what title company are you using? Des.
  9. If, after completing the means test you have excess disposable monthly income you generally do not qualify for a Chapter 7. If you file a Chapter 7 you could be forced out of it by either a dismissal or a stipulation to convert to a Chapter 13. If you do a Chapter 13 you are stuck in a 60 month Plan. A lot goes into determining what your Plan payment will, in the end, be. Form 122C (means test) which states as your “disposable monthly income”, what could be paid to the general unsecured creditors through the Plan, is not necessarily the issue. The means test is a backward looking analysis. Schedule I and J (your current budget based upon your current income and current expenses) is a forward looking analysis. Assuming you do not “qualify” for a Chapter 7 and elect to file a Chapter 13, generally your real budget (Schedule I and J) will determine your monthly Plan payment. This means that you may end up paying more to your creditors than what is minimally required. If, in the end, you are going to pay the equivalent of 100% of all debt you may wish to utilize credit counseling instead of bankruptcy. There are advantages and disadvantages to either solution. You should sit down with your attorney to review the means test to make sure nothing was missed and, if you are stuck in a Chapter 13, determine what you can afford to pay based upon your local procedures. Just remember, you will be expected to do some belt tightening as it relates to non-essential expenses. Des.
  10. You must disclose the transfer if it occurred within the 2 years prior to filing. The Trustee will have the right to recover the funds from your daughter. The Trustee, before he contacts your daughter, will most likely give you the opportunity to protect her by entering into a settlement to pay the bk estate the amount (or a portion thereof) of the transfer. As to the comment about emailing a potential attorney as a point of first contact . . . I agree - just don't. Get on the phone, set an appointment and meet with the attny. I don't understand the reluctance to TALK. Relying on electronic communication for a first contact IMO is not smart and shows a lack of personal interest in the problems one is facing. Des.
  11. Actually, 10 years is correct. A CRA may choose to remove the information sooner but it does not have to. Fair Credit Reporting Act: § 605. Requirements relating to information contained in consumer reports [15 U.S.C. § 1681c] (a) Information excluded from consumer reports. Except as authorized under subsection (b) of this section, no consumer reporting agency may make any consumer report containing any of the following items of information: (1) Cases under title 11 [United States Code] or under the Bankruptcy Act that, from the date of entry of the order for relief or the date of adjudication, as the case may be, antedate the report by more than 10 years. (Emphasis added.) Des.
  12. The form is not asking how you file taxes. Part one of the form is asking if you are married and whether or not you are filing a joint petition. Since you will be filing without your spouse you mark "Married and spouse NOT filing jointly". You then mark "Living in same household and not legally separated". Then follow the instructions and fill out both columns A and B to calculate monthly income (which is the gross income for the 6 full months prior to the month you file divided by 6). Des.
  13. You do qualify for bk. It just may not be a Chapter 7. Whose name is on the card or what the card was used for IS NOT the issue. Your husband's income supports the household. His income IS included in determining if you are above or below median income for a family of your size in your jurisdiction. If you are above median you must "qualify" for Chapter 7 by passing the "means test". If you do not qualify and you need bk you would be forced into a 5 year Chapter 13. Did the attorney you consulted with take the time to complete the "means test"? If not, try another attorney to see if you can "qualify" for a Chapter 7. Des.
  14. I believe "Insolvency Trustees" are unique to Canada (and maybe some other countries) but not the US. I doubt that posters to this forum know Canadian insolvency laws. I recommend you discuss the options with someone familiar with Canadian law. Of course, maybe some does know and will chime in. Des.
  15. The property is protected in a Chapter 13. It may not be protected in a Chapter 7. In a Chapter 13 you keep your non-exempt property so long as you agree to pay its value to your creditors. In your case, however, you claim you have no real interest in the property. Discuss with your attny listing the property on Schedule A as "50% bare legal title with 0% equitable interest" and value it at $0. In a Chapter 7 the Trustee could try to blackmail you (or your brother) to pay blood money to end an argument over "ownership". The property would still be listed on A as stated above but if an argument over ownership comes up, you or your brother would have to defend it. Your attny mentioned the two year waiting period because you are required to disclose transfers that happen within two years prior to filing. Trustees can typically look back four years but the Statement of Financial Affairs only requires a disclosure within the two years. Not everyone qualifies" for a Chapter 13. Individuals who cannot produce a budget that shows they can afford the Plan payments typically do not qualify. Individuals who owe more than a certain dollar amount do not qualify. Des.