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Dazed and Confused

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  • Dazed and Confused

    Any help or advice would be greatly appreciated.

    Filed for BK,originally 7 on 09/15/2010. Went to an attorney that was recommended
    to us by another attorney who had done quite a few real estate closings I was
    involved with. Real estate is the primary reason my wife and I are in this mess.
    Anyway, I did also speak to another attorney (as a "second opinion" if you will) but
    we decided on the one we are currently with. The first red flag was he brought in his
    paralegal whom he stated had worked for a trustee and knew a lot of the ways and
    means of the trustees. Ok, but he let her do most of the talking in our meetings.

    Well our car was repossesed and the attorney decided we should file for 13 to
    get the car back and possibly our primary residence. The trustee filed his objections
    to the conversion. His allegations were as such:

    I had retained ownership in a LLC that had 4 properties. I produced paper work
    signed and notarized showing where I was bought out of this company in Aug.2009.
    Therefore I had no ownership in any of these properties. The LLC is also dissolved.

    I have an agreement stating that I owned property with another partner but
    I was unable to make payments since late 09/early10 and the statement just states
    that I would resume payments when I could. To date I have not been able to make any
    payments on said property. So technically I guess I do own 1/2 of it.

    He claims I sold off some stock,which I did prior to filing, and he did not know the
    balance left in my accounts since the time of filing. $100 total if that and I produced
    the statements stating as such.

    Also on my 09 tax return(prepared by a CPA) there's a "distribution of $47K in
    a LLC I had set up to originall be a real estate holding. I had 4 of these LLC's and
    none of them ever came to fruition or had any earnings. This particular LLC that
    $47K was a loan and it was canceled and forgiven. I produced the paperwork
    attesting to such. Why it was marked a s a distribution is beyond me and I have
    told my attorney to call my CPA.

    My attorney in court on the day of our conversion sounded like a whimpering
    puppy! He just did not sound or appear confident when I was confident with what
    I produced and so was he when we met the day before court. Needless to say we
    did not get the conversion.

    Now Mr.Trustee is objecting to a discharge for our 7!!

    Any additional questions you amy need answered please let me know. Any advice
    would be greatly greatly appreciated.

  • #2
    From what you have posted. . .

    A. The Trustee questioned your ownership in a LLC that, at one time, held title to 4 properties. You produced documentation showing that, back in August, 2009 you sold your interest in the entity. To that I ask:

    1. Did you disclose the ownership interest on question 18 of the Statement of Financial Affairs?
    2. Did you disclose the sale (transfer) of your ownership interest on question 10 of the Statement of Financial Affairs?

    B. The Trustee questioned your partnership interest in property to which you responded that you let it go since you could not make payments. (I’m paraphrasing). To that I ask:

    1. Is your name on the title to the property? If so, did you list it in Schedule A.
    2. Did you list the partnership interest on Schedule B?
    3. Is there any equity in the property?

    C. The Trustee question the sale of stock and the amount still held in a brokerage account. To that I ask:

    1. Did you list the brokerage account with a current balance on Schedule B?
    2. Did you list the sale of the stock on question 10 of the Statement of Financial Affairs?
    3. How much $$ are we talking about and when and what did you do with the $$?

    D. The Trustee questioned some distribution you took ($47K) from an LLC in 2009. You state that it was not a cash distribution but, instead, was the amount of a loan that was forgiven. I have no questions on this one except that you need to get verification of the loan and its cancellation.

    Your Trustee is opposing the conversion. More importantly, he is also seeking a denial of your Discharge under, I will presume, several sections of 11 USC 727:

    (a)(3) - debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained. . .

    (a)(4)- the debtor knowingly and fraudulently. . . made a false oath or account.

    (a)(5)- debtor has failed to explain satisfactorily. . .any loss of assets or deficiency of assets to meet the debtor’s liabilities.


    The 727 issue is very serious. You need to sit down with your attorney (or a new attorney who know how to deal with 727 issues) and go through each and every allegation and fully and completely respond with documents, documents, documents. If your Schedules have not fully disclosed all information both as it relates to assets and the required information for the Statement of Financial Affairs you need to fully and completely amend them.

    Please keep us posted on your progress.

    (By the way, my questions are not necessarily posed to be answered - unless you want to. They are posed as you need to start thinking like a Trustee as it relates to what they want to see - full and complete disclosure, disclosure, disclosure.)



    • #3
      Des, I can not thank you enough for the clear and concise answers. I am going
      over your response so I can completely take it in and understand fully what you
      are saying and asking.

      Thank you so much for taking the time to respond to me.


      • #4
        Just want to say two things:'
        Des is one of the 'good guys' who always seems to respond fully and thoughtfully to all of our legal issues. Fifty cheers for Des!
        Second, I find myself in a similar situation in re the trustee going after things that aren't there yet letting assets that I really did have be abandoned so that a creditor could take them for peanuts. Has anyone ever filed an AP against a trustee????


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