despritfreya

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Everything posted by despritfreya

  1. Don't think it can be removed. The fact is you did file and the case was dismissed. Your future plans (not to file again) are not relevant. Sounds like it is being reported correctly and you are stuck but I am sure others will chime in and indicate if there is something you can do. Des.
  2. While this is not an issue for OP, the above is not totally correct as it relates to a Chapter 13. There is a split in authority as to whether the rights to an inheritance that arises more than 180 days after the Petition date is property of the Chapter 13 Estate and the answer to that question may turn on the timing of the confirmation of the Plan. Section 1306 includes, as property of the estate, all property listed under section 541 AND all after-acquired property. So, if OP's wife were a debtor in the Chapter 13, the inheritance may or may not belong to the creditors, depending upon how his jurisdiction interprets 1306 as it relates to the timing of the right to the inheritance and vesting of property upon Plan confirmation. Again, this is not an issue for OP since wife is not part of the 13. As to OP’s question, I see nothing stopping his wife from purchasing a vehicle with her inheritance money. Of course, OP should consult with his attny before doing anything. Des.
  3. Paradise, With the asset properly listed and the closing of the case the asset was abandoned and all rights in the same were vested to you, possibly subject to non-bk landlord/tenant law. Since possession of the $$ is in the hands of the landlord he/she/it may still have setoff rights. Again, let the attny figure this one out. Remember, however, if there is a question of law as to who gets what, when, where and why, the cost of litigating the issue may far exceed the dollars involved so, just keep everything in perspective. Des.
  4. Paradise, The 524 discharge injunction protects your person from collection. It may not stop a creditor from acting against property of the estate to the extent allowed under 553. The security deposit is property of the bk estate. It should have been listed on Schedule B under item 3. The security deposit does not belong to you as it belongs to your Trustee but is subject to any allowed exemption that may apply. The security deposit may also be subject to the landlord’s competing claim under the setoff provision of 11 USC 553. While the below link takes you to an article dealing with non-residential real property, its premise may still apply. . . http://www.haynesboone.com/tenant_bankruptcy-landlord_security/ See also the below link which is a decision from one bk judge - (although not relevant for the decision, setoff rights may apply) http://www.innb.uscourts.gov/opinions/pdfs/1321.pdf I tried to find links that can shed light on this subject but they are few and far between. All I am saying is that the issue is not so simple. In the end the dollars involved may not justify a landlord (or the trustee) fighting over it so you will probably get the $$ back (assuming you listed the asset, claimed the proper exemption and/or the asset, if not exempt, ends up being abandoned with the close of the case - abandonment can only happen if you listed the asset - I sure hope you listed the asset - I hope you get what I am stressing here - listing the asset). Let your bk attny handle this as he/she is best suited to interpret the interplay between sections 362, 524 and 553 as well as your State’s exemptions, the Trustee’s interest in the asset and landlord/tenant law. Des.
  5. Your comment is not correct as it appears it was in response to the below quote which leads one to believe that the “assessment” prong of the test is 3 years. The assessment prong of the test is 240 days. As it relates to non-trust type taxes the test is: 1. Tax year at least 3 years old as of the petition date; 2. Tax returns filed by the taxpayer on time or at least 2 prior to the petition date. The filing by the taxing agency of a substitute for return will drastically and negatively impact this prong; 3. Any assessments had to be final at least 240 days prior to the petition date. The filing of an Offer In Compromise may negatively impact this prong; 4. No fraud or willful attempt to evade payment of tax; There are other issues that impact discharging taxes such as the filing of a tax lien. Des.
  6. Just some clarifications. . . Not exactly. The poster is alluding to a "fraudulent conveyance" issue. However, since OP would be getting "an equal exchange for value" (the money for the lien placed on the vehicle) the transaction is not subject to the Trustee’s strong arm powers (assuming the lender properly perfects the lien on the vehicle under state law). Reducing the non-exempt value to the bk estate by placing that legitimate lien on the vehicle prior to filing does not change this. What could be an issue, as was mentioned, is having that cash from the loan lying around when the bk is filed. OP will be questioned on how the funds were used and OP needs to keep detailed records. And. . . paying the attny for the bk with those funds is not a problem. The bold above is not correct. What is "property of the estate" is based upon 11 USC 541. Under other provisions of the Code a Trustee can: 1. Set aside preferential payments to non insiders within 90 days prior to filing. 2. Set aside preferential payments to insiders within 1 year prior to filing. 3. Recover a fraudulent conveyance within 2 years of filing, or, if outside of 2 years, based upon the State’s fraudulent conveyance statute (usually 4 years). 4. Liquidate property for the benefit of creditors (subject to allowed exemptions). In addition, if a debtor cannot explain the pre (or post) petition loss of non exempt assets a Trustee can seek to have a discharged denied under 11 USC 727 and/or have those funds turned over. This is the reason it is so important to keep detailed records of any "large" sums of money that are spent shortly before filing. If you can't prove what happened to the money, the Trustee will assume it is in your mattress. Absolutely! Des.  
  7. Tsandy7, There are a few things you need to recognize. . . 1. There is no law that requires a creditor to report anything to the CRA. The law only requires that if a creditor reports, it reports accurate information. 2. You are correct that you would not reaffirm in the context of a Chapter 13. However, your lender and/or its assignee was involved in that case and it is perfectly legal for any creditor to transfer either the entire loan or its servicing to some other entity - in your case, Ocwen. 3. If your Chapter 13 Plan and the Order approving the Plan specifically stated that you would continue to make payments on the loan, the loan was most likely not "discharged". See 11 USC 1328(a)(1) which refers you back to 1322((5) which in turn, discusses long term debt provided for under the Plan - although the language of 1322((5) could possibly be interpreted as only applying to loans where there was a pre petition default. 4. Despite the language of 1328, I have yet to find a mortgage lender who understands that the obligation most likely is not discharged if a debtor is going to maintain payments. Further, some lenders do not understand that, even if the debt was discharged, it is not a violation of the discharge injunction to send monthly billing statements. The ones that do understand this send the statements and include a boiler plate provision that they are not attempting to collect but are sending the statement for informational purposes. If you want billing statements my recommendation is to send a letter, via Certified Mail, Return Receipt Requested, asking that the statements be sent and that you will not consider such action as a violation of your bk rights. I do not believe there is anything you can do if Ocwen declines the request. I do assume, however, that the lender has been sending you the proper tax form for the interest paid on the loan so that you can take the mortgage interest deduction. If not, then I would agree there is a problem. Best of luck in dealing with this issue. Des.
  8. The problem is that if the debt was run up during the marriage, unless it was in the nature of a personal guarantee for a corporate or LLC debt, it is your debt even if you did not sign on the dotted line. You live in a community property state. With few exceptions, you debt is your spouse's debt and his debt is your debt. As to the taxes, don't rely on the CPA. Discuss this with a bk attny and make sure the taxes meet ALL of the prongs for discharging taxes. Des.
  9. Although I disfavor this, there are many reasons why a spouse may decide not to file. OP is in a community property state. The community discharge protects OP so long as OP has no sole and separate property. Even a judgment obtained against her at this time is worthless if there is no sole and separate property. However, if the community is severed or she comes into sole and separate property during the marriage, such as an inheritance, she will be exposed to collection efforts. Des.
  10. While the community is no longer liable, OP's sole & separate liability is still intact. A creditor can sue her but simply cannot collect from community assets. Des.
  11. 1. You file bk EITHER in the state you have resided in for at least the past 91 days OR the state where your principal asset has been located for at least the past 91 days. If your principal asset is the property in Texas AND you have resided in Georgia for the past 91 days, the choice is yours. 2. If you have physically been out of TX for more than 2 years you will use the exemptions allowed in GA. I cannot tell you if the GA exemption will in any way protect the real property in TX or the timeshares. Nor can I tell you if you can elect Federal exemptions. Both the GA and Fed. exemptions have a wildcard that can be used to protect property up to a certain value. You need to consult with a bk attny. 3. If you have not been out of TX for more than 2 years you will use either TX or, maybe Federal exemptions. Again, you need to consult with an attny. 4. The real property in TX as well as the Timeshare may or may not be fully or partially exempt. All depends upon what exemptions you use and what they allow. 5. If you cannot protect the TX property and/or the Timeshare and you do not want to lose them to a Chapter 7 Trustee, you will most likely be filing a Chapter 13. A Chapter 13 allows you to keep non-exempt property so long as you pay the value of the non exempt asset to your unsecured creditors over the life of your Plan. Please note, however, if you owe $$ on the Timeshare it is unlikely the Court will allow you to keep the "toy" in the Chapter 13 as you would be diverting $$ from your creditors to do so. You need to consult with one or more attnys to determine what is best for you. Des.  
  12. I do not consider the Trustees as "corrupt". Being corrupt implies an illegal activity. That is not what happens. Trustees make money by finding assets to liquidate and. . . yes. . . that means they are lining their own pockets and the pockets of any attny or realtor they hire. It does not mean the action is illegal. The problem I have is that they find "creative" ways to accomplish this and those ways are detrimental to the debtor. Creating value where there is none (which is what happens when a Trustee tries to short sell property) delays the closing of the case and causes great angst for a debtor. Unfortunately, the Trustee has no duty to the debtor so it is very hard to stop him. As to the value of the property. . . an appraisal is only what one person thinks it is worth. The property is worth what a willing buyer will pay for it and what a willing seller will agree to sell it for. Just because an appraisal says the asset is worth $x, if a Trustee thinks he can get $y for it he will try to sell it for $y. Eventually, if it cannot be sold for an amount that will bring funds into the estate, the Trustee will abandon the asset. The problem is that there is no time limit for the Trustee to try to administer the asset. My guess (which could be totally wrong) is that you (or someone you know) are in a bk and cannot get the Trustee to walk away from some asset you believe has no value to the estate. This is a problem and, without knowing the details, I cannot venture a guess as to how the problem can be resolved. Des.
  13. While you can proceed pro se (w/out an attny), unless you know how to do a 523(a)(15) or (a)(5) complaint, you would be better served hiring an attny. Remember, you first have to get the Court to reopen the case, if it is closed, before you can file the Adversary Proceeding. You have to weigh the cost of hiring the attny with the amount owed to you because it is highly unlikely that a bk court will award you attny fees for filing such a complaint. Consultations are usually free. Go see a lawyer. Des.
  14. 1. You gave the Trustee info. He did not think it worthy of further investigation so he pushed you off by claiming the estate had no money to go after her for the alleged fraud. The truth is, however, that had he thought your claim worthy he would have turned it over to his boss, the US Trustee. If the fraud was bad enough the US Trustee would have sought to deny/revoke the discharge and may have sent a criminal referral to the Department of Justice. 2. She was required to list ALL creditors and that would include you if you were owed money. Whether or not the obligation owed to you was discharged depends upon whether or not it arose out of a divorce decree. Under 11 USC 523(a)(15) claims arising out of a divorce decree are not dischargeable. If the claim happens to be in the nature of support the add 523(a)(5) to the list as well. 3. How do you know that her husband’s income was understated? Means test only covers the 6 month window prior to filing so, if you do not have a copy of each and every paycheck stub during that time you cannot possibly know what his income actually was. Further, the Debtor can take a “marital deduction” thus reducing what the non-filing spouse’s contribution was. Unless you know each and every detail that went into formulating the means test you are simply guessing. Again, you brought this to the Trustee’s attention and he did not think it worthy of further investigation. 4. You certainly can try to reopen her case and seek the revocation of the discharge under 11 USC 727(e) (despite the fact that you were properly notified of the bk and missed the 727 deadline and, are therefore barred from such attempts). But, if you do, you better be prepared to pay all of her legal fees in defending the untimley attempt to "deny" the discharge. IMO, your better course of action is to discuss with an attorney whether or not the money owed to you is/was actually subject to her discharge. Complaints under 523(a)(15) and/or (a)(5) ARE NOT time barred and there should not be a Court fee to reopen a case for the purpose of filing such a Complaint. Des.
  15. A recorded judgment (typically recorded at the county recorder’s office or as otherwise provided for under State law) creates a judgment lien against real property. To the extent that such a lien actually impairs an allowed homestead (or other exempt personal property for that matter - if such is even possible in your state) it can be avoided pursuant to 11 USC 522(f). A creditor holding a judgment (but not a judgment lien) is nothing more than a general unsecured creditor - no different from a credit card. Such a creditor is not granted "priority" status. If the judgment creditor happens to have a valid judgment lien against property to which you cannot avoid the lien, then the judgment creditor is a secured creditor - secured up to the value of the "collateral". If the collateral is worth less than the amount of the judgment, then the creditor holds an unsecured claim for the difference. You really need to be discussing this matter with an attorney to make sure you are getting correct information based upon your situation. Des.
  16. There appears to be a huge misconception here. . . In the context of a Chapter 7, secured creditors do not get "proceeds from the sale of their collateral and any balance becomes unsecured". If there is equity over the amount owed to the secured creditor that is not subject to an exemption then, and only then, will a Chapter 7 Trustee sell the collateral. From the sale proceeds, the secured creditor will be paid in full. The excess (non-exempt) proceeds will be used to pay unsecured creditors and the Trustee. The only exception I have come across to this is the crap some Trustees are dishing out in trying to line their pockets from short sales of real property - but if the lien holder does not agree then the Trustee is SOL. In the context of a Chapter 13, the secured creditor (secured by personal, not real, property), unless secured by a vehicle that was purchased within 910 days prior to filing or, if smaller personal items, purchased within 1 year prior to filing, will have a bifurcated claim. It will be paid the value of its collateral over the life of the Plan (with interest) and the balance of its claim will be treated as unsecured. If the purchase was within 910 days for vehicles or 1 year for other small consumer goods, then the secured creditor is paid in full as a secured claim. There are some exceptions to this, but not many. Alternatively, the debtor can surrender the collateral to the creditor and the creditor would get an unsecured claim for its deficiency. Judgment creditors do not have any priority over any other unsecured creditor. If there happens to be a properly recorded lien that cannot be avoided either under 11 USC 522(f) or, as a preference, under 11 USC 547, then the creditor is secured up to the value of the non-exempt collateral, or the amount owed on its claim, whichever is less, and treated accordingly. All you have to remember is that if there is nothing in it for the general unsecured creditors the Chapter 7 Trustee is not going to do anything as it relates to any secured creditor. In a Chapter 13 secured claims may be provided for as required or allowed under the Code through the Chapter 13 Plan. As it relates to who gets paid what in a Chapter 7, please see 11 USC 726. As it relates to what is or is not a "priority" please see 11 USC 507. As it relates to what a Chapter 13 Plan may or shall pay, please see 11 USC 1322 and 1325. Edt: Just wanted to add that this post does not address the ramificaions of reaffirming, retaining, redeeming or surrendering as stated in a Debtor's Statement of Intentions in the context of a Chapter 7 - that is for another day. Des.
  17. See the below links for the various Florida Bankruptcy Courts: Middle District: http://www.flmb.uscourts.gov/jennemann/documents/mortgagemodificationmediation.pdf Southern District (look for "Loss Mitigation Mediation Program"): http://www.flsb.uscourts.gov Northern District ( "Mortgage Modification Mediation"): http://www.flnb.uscourts.gov/filing-requirements/chapter-13-individual-debt-adjustment#MortgageMod Hopefully they will all work. Des.
  18. If the FLP was set up in an effort to slowly transfer properly from one family member to another outside of probate and in the here-and-now, it probably has provisions that protect the distribution of income and the annual transfer of the membership percentage. It might state that the limited partner (that’s you) has absolutely no control over the distributions and that such control solely lies in the hands of, say, mom and dad (the general or managing partners). It also may state that the managing partners cannot be forced to distribute funds or transfer the annual percentage in "ownership". Lastly it may have a provision that allows the managing partner to shift all of the tax burden to the limited partner. This tax burden shifting provision creates a huge disincentive for a stranger to step into your shoes and makes it difficult for the Trustee to sell the membership interest. The new member could get no $$ but all of the tax burdens. Get a copy of the partnership and meet with several well qualified attnys. You may even want the bk attny to talk to the attny who formulated the partnership. As to filing a 7, of course, the safest approach is to stay away from the 7 by doing a 13, however, I have had this exact issue come up (under Arizona law) and after getting the Trustee and his attny to see the err of their ways they abandoned the asset. Now, this was quite a few years ago and I do not know if there has been any litigation on this topic that would make the outcome different today. Des.
  19. Simple. The problem is not the credit report. It is the recording of the judgment at the county recorder's office. It is the recording that came up when the title company did its "bring down" report. The recorded judgment is a lien against the property. HUD is worried that if it loans the $$ it will sit behind the judgment lien. I assume this is your homestead residence. File a Motion to avoid the judgment lien under 11 USC 522(f) since it impairs the homestead exemption. Once the Motion is granted get a Certified Copy of the Order and take it to the title company. Problem solved. If you do not have an attny, find one, as doing this Motion by yourself is just asking to screw it up. Des.
  20. FDCPA does not apply to the actual creditor. OP states that AmEx is suing. If this is not OP's debt the suit would be subject to a MTD under 12( as the creditor has failed to state a claim upon which relief can be granted. Des.
  21. If this truly is ID theft you should not be responsible. I was a victim back in 1999. . . a fraud ring out of Nigeria got a hold of my SS # and accumulated just under $50,000.00 in charges. I was contacted by a fraud investigator from Spiegel credit card and one from American Express who warned me of the problem. I then proceeded to work with each to help track the fraud ring (the ring took out a phone account through Pac Bell in my name so once I got the phone records the rest was easy - getting the phone records was fun). The point I am making is that I was never "on the hook" for any of the charges. For the other 3 credit cards that were fraudulently opened in my name, each attempted to collect but once I told the collector what happened I was transferred to the fraud department, sent some paperwork, filled it out, sent it back in and never heard from them again. Something else is going on in your case. Maybe you can explain what happened in more detail???? Des.
  22. To discharge taxes in bk all of the following must be met: 1. Type of tax is not a "trust fund" tax. This typically means the tax is income tax but there are other types that are not "trust fund". 2. The tax must have fallen due at least 3 years prior to filing. 3. The tax return had to be filed BY THE TAXPAYER either on time or not less than 2 years prior to filing. If the IRS did a substitute for return you are in trouble. 4. Any audits/assessments had to be completed at least 240 days prior to filing. If, during that 240 day period, you sought an OIC other rules apply. 5. You cannot be found to have filed a fraudulent return or wilfully attempted to evade collections. If a lien (NOT A LEVY) has been filed the taxing agency is "secured" up to the value of your unencumbered assets as of the date you file bk. To the extent you have such assets, even if you meet ALL of the listed prongs above, the tax will not be discharged - because the lien passes through the bk, unaffected up to the value of the secured claim. See 11 USC 507(a)(8) and 523(a)(1) See also 11 USC 506 as it relates to the "secured" claim if a lien was filed. Des.
  23. Yup. We've gone round and round on this issue - not sure if it was this forum or some other. Lottery winnings (unless the ticket was purchased before the case was filed) are not property of the estate. Period. Bingo is right on this point. Des.
  24. Bingo's posts are right on. Was just perusing Dionne Warwick's most recent filing (she has 2) a couple of weeks ago on PACER. So. . . nope, not under seal. However, settlement agreements or documents containing proprietary information or matters of a sensitive nature can be placed under seal upon Court Order. . . but not the entire case - at least I have never seen such happen. Publication in a newspaper of general circulation is usually limited to Chapter 11 cases due to cost of publishing and/or the sheer volume of filings. Recording of bk info at a County Recorder typically only happens when real property is involved as an asset of the estate and the Trustee wants to make sure the "world" knows about it. Des.
  25. I need to correct the misconception that many folks have regarding perfecting of a lien. Perfection has nothing to do with the rights between the lender and the original borrower. If the borrower signed a security agreement then the transaction is secured and there is no need to "perfect" the lien by recording a UCC1. The recording of a lien perfects the lien as to a third party - putting a subsequent purchaser or lien holder on notice that a prior interest in the property exists. If the lien is not perfected then a third party becomes a holder in due course and is not subject to the senior interest a prior lender may have. Perfecting, or lack of such, has no impact between the original lender and original borrower. To illustrate this, I refer you to:   Bank IV Topeka, N.A. v. Topeka Bank & Trust Co., 807 P.2d 686, 15 Kan.App.2d 341 (Kan. App., 1991)   So, to OP, and, once again, B&A has the right to seek recovery of its client’s property. Your mom can simply ignore such action until a sheriff comes knocking with a writ of replevin (which is highly unlikely to happen). And, by the way, I wanted to previously mention this but kept forgetting. . . the blame for this misunderstanding and confusion lies with your mom’s attny. He/she should have picked up on this issue before the bk was filed and should have fully explained what may happen. Even if not discussed prior to filing, I have no doubt B&A sent letters to the attny prior to the entry of the discharge asking what the client's intentions were. The attny, at that point, should have discussed these issues with your mom. Des.