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After discharge now trustee wants house

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  • After discharge now trustee wants house

    I was discharged in April, I kept my house but did not reafirm. Trustee is now questioning my homestead legality and wants to sell the house. If he is successful at getting a judge to agree -my question is: can I stop making my payments and move out? There's at best 20k in equity so he's going to get it all. Houses sell SLOW in my area and could take a year or more to sell. I dont see why I should have to keep making payments/insurance/heat etc..

  • #2
    You need to be more definitive. Did the Trustee file an Objection to your claimed exemption? If so, when and why? Does he think there is equity in the home over the exemption amount? We need details.

    In essence, yes you could stop making payments however, in theory (I have never seen this happen), the Trustee could try to surcharge the homestead exemption (if there is any) as a result in any diminution of value to the estate.

    Edt. I looked at your prior thread. I guess you were not able to show that you had not abandoned the property based upon the cell phone records. You will want to check with a local attny but, if the Trustee is going to take the home and there is no homestead, I see no reason for you to continue to service the loan. I have a case right now where my client stopped paying the mortgage months ago as the Trustee is going to take the property. No problems so far.

    Des.
    Last edited by despritfreya; 09-09-2012, 12:51 PM. Reason: Add comments

    Comment


    • #3
      more info..

      Yes he did file an objection but not until after the discharge. He believes that I do not qualify for the homestead because I moved out of state after filing, thereby making the house a asset he has total ownership of. My filing was in excess of $200k and the most in equity would be $30k. My attorney says not to worry, that the 720 +180 rule would apply, and from the what I read of that - yes it would. The house is still my only home. I personally do not rent a home anywhere else, but rather live at times in another state at a company paid for housing.

      Originally posted by despritfreya View Post
      You need to be more definitive. Did the Trustee file an Objection to your claimed exemption? If so, when and why? Does he think there is equity in the home over the exemption amount? We need details.

      In essence, yes you could stop making payments however, in theory (I have never seen this happen), the Trustee could try to surcharge the homestead exemption (if there is any) as a result in any diminution of value to the estate.

      Edt. I looked at your prior thread. I guess you were not able to show that you had not abandoned the property based upon the cell phone records. You will want to check with a local attny but, if the Trustee is going to take the home and there is no homestead, I see no reason for you to continue to service the loan. I have a case right now where my client stopped paying the mortgage months ago as the Trustee is going to take the property. No problems so far.

      Des.

      Comment


      • #4
        Originally posted by funkley2 View Post
        Yes he did file an objection but not until after the discharge.
        Wait a minute. Unless there was an allegation that the exemption claim was fraudulently asserted, the Trustee had until 30 days after the 341 meeting was "concluded" to file the objection or request an extension of time to file the objection. Did he continue the 341 meeting? Did he request an extension within the 30 days? Alternatively, if you did not initially claim the exemption but later did an amendment, the 30 days runs from when the amendment was filed. (See Rule 4003(b))

        Please explain how the Trustee filed the objection after you got the discharge. Either he continued and continued and continued the 341 or got a court order extending the time to object. If he did not do one or the other the objection is not timely.

        Des

        Comment


        • #5
          correct time line

          Sorry for the confusion - its been so long I lost track of the schedule. He did object before the discharge. objection was 2/2012. discharged 4/2012. I went to another state for work and lived their part time. Again the 720/180 rule works in my favor.

          Originally posted by despritfreya View Post
          Wait a minute. Unless there was an allegation that the exemption claim was fraudulently asserted, the Trustee had until 30 days after the 341 meeting was "concluded" to file the objection or request an extension of time to file the objection. Did he continue the 341 meeting? Did he request an extension within the 30 days? Alternatively, if you did not initially claim the exemption but later did an amendment, the 30 days runs from when the amendment was filed. (See Rule 4003(b))

          Please explain how the Trustee filed the objection after you got the discharge. Either he continued and continued and continued the 341 or got a court order extending the time to object. If he did not do one or the other the objection is not timely.

          Des

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