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Everything posted by despritfreya

  1. Please cite to such case law that stands for this proposition as I am not aware of any. Liens, such as the purchase money lien OP is discussing, pass through a Chapter 7 bk unaffected. Mom neither reaffirmed nor redeemed the collateral. In fact, from a prior post (different forum) mom listed the creditor as "unsecured". As previously mentioned to OP, if mom ignores B&A, it will most likely go away since the collateral's value does not justify the expense of repossessing it. But the finance company does have the right to gain possession of its collateral if it really wants to. Des.
  2. Try. . . HOWEVER this is not mandatory or binding. The simple truth is that the bk court DOES NOT have the authority to force a modification of a loan solely secured by the debtor's principal residence. Des.
  3. How? Did you advance pay the monthly payments? Do you think that the base was met because you turned over tax refunds? Your creditors are entitled to receive your net disposable income over the 60 months. The turnover of the tax refunds is in addition to that base as allowing you to keep them would mean that you have not turned over your disposable income. Therefore, your base is really your monthly payment x 60 PLUS tax refunds. You have not met your base (regardless of what the Case Status System Report states since it is not set up to account for the turnover of future refunds). So, if you allow your case to be dismissed (no discharge) each of those creditors will be free to collect the other 67% plus interest. Probably not what you want to happen. Not relevant. RB’s office is notoriously late and being late is not prejudicial to your case in any way therefore not a big deal.   What was your annual gross income including the freelance work? What was the "income" for the 6 months prior to filing? What was your family size? And, for the two years prior to filing, what were the amounts of your tax refunds both State and Federal? Sorry you are having issues with the Firm. That is not the way it is suppose to work.   Missing a payment in order to pay the retainer is routinely suggested and generally works fine. However, you should have been advised that you had to include that payment in your Plan to be paid back to the mortgage lender. Unfortunately, your attempt to catch up the payment post petition would not have worked since, by law, the lender would have applied funds received post petition to post petition payments. I am sure your attny listed the arrears in the Order Confirming the Plan based upon the Proof of Claim that was filed by the lender.   Before you make a mistake and allow your case to be dismissed you need to sit down with your attny and go over everything. The option of a Chapter 7 might be on the table or you may find that sticking out the 13 is better. I realize you do not have confidence in the firm you are using but a sit down may help. In addition, there would be nothing wrong with you meeting with a different law firm to discuss the status of your case. Any attny with access to ECF/PACER can review the status while you are in the office and consultations are usually free. I can tell you that from what you write your case sounds "standard" and while you do not like how you got from point A to point B, with another firm, point B might have been the same. Best regards. Des.
  4. Actually, some states, such as Florida, have an actual exemption for tax refunds. Others have exemptions covering EIC. Still others have that all important wildcard. In my state, you better receive, cash and spend the refund before fiing or it goes to the Trustee. Des.
  5. The Trustee might take your refund regardless, unless you have received, cashed and spent it prior to filing (keeping track on how it is spent). I say "might" as you do not give enough info here to be sure. For example, you might be able to take an exemption and protect the entire amount or a portion thereof. You need to ask this question of an attny in your area. Des.
  6. jq, I think you will be hard pressed to win your Motion. While the CU did violate the Discharge Injunction by attempting to collect $$ from your client, it did not, IMO violate anything by picking up the car. You may be able to hold it in contempt for the attempt to collect $$ but that probably won’t amount to much of a “sanction”. Your research (same as mine) is quite clear. Dragnet clauses are 99% of the time enforceable both under State and Federal law. The following case has a very good breakdown of the issues - In re Casenove, 306 B.R. 367 (Bankr.M.D.Fla., 2004). There are so many others, most of which date back quite a few years. The fear I have is that you have open yourself and your client up to an award of attny fees if you have no colorable argument. On the other hand, if you play your cards right and are a good negotiator, maybe you can settle the matter in a way that both sides come out fine. In my jurisdiction the Judges have gotten around the need to reaffirm pretty much anything. However, when it comes to CUs, if my client has any other "unsecured" loans with the CU, I may want my client to sign a reaff which specifically recognizes that all other unsecured obligations will have no impact on the release of the lien. If the CU is not willing to so provide and redemption is not in the cards, I recommend that my client walk away. Good luck with this and keep us posted. Des.
  7. Your attny is probably still working out the issues with the Trustee. Nothing to worry about. Des.
  8. I assume both husband and wife filed bk. . . What do you mean, omitted bonuses? If they were received within the 60 days prior to filing they would be reflected on the paycheck stubs filed with the Court. If they were received within the 60 days prior to filing and are not reflected, I would assume there is a paycheck stub that was not submitted to the Court. That would be wrong as an individual debtor is required to file all pay advices received within 60 days prior to filing. If they were received more than 60 days prior to filing they are irrelevant as it relates to the paycheck stubs filed with the Court. What do you mean, omitted stock options? If a debtor has a deduction for the purchase of stock options that would be reflected on the paycheck stub. If the debtor stopped the deduction there would not be a reference to such options, although it might be reflected in the year-to-date totals. The Trustee is not forwarding anything to a District Attorney. Assuming you are referring to a state prosecutor (not the US Attorney's office), state law enforcement has nothing to do with the bankruptcy process. If there is going to be a “criminal referral” for suspected bankruptcy fraud it would be sent to the US Department of Justice as the FBI investigates such claims. If that is what the Trustee said to you, she most likely said it to “get rid” of you and probably thinks you are just a vindictive ex-spouse. Now, maybe what she said was that she would take a look at the issues and, if she thought it to be appropriate, would discuss them with her boss, the US Trustee in deciding if she should seek some sort of denial of a discharge under 11 USC 727 - but, don’t hold your breath. You state you filed your 523 action. Prosecuting it to a final determination that what is owed to you falls under 523(a)(15) or (a)(5) should be the only thing you care about at this point. Des.
  9. This is not the disaster you think. 1. You can amend/modify your Plan to surrender the now worthless vehicle. The Plan funding (and presumably the monthly payment) would be reduced as you would no longer be paying the lien holder. 2. At the same time you can file a Motion to Incur Secured Debt asking permission to purchase another vehicle. This, of course, assumes you can find a dealership willing to help you secure financing. You will want to shop around. 3. Assuming you find a replacement vehicle you will have to produce a budget that shows you can afford the (reduced) plan payment and the new vehicle payment. These things are done all the time. If you have an attny discuss it with him/her. If not, then discuss it with your Trustee. Your Trustee cannot give you legal advice but he/she may be able to point you in the right direction. Des.
  10. For the record. . . Nothing that arises out of a divorce decree is dischargeable in a Chapter 7. Not support, not property settlement, not indemnification, nothing. See 11 USC 523(a)(15) for claims that are not in the nature of support and see 11 U.S.C. 523(a)(5) for anything that is in the nature of support. If you want a "comfort order" from the Judge as to which 523 section applies (either (a)(15) or (a)(5)), you can file a Complaint to Determine Dischargeability. However, while it might be best to do so, such is not necessary nor is there a time limit to file such a Complaint. You will want to discuss your situation with an attorney who understands 523(a)(15) and (a)(5). Bring your divorce decree to the meeting. Des.
  11. 1. The SSI will not be taken by the Trustee as it is exempt. However, if you had cash just sitting around on the day you filed (as apposed to traceable SSI benefits sitting in a segregated bank account) there may be an issue if the cash cannot be exempt. 2. I cannot tell you why the AT&T bill jumped to $1,000.00, however, I can tell you that the service provider does not have to continue providing services. Can it demand payment for a pre petition debt. . . No. But, can it demand payment of a "deposit" going forward in order to keep the service. . . Yes. You should contact AT&T for further information or look for another service provider. I have heard that "google voice" is a viable alterative to a traditional phone service but do not know anything about it - might be worth checking out. 3. As to your car. . . You do realize that a Chapter 7 is not going to help you keep it. Your creditor will be free to repo 45 days after your 341 meeting unless you take steps to reaffirm or the creditor gets stay relief sooner. I assume you cannot bring payments current and I further assume the lender is not going to work with you. If my assumptions are correct you have only delayed the loss of the vehicle - but maybe that is all you were looking for - a little extra time using it. Des.
  12. The correct term is “preferential payment” or “preference”. It is a payment that you make to a creditor within a window of time prior to filing bk, that can be recovered by a Trustee from the recipient and then used to pay all unsecured creditors based upon a pro rata basis. In general, if you pay any one particular unsecured creditor (who is not related to you) more than $600.00 in the 90 days prior to filing bk, the Trustee will contact the creditor and get the money paid over to the bk estate. If the preferential payment was made to an insider (such as a family member), the time period is expanded from 90 days to a full one year prior to filing. Preferences deal with payments to unsecured creditors, therefore a payment to a secured creditor (car loan, mortgage) will not be recovered by the Trustee. So, if you decide to settle with one creditor and pay it more than $600.00, but end up filing bk anyway, if you file within 90 days of the payment that creditor will have to pay the $$ back to the Trustee. If that creditor happens to be an insider, if you file within 1 year, the $$ will be recovered by the Trustee - so, you should not pay a family member back for any loans within 1 year prior to filing. See 11 USC 547 for actual language of the Statute. Des.
  13. First, there is never a reason to apologize if you (or anyone for that matter) see things differently than I. It is important for posters to see all the sides of the coin from all of us who deal in this area. Second, I too handle many “high rollers” and “business cases” and, in instances, if they are a "consumer case" and have sufficient secured debt can qualify them. If not, they typically have too much debt for a 13 and end up in an 11 which is run just like the pre BAPCPA 13s. A much better alternative to a 100% Chapter 13. Third, even the “high roller” scenario has issues. I just spent an hour trying to find the thread at bkforum . com that dealt with this - alas, to no avail. If I do find it I will update this post. Family in Michigan were forced out of a 7 (went to trial if I recall correctly) because they were living in a home where the mortgage payment was well in excess of 33% of their monthly income. It was determined to be an abuse under 707((3) even though they past the means test and I&J put them in the negative. So, jq, feel free to criticize, disagree and/or clarify any post I write. As an attny, if I feel I've been "wronged" you know I will respectfully disagree. Des
  14. That, good sir, is a most excellent attitude!!!! Des.
  15. Shoeguy, I am a bit confused. Are you a family of 1 or of 3? You mention 2 daughters but also mention that you pay support. If your daughters live with their mother and you have no other dependents then you are a family of 1. Median income for a family of 1 is $41,748.00 Median income for a family of 3 is $60,219.00 If you earn in excess of $100,000.00/year the spread between your earnings and median are most likely too great for you to qualify for a 7 under means testing. Based upon this, you would be looking at a Chapter 13. Even if a 13, you might not be a 100% repayment plan. This is where you really need to find the attny with the most experience. Proper utilization of Schedules I and J (income and expenses) should determine what gets paid to your creditors (at least it does in my jurisdiction). If you can deal with your creditors outside the context of a bk you are better off. However, unless you can deal with all of them, settling one or two or even three is not going to help you. It just takes one to break the camel's back. And, if you are forced into a bk later down the road you just wasted whatever $$ you paid to settle a debt. This is a tough call. You are proceeding down the correct path by investigating every option. Be cautions and make an informed, intelligent decision. Best of luck Des.
  16. In a Chapter 13 an unsecured creditor MUST file a TIMELY proof of claim. If the creditor fails to do so it DOES NOT have the right to participate in a distribution. Many creditors simply do not file timely claims. Unless your Plan, or the Order Confirming your Plan, states otherwise, property of the estate vests in you (the debtor) upon Confirmation of the Plan. While technically, vesting means you are free to do as you please with the property, it is not advisable to dispose of anything that was non-exempt until your case is closed. Let sleeping dogs lie as the saying goes. If you have an attny, before you sell anything, talk to him/her. Des.
  17. Because the law says that if you are an above median income filer (which I assume you are), your commitment period is 60 months. As a result your, Plan duration must remain at 60 months, especially if you had disposable income under means testing. However, the Plan probably also states that if all claims are paid in full in less than 60 months the Plan will terminate. Des.
  18. What do you mean by "claimed". Did all of the creditors you listed on Schedule F actually file timely Proof of Claims? The only way you get out early is if you pay 100% of all "allowed claims" before your Plan is set to end. If you were a 60 month Plan you are still a 60 month Plan - but if it only takes another 14 months to pay all allowed claims in full your Plan will end early. If not then the on line system is most likely giving wrong information. Des.
  19. The first part of this post I agree with. Mill operations are usually "quantity not quality" and it is quality you want. As to a firm that handles other consumer type issues, that will depend. Jack of all trades could mean master of none. Bk is not like any other legal practice. Other consumer arrears are state law based. Things that work outside of a bk (settlements that can be deemed preferential for example) may be a problem in the context of a bk. The best way to gage a potential attny is 1) referral from folks you know 2) checking with the state bar to make sure there are no disciplinary issues 3) most importantly, interviewing more than one, two or three. Go to as many as you can. You will eventually find one you are comfortable with. Des.
  20. Your credit report is not relevant. Did the Partnership RECORD a valid mortgage/Deed of Trust against the property in the proper location, usually the county recorder’s office in the county where the property is located? If the answer is “no” - big problem as any recording now would be preferential and set aside by a Trustee in a bk. Your right, it does not matter but not because the loan is from the partnership. It does not matter because the lender failed to properly record a valid mortgage (assuming that is what happened). Maybe a recording now will work IF you DO NOT file bk. Remember the homestead is limited and if there is no valid mortgage against the property a judgment creditor can force a sale. While I understand your frustration, this is the wrong “attitude” to have or take. There is always an answer to the problem. This is why you need to consult with a well qualified attny. Des.
  21. From your post these are the “facts” as I see them: 1. You owe approximately $45k in credit cards and medical bills. 2. Creditors are now filing suits against you. The rest is not clear. 1. Who is the titled owner of the home. . . you or the limited partnership? 2. Is there a recorded mortgage against the home and if so, is it in favor of the limited partnership or some lender such as Bank of America? 3. If the property is titled to the limited partnership what are your rights in the partnership? Do you simply have the right to live in the home or is the equity in the partnership being slowly transferred to you each year? Limited partnerships are vehicles to protect assets from the creditors of the final recipient (eventual heir) but only if the are set up correctly under State law. Can they be touched if you file bk? Maybe, maybe not. As one poster pointed out your issues are difficult ones and best suited for a discussion with a well qualified attny. The reality is. . . If the home is free and clear and titled to you the Ga homestead exemption is $21,500 so, inside or outside bk, if the home is worth more than the exemption, it is at risk. My guess is that if you elect to file a bk it won’t be a Chapter 7. For $45k, you may be better off settling one-on-one with each creditor. Des.
  22. From what I gather you and/or the lender failed to pay the property tax for the land. For some of the years the tax rolls were sold to investors. For other years they remained on the state and/or county books. Now, either the investors and/or the state and/or the county or a combination of the same is/are suing to foreclose on the tax certificates. If I am correct, why do you think there is a problem? Foreclosing on the certificates will get the property out of your name - something I think you want to happen. Is someone asking for you to personally pay $$. What is most likely happening is the filing of a judicial foreclosure based upon back taxes. In most (maybe all) jurisdictions, real estate taxes "run with the land" meaning the property owner has no monetary obligation and if the taxes are not paid by the property owner the land is foreclosed by whomever does pay the tax. If I am not correct please give much more detail as to what the suit is all about. Des.
  23. Wrong. . . the financing company has a security interest and the language granting it is contained within the purchase/financing contract. Recording of a security interest is not needed as between the lender and borrower for such things. . . A UCC-1 financing statement perfects a security interest in personal property. The lender lends money to the customer to buy a piece of personal property and, in exchange for the loan, the customer gives the lender an interest in the personal property while the customer repays the loan principal plus interest. If the customer defaults on the loan, the lender can repossess the personal property. Under the model UCC (adopted, I believe, by all States), in the case of a purchase money security interest in consumer goods, the security interest is automatically perfected and no UCC-1 financing statement has to be filed. There’s tons of bankruptcy case law on this subject going back to the early 1980s. If I recall correctly, even the issue of how payments are to be applied - applied to the oldest purchase first - stems from a bk case in which Sears was the defendant. As to OP's issue, ignore the creditor. It is highly unlikely it will exercise its rights to regain possession of its property. Des.
  24. I am not in GA but I can tell you that last summer, in the 9th Circuit, an appellate level decision slapping WF's hand came down. WF has ignored the slap and still continues to be judge, jury and executioner. For years I have told my clients to get there $$ out of WF before filing. If you are filing a Chapter 7 and WF freezes the account you will not get a dime until your attorney persuades the bank that it is violating your rights, or the Trustee authorizes the release, or you get a court order. Any one of those possibilities could take a few days to a few months. Des.