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Everything posted by despritfreya

  1. "Legally required" - not sure what that means. If you don't tell the truth are you committing a crime? That depends upon the circumstances. For example, it is a Federal crime to lie on a mortgage application. See 18 U.S.C. § 1014. If you lie, and such lie does not rise to the level of a crime, but the other party relied upon your failure to tell the truth (your misrepresentation) then maybe you committed a civil fraud against that individual and can be sued by that individual. Bottom line - always tell the truth. If the question asks "have you filed bankruptcy within the past 8 years" and the truth is yes, then answer "yes". If the truth is no then answer "no". If the question is open-ended (no time frame) such as "have you ever filed bankruptcy", and you did many decades ago, the truthful answer is "yes". Des.
  2. You have not mentioned how much money is "a little money set aside". Are we talking a few hundred or several thousand? Regardless, you really need to go back to your attny and ask him/her what it should be spent on. Just remember to keep receipts. Des.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. Pam, You are refinancing your current residence so, is it the title company or the lender that is giving you a hassle? Des.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. You did not reaffirm. You have no liability as it relates to paying the mortgage should you "walk away". If you have a HOA you must continue to pay the HOA until the property is foreclosed or otherwise out of your name. Lastly, depending upon state and local laws/ordinances, you may need to keep the property in "good repair" untill the property is foreclosed or otherwise out of your name. Des.
  19. 1. Not a California attny but. . . 2. My reading of 704 shows no wild card. The $100,000 homestead exemption falls under CCP 704.730 or 704.950. 3. My reading of 703 limits the wildcard to $1,350.00 plus the unused portion of the homestead. The homestead under 703 exemptions is limited to $25,575.00. CCP 703.140(b)(5). 4. OP states that equity is $115,000.00. Must assume OP was smart enough to use 704 thus protecting $100,000.00 not the smaller amount given under 703. 5. Property is property of the estate. OP's first reference is "I have about $115,000 in home equity. What are the chances of the Trustee selling my home in this situation." See 11 USC 541 for what constitutes property of the estate. OP. . . please keep us updated on what happens as we may be able to give you additional insight. Des.
  20. Not quite true. A realtor will be appointed. The realtor will list the home on the MLS just like any home for sale. The listing will indicate that the sale is subject to bk court approval (which may or may not chill the value of the offers - my experience, it doesn't really). Once a buyer is found and a contract is signed the Trustee will file a "363 sale motion". The sale will be subject to "higher and better offers", but the home will sell for market price or just slightly less - but not as a "forced sale" such as a foreclosure. This is done all the time. Just had one where a bidder showed up at the hearing (sale of a commercial not residential building) and the sale price did go up a bit. Not quite correct. There is no "recovering the property" since the property already belongs to the bk estate. There is no "preserving the property" unless, of course, the debtor vacates and it takes a long time to sell. As to the cost of sale, nothing different than a typical commission to a typical realtor. Typically, the only issue is whether or not the debtor continues to service the mortgage between filing bk and the time the property is sold. Again, if OP has filed a 7, and there is equity over the homestead OP needs to be prepared to lose the property in exchange for that $100,000.00. Des.
  21. From my reading of California homestead exemptions, if you used the 704 exemptions, having at least one minor child appears to allow for a $100,000.00 exemption. Someone from California please chime in on this. Assuming my reading is correct and further assuming your estimate of the total equity ($115,000) is also correct, it is absolutely in the best interest of the creditors for the Trustee to sell the home. He/she will sell it, pay off the existing liens, closing costs, sales commission and your homestead and then give the remaining funds to the creditors. I assume you understood this when you elected to file a Chapter 7 (instead of a Chapter 13) and are prepared to find other accommodations. Edt to add: I also assume you have already filed. If not, you need to seriously consider a Chapter 13 if you want to keep the home. Des.
  22. So, how much is the total debt, including all personal guarantees? Remember, each of you is 100% responsible for those obligations so tell us the entire amount not half of it. Sounds like it is time to walk away from the business. But. . . Sounds like trying to turn it around is the wrong choice. Many small business owners think there is a light at the end of the tunnel just to find that the tunnel never ends. Think about it. Yes. . . done all the time. If you are really worried about this, and depending upon how much you owe, including the guarantees, you would look at a Chapter 13. In a Chapter 13 the debtor keeps all of his/her property by agreeing to pay the non-exempt value to the creditors over the course of the Plan. In a Chapter 7, the Trustee will step into your shoes and become the owner of your stock. The Trustee is not going to run the business with your partner. That is not his/her job. Instead, after investigating the finances of the business, the Trustee may put your shares of stock up for sale. Before he does this, however, he may offer to sell the shares either to you or to your partner. You can elect not to play the Trustee’s game. If you are sure that no one (but the two of you) would buy your shares, calling the Trustee’s bluff might force his/her hand to abandon the "asset" (the worthless stock). Then meet with many others. I cannot tell you how many cases my Firm has filed where the debtor had a business. Happens too many times. An informed decision is made between the attny and the client as to which Chapter works best. Des.  
  23. Just to clarify, the Fair Credit Reporting Act states in part: Ergo. . . based upon the terms of the FCRA, any bankruptcy, regardless of Chapter and regardless of whether or not it ended in dismissal or discharge can be reported for up to 10 years from the moment the petition (case) is filed. Such does not preclude the reporting agency from reporting it for less than 10 years. The law only requires that it cannot be reported for more than 10 years. Des.
  24. Why a 13? Too much income for a 7? Some non-exempt asset to protect? Des.
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