Do we want the trustee to sell our house?

[haggerty]

Background: My husband has a serious long-term illness (dementia). We have about $150K of equity in our home, only one mortgage.

Our realtor has had our house on the market for nearly seven months -- not a single offer, despite slashing the price drastically several times as I wanted a quick sale.

But we're at the bottom figure of what we can sell for -- I need enough to cover the selling costs, the mortgage, a judgment lien, and some money to move and pay for my husband's medical care (gulp).

I've spoken to two BK attorneys so far and they indicated that if we file Ch. 7, it will be an asset case and the trustee will look to liquidate our home. Hallelujah -- hope he can find a buyer!

However, in order for the trustee to sell it, he'd have to feel confident that he could get the total of the mortgage, our homestead exemption (CA), the judgment lien, and at least $10K to cover his own trustee fee.

That's a lot more than we are asking for the house right now, and no one is biting. So it appears the fair market value (or even quick sale value) is below the magic number the trustee would need in order to elect to sell it.

Because the mortgage and homestead exemption amounts together total a little bit more than what the house could sell for, the judgment lien would be impairing our homestead.

On that basis, we could avoid the lien, and our homestead exemption would move into second place.

My question is, how likely is it that the trustee will take on the task of selling the property? Is the trustee more likely to "abandon" the property to us?

If the trustee abandons, does that happen before or after discharge? And am I right in assuming that if it's abandoned to us, I can sell the house for whatever I can get, pay off the mortgage balance and keep the rest as my homestead exemption?

In essence, by filing Ch. 7, it seems we will walk away with more money due to our homestead exemption than if were to sell the house now with the proceeds going to the mortgage lender and the judgment lien holder.

Am I missing something, or is there some booby trap here that I'm not seeing and the attorneys aren't telling me about?

Has anyone else here had the BK trustee sell your house and give you back some proceeds?

Thanks for all your wisdom and support -- this forum is a godsend!

[haggerty]

Filing jointly when wife has POA for husband

I'm sure we're not the only ones in this situation, but I haven't found it addressed anywhere. The lawyers I've spoken with all said it would be a problem, but they would have to do extensive (and costly) research to give me an answer.

My husband has fairly advanced dementia. I've been acting as his POA for all legal and financial matters for more than two years.

I want to jointly file Ch. 7. But as my husband is not competent to participate in a pre-filing class or in a 341 hearing, the attorneys are telling me I cannot file jointly. They are suggesting that I cannot act as his POA in a joint filing because, as a party to the filing myself, I could have a conflict of interest.

I've got to believe there are lots of older couples who have filed BK jointly when one had POA for the other. My husband does not have, or need, a guardian as he already has me as his POA.

One attorney suggested filing by myself -- as all debts and assets are joint, discharging mine effectively discharges both of ours. Is that accurate, or could creditors then come after my husband for the discharged debts?

Also, whose homestead exemption would be considered? Mine alone, in CA, would be only $50K. Because of my husband's age and disability, if filing jointly, our homestead exemption would be $150K.

Can anyone point me to any cases, lawbooks, BK manuals or other resources that address this spousal POA issue? Is there someone at the BK court or the US Trustee's office who could give me the answer to this question that even the attorneys are perplexed about?

Thanks!

[TEW]

looks like it could work out that way