Announcement

Collapse

Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

Welcome to the Bankruptcy Forum. Bankruptcy (BK) Forum is known as BKForum.com and will be referred to as BKF hereinafter. In order to ensure a long term success of our vibrant community, we have established certain rules and guidelines to which everyone must adhere to. Please take your time to carefully read our rules, before you start to participate in the community.

Things you agree to do:
BKFORUM.com (BKF) users agree to use the search function before starting a new thread. This prevents duplicate discussions and allows for better organized topics.

All BKF users agree to read the sticky posts which may be available at the top of a forum page. These Sticky posts often contain valuable information. They may also outline more rules and guidelines specific for that particular forum, stickies are put in place by that forums moderator(s) or admin(s).

Things you agree not to do:

All BKF users agree not to call people names or write a post simply to make a personal attack, or get a negative reaction; this behavior is not allowed on our forum. The use of derogatory language aimed at anyone will be severely dealt with. There is no need to agree with each other, or to even like each other. However, by signing onto BKForum.com you agree to treat each member and guest with the respect they deserve. No threats or personal attacks will be allowed.

All BKF users agree not to discuss, engage, or encourage any behavior or activity which violates the law. Discussion of drugs, violence, murder, theft, vandalism, fraud or any other issue which could be used to help individuals break the law is strictly forbidden.

All BKF users agree not to "bump" old threads, unless there is a specific benefit to the community by doing so. But in most cases, please don't post in very old threads, instead start new threads.

All BKF users agree not to attempt/use another members account. It is against BKF rules to use any account other than your own. Impersonating another member will result in an immediate ban. It is also against the rules to open more than one account in your own name without permission from a moderator or administrator. If you have been banned for any reason, it is against the rules to open another account. If you were banned temporarily and you are caught using another account you will be banned permanently. Choosing a moniker which is similar in either sound or spelling as a moderator or administrator is strictly forbidden.

All BKF users agree not to private message any moderator, admin, or other member with questions related to their personal circumstances (Questions about the forum or issues with the forum are ok). This forum only works when members share their experience and insights with everyone.

Things you agree not to post:
All BKF users agree not to post any derogatory/racist/or sexist remarks. This includes attachments, links and all information contained within posts, signatures, and avatars, failure to comply with this rule will result in a permanent ban.

All BKF users agree not to post any copyrighted or trademarked information without the express written permission of the owner(s) / proper citation of source.

All BKF users agree not to post any real names, addresses, telephone numbers, email addresses, social security numbers, or any other personal details (their own or other people's).

All BKF users agree not to post links, pictures, attachments, videos, or the like of pornographic content, objectionable material or extreme violence, whether cartoon or real.

All BKF users agree not to use BKF for advertising purposes without a written contract between yourself/company/agent and the administration of BKF. Blatant advertising will result in a ban.

All BKF users agree not to spam the forums. Spam includes but is not limited to posting erroneous, non-relevant-useless, off-topic, or meaningless posts. Spam may also include posts which contain no text, or large areas of blank space between lines. Simply posting emoticons without text is considered spam. BKF is the largest bankruptcy message board and all the content is intended to help other users. Please help us improve the quality of our forum by making sure that your posts are well-worded, spell checked, grammatically correct and syntaxed.

Regarding actions of moderators and administrators:

The forum is no place to air out your opinion or be judgmental of our staff and its capabilities.

All BKF users agree not to abuse or mistreat moderators or administrators. It is against BKF rules to post any information regarding bans or any other action taken by a member of the moderating or administrative team. If you wish to discuss bans or warnings please do so via PM. To place a complaint against a moderator, send a PM to a super moderator. All Moderators are equal, any decision made by a moderator must be adhered to. If a moderator tells you something you do not like, do not go to another moderator looking for a different answer. If you are caught doing this you will be banned. The moderators work as a team and respect the decisions made by their peers and will help enforce them unless an administrator tells them differently.
If you have an issue with how the forum is run, then notify one of our administrator and we will look into the situation. We have in the past and still do appreciate any input that you offer this forum. But critical input and/or judgmental postings towards the staff will result in you getting banned.


Should you find a thread offensive or out of line, then notify a Mod in a PM so they can evaluate the situation and do the action deemed necessary.

All moderators do have active "other" lives outside of the forum and help moderate this forum in their spare time throughout the days and weeks.

If you have a problem with a member or Mod follow the proper channels of reporting it.

BKF reserves the right to delete any posts which contain anti-BKF comments or discussion. Any bashing of moderators or administrators, or any of their discussion or actions will also be deleted, and the responsible posting party(s) will be banned. Any public anti-BKF advertising, communication, or posts on another forum will result in permanent bans as well.

All warnings and bans are decided by individual moderators and administrators. Warnings are preferable to bans however, for serious offenses and repeat abusers bans will go into effect. The length of the bans can vary from several hours to permanent.

All messages posted or sent including through PM are the property of BKforum.com.

All BKF users agree not to advertiser on the forum (Niether by posting, private messaging or using your signature). If you are a company/attorney/legal adviser wishing to advertise on the site or sell a product, you must contact the head administrator and inquire about our advertising packages.

All bankruptcy related opinions expressed on BKForum.com are those of their authors and not necessarily of BKF, its staff or representatives.

You agree not to copy any material/post/content from BKF without written permission from our head administrator .

By posting on this forum you agree to these terms and conditions, including any punishment deemed appropriate by moderators or administrators in the event of an offense.

Administrators/Moderators can change these rules at any time without prior notice.
See more
See less

Asset case - now what? (losing house)

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • Asset case - now what? (losing house)

    The trustee just changed my case from "No Asset" to an asset case, which was expected since there is equity in my house (see my other threads if curious for more background).

    I'm wondering what happens next. Assuming the only asset the Trustee is pursuing is my house (everything else I have should be exempt), what is the timeline and how does this sort of thing work? Anyone have a similar experience to tell us about?

    I am assuming that the Trustee will contract with some kind of real estate company and put my house on the market. I am still living in the house though. Will he kick me out then sell it? Or can I stay here until it sells? I tried to ask the lawyer's office but they basically said to just wait to hear from the Trustee, that they hadn't heard anything yet from him other than the change in the case.
    Well, when you're married, you'll understand the importance of fresh produce.

  • #2
    Originally posted by KevFinnerty View Post
    The trustee just changed my case from "No Asset" to an asset case, which was expected since there is equity in my house (see my other threads if curious for more background).

    I'm wondering what happens next. Assuming the only asset the Trustee is pursuing is my house (everything else I have should be exempt), what is the timeline and how does this sort of thing work? Anyone have a similar experience to tell us about?

    I am assuming that the Trustee will contract with some kind of real estate company and put my house on the market. I am still living in the house though. Will he kick me out then sell it? Or can I stay here until it sells? I tried to ask the lawyer's office but they basically said to just wait to hear from the Trustee, that they hadn't heard anything yet from him other than the change in the case.
    i think he will give u a chance to buyback the equity u have
    in other words u give him cash u keep the house
    Filed chapter 7 on 9/17 341 on 10/20
    Chapter 7 Trustee's Report of No Distribution on 10/21
    Discharged and Case Closed on 12/21/2010

    Comment


    • #3
      Originally posted by scorpion35 View Post
      i think he will give u a chance to buyback the equity u have in other words u give him cash u keep the house
      Thanks for replying. Guess I should give more background on my case in this thread.

      I am unemployed. I am basically broke with practically no $$ to even live on - am over 100k in debt - also owe 75k on the mortgage (the house is already in foreclosure) - that is why I had to declare bankruptcy. I cannot pay my creditors, or the bank/mortgage.

      I am asking if anyone has experience with how it works when a trustee takes a house (he is taking it to sell it, pay off the mortgage, then use the equity leftover to pay creditors). Wondering how the process works, when do I get kicked out, what can I expect to happen, etc.
      Well, when you're married, you'll understand the importance of fresh produce.

      Comment


      • #4
        Ugh, Kev - I am so sorry. Your situation plain sucks.

        I saw where you were filing using the Federal exemptions.

        If you used the Federal homestead exemptions won't you get to exempt $20,200 worth of equity and double that amount if you are married?

        If so, shouldn't you receive (after the Trustee sells your house and takes his cut or maybe even before IDHAFC) the amount of your exemption whether you are an asset case or not?

        Gah! I hate that the BK process can be a whiter shade of pale and not just 'black and white'. I will keep you in my thoughts, Kev. (I am the type of person that I keep worrying that after my 341 I will be the woman with the cardboard sign on the exit ramp of the freeway. LOL - but not really.)
        ~~ Filed Over Median Income Chapter 7: 12/17/2010 ~~ 341 Held: 1/12/2011 ~~ Discharged: 03/16/2011 ~~
        Not an attorney - just an opinionated woman.

        Comment


        • #5
          KF,

          If I recall correctly, the sale of the home is what you wanted so that you could get your allowed homestead. Sounds like things are now going in your direction.

          Your Trustee already has a realtor he normally works with. He will file a Motion to Employ the Realtor for the purpose of marketing and selling the property. The Realtor will list the home for sale. You will continue to reside there until just before close of escrow - assuming a buyer is found. Remember, the Trustee cannot sell the property if the sales price does not guarantee you the homestead amount. Once the Realtor has a contract the Trustee will file a Motion to Sell. A Hearing will be held and, once approved by the Court, the sale will close.

          None of the above happens over night.

          Des.

          Comment


          • #6
            The trustee will not want to take your house. You have will have the option to "buy Back" the equity in your house which exceeds the homestead exemption. Your attorney can arrange this. Example. Your house worth $100,00. You owe $50,000. You homestead exemption is $25,000 = you have $25,000. That $25,000 equity can purchased by you for sometimes 50%, or around $12,500 depending on how your market looks.
            Filed Aug 28 2009
            341 Oct 2 2009-Asset Case
            Discharged Dec 16 2009
            Waiting for tax return and asset buy back to close

            Comment


            • #7
              Originally posted by ValleYum View Post
              Ugh, Kev - I am so sorry. Your situation plain sucks.

              I saw where you were filing using the Federal exemptions.

              If you used the Federal homestead exemptions won't you get to exempt $20,200 worth of equity and double that amount if you are married?

              If so, shouldn't you receive (after the Trustee sells your house and takes his cut or maybe even before IDHAFC) the amount of your exemption whether you are an asset case or not?
              Yes (thanks), that is what I am hoping for, the best of the bad outcomes of my situation, I am losing the house no matter what but at least I may get something out of it.

              Although my lawyer has told me that it is possible that there will not be any $$ for my exemption left over after the mortgage is paid off, the trustee takes a cut, and some kind of administrative fees are paid, and of course the creditors need to get a chunk too.
              Well, when you're married, you'll understand the importance of fresh produce.

              Comment


              • #8
                Thanks Des. That is the FIRST time anyone has explained it to me in that depth. I wish you were my lawyer ;-)


                I want to ask more specifically about what you mentioned here.

                Originally posted by despritfreya View Post
                Remember, the Trustee cannot sell the property if the sales price does not guarantee you the homestead amount.
                My lawyer had gone out of his way (and this was also told to me by a different lawyer originally but that is another long story) that it was possible that there would NOT be anything leftover after trustee sale to give me the homestead exemption. That the trustee would "burn through the asset funds" with fees of some kind and there would be little (if anything) to give me as the exemption amount.

                Yet you're saying that the trustee CANNOT sell the house UNLESS he does so for an amount that GUARANTEES I get the full exemption amount?? Are you sure that is true???? That would be great but I was believing the possibility that if the trustee sold it I might get nothing out of it at all (but at least getting my debts cleared).

                Until your comment I was wondering in this process how it worked as far as what price the Trustee would settle for in the sale. Would he just take any amount at all provided it was at least OVER the amount owed on the mortgage (that should be a slam dunk btw)? Or would he not budge from say 20K over that? Or 50k? Or 80k, or what? How would the real estate negotiations even go? Would the buyers know (I guess they would) that it was a bk case and that they had extra leverage over a normal transaction for negotiations or is that not even an issue?

                I'm also wondering about the "lis pendens" status on my house because of the foreclosure - will that be lifted since the trustee is taking it rather than the bank going to a sheriff sale??? Because unless it is, I don't think it will sell for very much above what I owe on it. As I understand it, lis pendens status cuts down the pool of potential buyers too much (something about the title search preventing anyone from getting a mortgage on it thus leaving only investors/cash buyers), plus really weakens negotiations (the buyer knows they can just wait and try to steal it at auction so why give a decent offer?).

                I should also add - I don't actually know for sure that the bank is "yielding" to the trustee and not pursuing their foreclosure. That itself is still something I don't have a real answer for and do not understand. I don't think they got a judgement yet, thus no date of sheriff sale either, but I was wondering how that would factor in if it was happening too.
                Well, when you're married, you'll understand the importance of fresh produce.

                Comment


                • #9
                  Originally posted by kw1025 View Post
                  The trustee will not want to take your house. You have will have the option to "buy Back" the equity in your house which exceeds the homestead exemption. Your attorney can arrange this. Example. Your house worth $100,00. You owe $50,000. You homestead exemption is $25,000 = you have $25,000. That $25,000 equity can purchased by you for sometimes 50%, or around $12,500 depending on how your market looks.
                  Thanks, I'm trying but I don't actually understand what you're saying...

                  How can I buy back my equity? Doesn't someone have to buy the house??? I have no money to buy it, or the equity, or even payback the 9 months I am behind on the mortgage :-(

                  Also the house is already in the process of being foreclosured.
                  Well, when you're married, you'll understand the importance of fresh produce.

                  Comment


                  • #10
                    Originally posted by KevFinnerty View Post
                    Yes (thanks), that is what I am hoping for, the best of the bad outcomes of my situation, I am losing the house no matter what but at least I may get something out of it.

                    Although my lawyer has told me that it is possible that there will not be any $$ for my exemption left over after the mortgage is paid off, the trustee takes a cut, and some kind of administrative fees are paid, and of course the creditors need to get a chunk too.
                    That's not how it works, if the house sells for over the mortgatge, the next person in line to get paid after the mortgage is paid is you. You would get your exemption amount BEFORE any trustee fees and payments to other creditors. The Trustee can't charge a fee on the exempted amount. Nor can the Trustee pay any other creditor (other than the bank that holds the mortgage) any amount out of the exempted funds. And if the Trustee attempts to use exempted funds to distribute to creditors, your attorney needs to fight them.

                    Case in point, my house had equity at the time I filed. But by the time they took out the 10% realtor fee, the equity was less than the exempted amount (I used federal). My attorney told me that the Trustee wasn't going to go after my house (she was right) because the Trustee would get nothing if it sold for the appraised value as she would have to give me the balance after the mortgage was paid off. And this would be without the Trustee taking out the Trustee fee.

                    Comment


                    • #11
                      KF

                      Helpmeout has explained the issues. A Trustee simply cannot seize exempt property if he does not pay to the debtor the full allowed exemption after payment of any liens or encumbrances. If the liquidation of the property will not produce sufficient funding to

                      1) pay all liens and encumbrances
                      2) pay all closing costs and commissions
                      3) pay the Trustee's percentage for payment of 1 & 2 AND
                      4) pay the debtor the full allowed exemption

                      The asset is burdensome to the estate and should be abandoned.

                      However, this leaves you back where you were before. . . losing the home to a foreclosure.

                      You may want to stipulate with the Trustee that he can sell the property so long as you receive $X out of it even if $X is less than your exemption. This way you get something instead of nothing as in a foreclosure, there most likely will not be excess proceeds to turnover to you. Understand????

                      Des.

                      Comment


                      • #12
                        Originally posted by helpmeout View Post
                        That's not how it works, if the house sells for over the mortgatge, the next person in line to get paid after the mortgage is paid is you. You would get your exemption amount BEFORE any trustee fees and payments to other creditors. The Trustee can't charge a fee on the exempted amount. Nor can the Trustee pay any other creditor (other than the bank that holds the mortgage) any amount out of the exempted funds. And if the Trustee attempts to use exempted funds to distribute to creditors, your attorney needs to fight them.

                        Case in point, my house had equity at the time I filed. But by the time they took out the 10% realtor fee, the equity was less than the exempted amount (I used federal). My attorney told me that the Trustee wasn't going to go after my house (she was right) because the Trustee would get nothing if it sold for the appraised value as she would have to give me the balance after the mortgage was paid off. And this would be without the Trustee taking out the Trustee fee.
                        THANKS. What you are saying is how I originally thought this was supposed to work, yet when I discussed this with 2 different attorneys prior to filing BK both of them said that the Trustee takes his fees out BEFORE my exemption and that in their experience there probably would not be anything left because the Trustee and various administrative fees would be run up to exorbitant amounts. I decided to risk it anyway since I thought it was better than foreclosure.
                        Well, when you're married, you'll understand the importance of fresh produce.

                        Comment


                        • #13
                          Originally posted by despritfreya View Post
                          KF

                          Helpmeout has explained the issues. A Trustee simply cannot seize exempt property if he does not pay to the debtor the full allowed exemption after payment of any liens or encumbrances. If the liquidation of the property will not produce sufficient funding to

                          1) pay all liens and encumbrances
                          2) pay all closing costs and commissions
                          3) pay the Trustee's percentage for payment of 1 & 2 AND
                          4) pay the debtor the full allowed exemption

                          The asset is burdensome to the estate and should be abandoned.

                          However, this leaves you back where you were before. . . losing the home to a foreclosure.

                          You may want to stipulate with the Trustee that he can sell the property so long as you receive $X out of it even if $X is less than your exemption. This way you get something instead of nothing as in a foreclosure, there most likely will not be excess proceeds to turnover to you. Understand????

                          Des.

                          Thanks, yes I understand now - FINALLY someone is explaining this stuff in a way that actually makes sense (and it matches how I originally thought this was supposed to work). I got totally different advice on this when I asked (2 different attys).

                          Being a cynic I have a feeling that it is possible that the Trustee/my atty may at some point "advise" me that a sale is possible where I can get something like $5k as exempt which is better than nothing (& somehow "legally" make extra $$ on this for themselves). Not saying that they would do that, but I will have to see how this goes.


                          This leads me to ask a different question.

                          Suppose (for whatever reason) the Trustee does NOT take/sell the house, and that it goes to foreclosure by the bank.

                          Then suppose that the foreclosure/sheriff sale does go for MORE than what the bank is owed (which I think could be likely).

                          What happens to that excess money? How does it get rolled into my bk case, how does my exemption get factored into it, etc. And could my bk case get closed prior to that happening? In which case it would be even more confusing/messy???

                          Sorry for all the questions, but I think I have gotten better and more useful advice from this forum than I have from any attorneys.
                          Well, when you're married, you'll understand the importance of fresh produce.

                          Comment


                          • #14
                            Originally posted by KevFinnerty View Post
                            Suppose (for whatever reason) the Trustee does NOT take/sell the house, and that it goes to foreclosure by the bank. Then suppose that the foreclosure/sheriff sale does go for MORE than what the bank is owed. . . What happens to that excess money?
                            I cannot say for sure as I do not know how your State works.

                            In my State the excess proceeds are turned over to the Superior Court. The Court then sends a notice to all in the chain of title, including the former property owner. The notice advises the recipients that if they have a claim to the $$ they must respond by a specific date. The proceeds are then distributed to those who claim (and can prove) an interest, usually a 2nd lien holder, if any. If there is no 2nd lien holder or other encumbrances the excess proceeds are turned over to the former property owner.

                            I suspect that should there be excess proceeds and you do not have a 2nd, the $$ would go to you, up to the amount of your allowed exemption. Anything over that would go to the Trustee.

                            Des.

                            Comment


                            • #15
                              Originally posted by despritfreya View Post
                              I suspect that should there be excess proceeds and you do not have a 2nd, the $$ would go to you, up to the amount of your allowed exemption. Anything over that would go to the Trustee.
                              Thanks Des. That makes sense to me.
                              Well, when you're married, you'll understand the importance of fresh produce.

                              Comment

                              Unconfigured Ad Widget

                              Collapse
                              Working...
                              X