despritfreya

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Everything posted by despritfreya

  1. I am sure your attny did not tell you this. While this is what you might have heard in your own mind, what he probably (should have) said was that you can offer $1000 to buy back the non-exempt equity but it will be up to the trustee to decide if that amount is sufficient. The trustee has the absolute right to send out an appraiser. A trustee must determine what is in the best interest of the creditors - not you . If the appraiser thinks he can get more than what you offered, your offer will be rejected and a counter made. If Carl went to view the ATV and vehicle, he told your trustee that he thought he could get net-net around $3,500. If no one went out, the trustee did an on-line check on the items and came up with a higher number. In the alternative, the trustee just came up with a number and proposed it to you. This is called a counter-offer. Standard negotiating stuff. The answer is “no”. A 9019 Compromise Settlement is used to settle a real controversy, not the value of an asset that a trustee can liquidate. Valuation, in the context of the trustee selling it, is settled by the auction process. The highest and best offer is the winner. There is no controversy in your case such as who owns the asset. This was the correct outcome. You were trying to buy something for nothing at $1,000.00. You did not get away with it. Based upon hindsight you should have agreed to the counter-offer. You did not and were forced to pay what the market would bring. Sure you can but you won’t “win” as I doubt he did anything "wrong" or in violation of the ethical rules. Your trustee will (or already has) issued a claims bar date. The funds will be distributed to any creditor that files a proper claims. If the bank, midland or any other unsecured creditor files a claim the funds will be distributed accordingly. This is not of your concern since you will not be getting any of the money back (unless maybe if no claims are filed) so you should not care where it is distributed. However, if you owe any pre bankruptcy income taxes, you will want to make sure the taxing agency timely files a claim as the funds go first to the trustee and his attny (if he had one) and then to priority taxes before it trickles down to general unsecured creditors. First, it is not your money. The money belongs to the bankruptcy estate. Second, while you can spend energy complaining about Midland’s actions, it might be better for you to let it go and move on with your life - the choice is yours. Des.
  2. Nor was there any when I brought the issue to the attention of my colleague from Tucson. He very professionally took the bull by the horns and made the change. There is nothing wrong with politely and professionally pointing out mistakes. Lord knows, I have made some in various posts. When wrong, I readily admit it and correct the errors. Mistakes happen. That's life. Des.
  3. Should not be a problem as they are two different divisions of Chase. However, as a general rule, one should not bank where one owes money. If you bank at Chase I would suggest going to another bank (one you do not owe anything to). Reason. . . if you default under a loan with the bank, the bank can reach into your bank account and setoff what you owe in full or in part. Des. PS: The Tucson attny has taken down that page you viewed. Kudos to him as such was the correct and honorable thing to do.
  4. Under Arizona law, unless the judgment is related to child/spousal support, judgment liens do not attach to homestead property if the equity, after consideration of any consensual liens, is $150,000 or less. Assuming the property is your homestead residence and you are not dealing with either a support lien or a consensual lien, you should be fine. Please note that forced sales can and will be done when dealing with mortgage, HOA, property tax, IRS and/or state tax liens as all such liens are deemed "consensual". Des.
  5. Tony, Don't know who you have been talking to or what you have been reading. Arizona exemptions apply to residents of Arizona regardless of filing bankruptcy. It is a STATE LAW, inside or outside of bankruptcy. For bankruptcy purposes Arizona is an "opt out" state. This means that someone who has resided in Arizona for at least two years and elects to bankruptcy MUST use ARIZONA STATE exemptions to protect property in the context of that bankruptcy. Here is a link to the Arizona Revised Statute. Scroll down to Article 8 Chapters 1 and 2. There are additional insurance/annuity exemptions under State law but this will give you the info I think you are seeking in general. http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=33 Des.
  6. My “guidance” for what it is worth. . . 1. Read the 363 Motion to sell the property very carefully. Someplace in that Motion it should indicate the amount the Trustee thinks will be available to the creditors. It may be a “carve out” from the proceeds of the short-sale - something either the lender is willing to give up or something extra the buyer is willing to pay. 2. Once you have an idea of what goes to the creditors, ask yourself. . . “is there any way I can come up with slightly more?” Can you borrow from a friend or family member - what about the co-owner? 3. If you can come up with something more than what is being offered by the sale application you could approach the Trustee’s attorney and propose a settlement so that the sale motion is withdrawn. You want to create a “controversy” so that the Trustee does not need to seek “higher and better offers” as is required in a sale setting. You want to set this up as what is called "a 9019 compromise settlement". Use that phraseology as it is something the Trustee and her attny will understand. The way you “create a controversy” is to make a stink about trampling the rights of the co-owner (the co-owner may have to argue this). It is a bogus argument but it may be enough to give the Trustee the ability to pull the sale application and settle with you. Of course, if you cannot fund this “settlement” my suggestion has no merit. At the moment, this is all I have. If I think of something else I will post it. Please keep us posted. Des.
  7. Please be patient. This is long and a second post will follow. . . An attorney may have advised you not to make payments as you were just making it easier for the Trustee by reducing the debt on bankruptcy estate property. However, during that time, you were allowed to remain in possession and use bankruptcy estate property therefore, you were paying for the privilege - no different than paying rent. Your Trustee is not “lying” and you need to understand (some of which I stated in earlier posts): 1. You do not control the property. The Trustee does - subject, of course, to the rights of the lien holder; 2. The Trustee has the right to market and attempt to sell the property, even if it is a short sale; 3. Did you speak to the bank’s lawyer? Chances are the bank’s lawyer was not fully advised of any attempt to negotiate a short sale. Happens all the time. Right hand does not know what the left hand is doing; 4. You stated that the Trustee filed something with the court yesterday. What she filed was a “Motion/Application to Sell Property Free and Clear of Liens”. Read it. It should give you all of the details of the transaction including the amount that will be available to the unsecured creditors (including payment to the taxing agencies for the non-dischargeable priority taxes you owe.) Read my prior posts. Not sure why you think she has to partition the property. As I said, she can sell the interest of the bk estate and the interest of the co-owner. Further, as I said before, if this is a short-sale, the co-owner gets nothing since there was nothing to give. Since you gave up all rights to the property by filing a Chapter 7, you also gave up any interest in the appreciation in value. It sells for whatever the market will bring when it is sold. As I said before, the Trustee can attempt to sell it “short”. The lender still has to agree. A Hearing on the Application to Sell should be set by the Court. Creditors will be given a window of time in which to object to the sale. If the lender does not agree to the terms of the sale (not being paid all that is owed) then it will file an objection. My intent is not to beat you up. It is what it is. Because this response is so long, I am going to do a separate post pertaining to “my guidance”. I do have an idea but it may be too late. Des.
  8. Your 50% interest in the property will become an asset in the bk and must be disclosed on Schedule A. The corresponding debt associated with the property is disclosed on Schedule D. The co-owner(s), if they are also on the loan, are listed on Schedule H. If you file a Chapter 7 the trustee will determine if there is sufficient value in the property to justify selling it. If the property cannot be partitioned, he can sell the entire property but will most likely have to split the net proceeds with the co-owner. To avoid this he may simply offer to sell the bk estate's interest to the co-owners. No way to really predict the outcome. In addition, the bk estate may be entitled to 50% of the rents collected after the bk is filed, depending upon the situation. You NEED to discuss this with a local bk attny. Des.
  9. Since it appears you are not listening to what I wrote: please take what is said by Willing to heart. "Foreclosure defense" is a lot of crap and you (and your attny) run the risk of getting hit with sanctions. You are better served trying "cash for keys" which is the unofficial program Willing is writing about. As to the foreclosure defense crap I'll bet the Plaintiffs below and their attorney (especially the attny) are wishing they never went down that path. See: Hurtel v. MERS et al US District Court, Western District of Michigan, Case Number 1:12-CV-174. 1.Sanction Order entered 3/25/13; 2.Motion for Reconsideration denied 4/10/13; 3.Notice of Appeal filed 8/12/13 (for the sanction order and the order dismissing the underlying bogus foreclosure defense case); 4.Appeal dismissed 6/30/2014 due to failure to timely file the Notice of Appeal. Sure hope that attny had malpractice coverage. And while this sanction was directed against the attny, I have no doubt that other courts have levied such sanctions against the actual plaintiff. If you are interested in reading some of the opinions in Hurtel, respond and I will try to upload them. Not sure if such will work but I certainly can try. Des.
  10. You are not responsible for any $$$$ as you have a discharge. This sounds like a judicial foreclosure action so that the lien holder can get back its property - nothing more, nothing less. Unless you are going to fight the foreclosure (stupid unless you can prove you have made the payments) I doubt there is anything you need to do. As to that "foreclosure lawyer" you are "going to hire" save your money for moving expenses and please do not get sucked into that "foreclosure defense" - "show me the note" crap. Let the home go and move on with your life. Des.
  11. If the link works here is a list of many "approved" agencies who can issue the require pre filing and pre discharge certificates. . . http://www.justice.gov/ust/eo/bapcpa/ccde/CC_Files/CC_Approved_Agencies_HTML/cc_maryland/cc_maryland.htm You can inquire about price and/or any waiver of the fee that may be given. Des.
  12. Absolutely! Had a similar experience but with dealing with my elderly parents. Jeezzzzz! Des.
  13. Nice that WF has such a procedure in your district, but that IS NOT what it does in mine. Debtors, with or without representation, have to jump through hoops. Pathetic. I try to make sure my clients either close the account and go someplace else before filing or have next to nothing in the account on the filing date. Personally, I would never bank at WF - it thinks it is judge, jury and executioner. Des.
  14. While OP has not updated what happened, due to the recent comments I need to chime in. WF most likely did not freeze the account due to the garnishment - since, as OP points out, it froze the entire account but subsequently released only enough $ to cover the support payment. It froze the account because OP advised it that he had filed a Chapter 7. While I do not know what the 7th Circuit has said about WF’s routine “administrative freeze” on accounts held by depositors who file Chapter 7, I can tell you that at least one appellate level court has determined that such action is not a violation of anything. In re Mwangi, 764 F.3d 1168, 1170-1171 (9th Cir., 2014): So, before jumping on the "go get em'" bandwagon, let's get the whole story. If you live in a district that has either not ruled on this issue or has ruled in favor of WF, you will want to get your $ out of WF before you file that Chapter 7. Des.
  15. His sole and separate creditor (a debt incurred prior to marriage) has no claim against you. If the debt was incurred after marriage, yes, the creditor could seek to recover based upon your individual liability and, if it got a judgment, could execute against your sole and separate property. As a side note, unless there is a darn good reason for one spouse not to file (and a credit rating IS NOT a darn good reason), I always recommend that both spouses file. One bk =’s one attny fee and =’s killing two birds with one stone. What is a good reason? If one spouse has a sole and separate asset that needs protecting such as an inheritance. Another good reason. . . just married and non-filing spouse has absolutely no dischargeable debt (never happens). Let us know how it goes with the attny. Des.
  16. Cars ok. 401k is community for contributions made after marriage but not property of the bk estate and exempt therefore not a problem. Tell attny of their existence. Bank account IS community unless no deposits have been made since marriage. I assume paychecks are deposited therefore the funds sitting in the accounts are community. Bank accounts must be listed as assets. Tell attny. Des.
  17. No but your income will be included in formulating the Chapter 13 Plan. Yes and no. If your husband obtains a discharge, it will be a “community discharge” that will protect the marital community so long as there is one. However, if you did not file with your husband a creditor can sue you individually and collect based upon sole and separate property. Assuming you have no sole and separate property the judgment would be worthless. See 11 USC 524(a)(3). Wrong. Unless you have a pre-nuptial agreement or some other agreement that divests the community, EVERYTHING you and/or your husband acquired after the moment you married (except real estate) is community regardless of whose name it is in. Des.
  18. I need to chime in here. . . Real estate property taxes in the vast majority of states, “run with the land” and never become a personal obligation of the homeowner. You are in Illinois, check with an Illinois attny to see of there is personal exposure - but, I doubt it. The lender will advance the payment of taxes as a tax foreclosure in the vast majority of states will wipe out any other lien. The post petition advance made by a lender NEVER becomes the responsibility of the debtor since the underlying contract that allows the lender to “charge-back” such advances is subject to the bk discharge. As to the “show me the note” defense you better be careful. It is a bogus argument and, since it has been litigated to death, it appears that some courts are finally cracking down by dismissing these types of bogus suits and assessing sanctions against attorneys and “homeowners” for litigating matters that have no merit. If you hire that attny for such litigation you better get in writing that the attny will indemnify you for any court sanction against you, including an order to pay the other side’s legal fees. Just my opinion. Des.
  19. Your options: 1. Find a way to immediately pay the balance owed on the contract or 2. Return the vehicle to its proper owner - the lender. The lender has obtained an order lifting the protection of the automatic stay. If you try to hide the vehicle or try to hinder the lender's ability to recover ITS property you could be found in contempt of court and get your entire bk thrown out. Further, depending upon your state's laws, you could be committing a crime. Bad idea either way. Give the vehicle back to its proper owner. Des.
  20. Absolutely unless you can find an exemption to cover the value of the property. Bk trustees have no problem selling property located outside of the US and are well versed in accomplishing such a task. Something else to consider. . . if your sole source of income is SS and disability, with the exception of the foreign property, you may be judgment proof. SS cannot be garnished at the source (with the exception of the IRS if you owe back taxes) and cannot be seized after receipt so long as it is not commingled with other $$. Disability, if it is Social Security Disability, is likewise protected. If it is private disability you would need to review the state exemptions to see if the $$ is protected both at the source and after receipt if not commingled. As to the foreign property, one has to wonder if a creditor (as opposed to a bk trustee) would even attempt to go after it. Selling real property located in Costa Rica is probably not so simple. Unlike a bk trustee who sees such things all the time, a US creditor probably does not know the ins-and-outs of such transactions and, while the creditor can figure it out, the cost of doing so may not be something it is willing to cover. Des.
  21. Are you modifying the home under the federal program, "HAMP" OR are you refinancing the home under the federal program, "HARP". . . OR are you doing something else like an "in-house" modification? Do you even have the documents the lender wants "approved"? If you do have those documents, what do they say? . . . Read them carefully. You need to be discussing the ramifications of what you are doing with your attny and bring the documents with you so that he/she can read them. Since we do not have the documents any assistance offered to you is purely speculative. I suspect you are doing a modification (but I cannot tell if it is under HAMP or some other program) since you state that your bk judge is not interested in dealing with such issues. . . And he/she would be correct. There actually is some case law telling lenders not to waste the court's time and just do it. Edt to add. . It also sounds like you signed a reaffirmation agreement on the mortgage and your Judge is going to decide if it should be approved. I am going to post a link dealing with reaffirming mortgages. If the link works spend time reading through it. Remember, the thread starts with my belief that reaffirming a mortgage is never a good thing but there are many opinions on this topic so just read the thread to get a feel for the issues and then discuss them with your attorney - who is familiar with your case. http://www.bkforum.com/showthread.php?62833-Why-reaffirming-a-mortgage-is-a-very-very-bad-idea Des.
  22. I need to chime in here. 1. A loan modification IS NOT a reaffirmation agreement. If you are doing a HAMP mod you will even find boilerplate language alluding to this. If you are doing an in-house modification you need to make sure this is understood - get it in writing. 2. Lenders sometimes want a bk court to "approve" the loan modification but such is not really required. It is not a big deal to file a Motion to Approve if such is necessary and your attny can do this very easily. 3. In one of your comments you mention that the lender wants you to sign a "HUD promissory note for $20,000.00". If this is the case you NEED to discuss this with your bk attny. Modifying an ALREADY existing loan that is subject to a discharge in bk is one thing. Entering into a NEW promissory note after you filed the bk is quite another. Des.
  23. Assuming you had personal guaranties, this is a very interesting question. . . "Did the listing of the obligations that were beyond the SOL, coupled with the agreement by the entity to pay 10% of the scheduled amount cause a waiver of the SOL for the personal guarantor?" I do not know the answer and it may turn on state law. Did the entity list these obligations as "disputed" on Schedule F? If listed as disputed my gut tells me that the SOL defense was not waived. Did any of these creditors actually file a claim? If a claim was filed did the entity file an objection to the claim? Not sure if the answers really matters but, there is case law that holds a creditor liable for the filing of a fraudulent claim if the claim was beyond the SOL - very new case law that I came across about a month ago but I don't remember the details. Lastly, the personal guaranty is a separate contract and, as such, the argument could be that the SOL was not waived as to a contract between the guarantor and the creditor regardless of what the entity did or did not do. Very interesting and I eagerly await other responses. Des.
  24. The following case, while a bit convoluted, will explain to you that you will be required to turnover the refunds. It appears that the only thing you can protect is any portion of the refund that is attributable to an Earned Income Credit but you need to check with your attorney. In re Marvel, 372 B.R. 425 (Bankr.N.D.Ind., 2007) Assuming the link works, you can read the case at: https://www.courtlistener.com/innb/aqFm/in-re-marvel/ Des.