Not paying mortgage, possible divorce, tax penalties discharged and other questions

[womanonfire]

I see that I may have missed responding to flashoflight. And thank you for posting this by the way. I caused me to actually research what you posted.

If you go pro se and when it goes bad:

I think you meant if it goes bad. Of course it can. But it may not.

1) You cannot withdraw out of the chapter 7, especially since the trustee will have a payday with the non-exempt equity.

You can most certainly convert a 7 to a 13. This may help you and others: https://lundinonchapter13.com/Conten...kToFN_325.01_5.

Also according to alllaw, you can convert if "Your property is worth more than you thought. If you can’t exempt your property because you underestimated its worth, you might want to convert to Chapter 13 because it lets you keep your property. https://www.alllaw.com/articles/nolo...7-13-case.html

Another article to quote: "Chapter 13 bankruptcy is also advantageous for those who have significant ‘non-exempt’ assets. For example, in North Carolina a married couple filing jointly can protect up to $70,000 of equity in their home. If a married couple has filed a chapter 7 mistakenly believing they have little or no equity in their home only to find out there is $90,000 of equity, they may convert to a chapter 13 and pay out the value of that non exempt equity ($20,000) over time rather than having the trustee sell the home to satisfy creditor’s claims. Please note that in this example the couple would also have the option of paying to the trustee the $20,000 (or a negotiated sum) in a lump sum payment to prevent the home being sold." https://www.natlbankruptcy.com/conve...13-bankruptcy/

How in the heck doesn't anyone come up with $20,000 in a bankruptcy though? Things that make you go hummm...

2) Your case will pique the interest of the trustee and he will take every last non-exempt dime from you even if it takes years (8 months is certainly not a problem) vs. the other $70 simple pro se no asset chapter 7 that he processes in a few minutes. He will hire his own law firm out to pursue your non-exempt money and rack up legal fees. The trustee is an adversary who will have a payday at your expense and will not help you. Since you are not represented, it will be even easier for him.

That was my original thought and the entire reason that I wanted to file a chapter 7. If the Trustee sees that she might be able to to reduce the debt owed to the mortgage creditor through my claims of recoupment, to free up money to pay off the other creditors, then awesome!

Also you assume way to much. Yes the Trustee has a job to do but not all are out to rape you. And the judge doesn't always rule in their favor and neither do the appeal courts. Please have a look at this complicated pro se case whereby they won against the Trustee. https://www.govinfo.gov/content/pkg/...cv-00361-0.pdf

3) Many/most BK lawyers will not take somebody else's case including pro se at any price. If they do, they will charge you a lot more than if let them prepare the initial bankruptcy petition.

Well that is even more reason to study and work hard right?

Pro se/Upsolve is great for simple chapter 7 cases. Your case is not even close to fitting that definition. Since you are not making housing payments, perhaps those funds can be redeployed to pay for a lawyer. Most people use the funds that would be spent on monthly debt payments to raise the funds for a lawyer.

I'd rather spend the money on taking care of myself during this stressful time thank you very much.

[justbroke]

It's a lot of work and I see, and respect, all the work that you've done; a lot-of-work.

[womanonfire]

Sorry to hear that about your attorney. It's a prime example of how an attorney can actually screw you up too. Been there and done that seen case after case where I actually 🤦♀️. I would love to see the case. If it is a RESPA case, I probably already know about it.

For you, I think that RESPA, TILA, RICO and other issues probably do belong in the Federal District Court (the Bankruptcy Court is a division of the District Court).

Not if they are claims in recoupment in response to whoever files the claim in this case. Heck, the entire reason I'm filing bankruptcy is because of RESPA violations and servicers other actions.

Recoupment is the diminution or a complete counterbalancing of the adversary’s claim based upon circumstances arising out of the same transaction on which the adversary’s claim is based. Such a defense is never barred by the statute of limitations so long as the main action itself is timely.

There is not a ton of case law out there because in most situations I doubt people have such claims. You think most bankruptcy attorneys even ask, especially since most are not litigators?

[womanonfire]

The way most people who litigate in bankruptcy without pro bono or contingency fee is to get a cash gift from family or friends that pays for the retainer. Doing it on your own as a bankrupt debtor doesn't happen unless you have access to wildcard exemptions.

I'm not sure what that means but I have equal access under the law and access to the same exemptions that I would otherwise have if I were represented.

If you can't get past the issue to raise the money for the retainer, I think it's time to just concentrate on the ch13. It does no good to keep spending energy on something that is destined to lose because you can't raise the money for a retainer fee. I also wouldn't waste any more time pro se on this with the extremely low probability of success of winning without counsel.

No way in hell am I letting go of these claims. I know exactly what the risks are and I'm bringing them with an attorney or not. And that is just how it is. Win or lose, they will see the light of day in claims of set off and recoupment. But thanks for the advice anyway!

[justbroke]

womanonfire mine had RESPA and TILA issues and the attorney I had was as good as and maybe more successful (in Florida) than Max Gardner's group. Only he was too aggressive, actually talked backed to judges and got angry at them... in open court. (The claim is that his permanent disbarment was for "loudly lecturing" judges in session.) He was sanctioned by several judges and hated by all the banks. It all culminated in his summary, and permanent, disbarment by the Florida Supreme Court. It caused 2 additional years of uncertainty in the Florida non-bankruptcy (and bankruptcy) courts. He was very good at pinpointing the issues, was successful in many cases (or achieved a good outcome for his clients), but had a temper and the impatience of a homeowner; which didn't sit with many judges.

(I finally gave up because it was exhausting and after the issues with the disbarment, I just gave up and made a deal with the lender.)

For you, I think that RESPA, TILA, RICO and other issues probably do belong in the Federal District Court (the Bankruptcy Court is a division of the District Court).

[flashoflight]

The way most people who litigate in bankruptcy without pro bono or contingency fee is to get a cash gift from family or friends that pays for the retainer. Doing it on your own as a bankrupt debtor doesn't happen unless you have access to wildcard exemptions. You should be trying to raise funds as the #1 task. If your case is actually strong, you can convince the lawyer to take it on a partial contingency fee or better. If you can't get past the issue to raise the money for the retainer, I think it's time to just concentrate on the ch13. It does no good to keep spending energy on something that is destined to lose because you can't raise the money for a retainer fee. I also wouldn't waste any more time pro se on this with the extremely low probability of success of winning without counsel.

[womanonfire]

My case is not really a foreclosure case even though I stopped paying them. I have not paid them in 16 months but they have not even picked up the phone and called me. It a fraud, possibly RICO, RESPA, TILA, breach of contract, conversion, HPA, and some other things. It's suppose to come up in servicers bankruptcy in the fall.

[justbroke]

I like Max Gardner. I used to read all of the articles all the time. I had a foreclosure-related case that dragged on for years but I was represented. My attorney ended up getting disbarred and rebuked by the Florida Supreme Court. What an interesting period that was (2008-2014).

[womanonfire]

UPDATE: Well I met with an attorney last Thursday, sent her assistant a bunch of stuff before hand at the assistants request since my case is unique. I was referred to them by Max Gardner who specializes in mortgage related issues. They are pretty big with offices everywhere but apparently they are not litigators. I think they hire out, see below. But she did say that a chapter 13 might be cheaper because of what I wanted to do in a chapter 7. She said they are a mill and do not handle cases like mine. She didn't even look at my claims, so I wasted my time.

Here is the problem with being pro se and especially if you have had an attorney withdraw; no one takes you seriously but even worse, as in the instance above, some want even bother to look. My case is being cited in Malloy's Banking Law and Regulation 2019 update. Of course I don't have the huge chunk of change to toss out for that book so I don't know what it says. But interestingly enough, when I did some more Googling, my case has been cited by this Ohio attorney in a case in Indiana and one in Florida. So I looked him up to see if he could help me and he referred me to the same damn firm I met with on Thursday! I replied back that I had already met with them and they wouldn't even peek at my claims so hopefully he can help. Here is a link to their firm in case anyone is interested. https://www.dannlaw.com. There is some good stuff on the site and I think they are licensed pretty much every where.

So yesterday, Sarah Bolling Mancini, an attorney with Atlanta legal aide replied to an email that had I sent weeks ago and we talked on the phone for a good 30 min. We both knew before hand that I didn't qualify for her services, but she was kinda enough to spend the time with me anyway. She really brought me down from my cloud explaining that a chapter 7 would be risky and went on about how conservative the circuit Judges are. Georgia is a creditors state, not a debtors.

Anyway, I now think a chapter 13 is going to provide me the most protection if I have lots of home equity. So I'm going to open a new thread on that and what I propose to do saw ya'll can call me crazy! Mrs. Mancini is reviewing some of my claims and is going to see if she can fit me with an attorney. She also admitted I was extremely knowledgeable about the industry. I hope that I impressed her because I really look up to her.

I made an appointment with another attorney who handles complex cases so I will be meeting with him in two weeks. And I'm going to be prepared to go pro se if I need to. I mean I have the complaint written up, I have all the case law winners and losers and all the arguments ready to go. This amounts to what will be almost 2 years of researching my case by the time I file. I have angles out the yin yang but what I really need right now are options!

[justbroke]

Non-Mortgage includes the cost to upkeep the home including utilities. It is a monthly value. According to the Executive Office of the United States Trustee (OUST) they feel that the "following expenses are covered by the [non-mortgage localized expense] and may not be counted elsewhere":

• maintenance and repair;
• homeowner association dues;
• condominium fees;
• gas,
• electricity,
• water,
• heating oil,
• bottled gas,
• trash and garbage collection,
• wood and other fuels,
• septic cleaning;
• basic telephone and cell phone service.

On the Means Test, if you put more than the non-mortgage value (or your expense listed above are, when added together more than that non-mortgage value), then the case Trustee or the United States Trustee (UST) will likely challenge you. They especially get grumpy when you put anything on the line for "telecommunication" service (usually when that exceeds $100).

[womanonfire]

I fixed the URL. I was trying to make it easier.

USTP Means Test Allowances: https://www.justice.gov/ust/means-testing

USTP Means Test GEORGIA Housing Allowances (Cases Filed On or After November 1, 2019)**: https://www.justice.gov/ust/eo/bapcp..._charts_GA.htm


** Note: these values change over time and the link posted will like no longer be valid for cases filed after April 2020

I live in the most expensive county to live in in GA ha! What is a non mortgage? Is that like a week to week or hotel?

[justbroke]

I fixed the URL. I was trying to make it easier.

USTP Means Test Allowances: https://www.justice.gov/ust/means-testing

USTP Means Test GEORGIA Housing Allowances (Cases Filed On or After November 1, 2019)**: https://www.justice.gov/ust/eo/bapcp..._charts_GA.htm


** Note: these values change over time and the link posted will like no longer be valid for cases filed after April 2020

[womanonfire]

Yes, you would definitely use the Mortgage/Rent value for your specific County under the USTP Allowances. The cap is the rate for your county under those https://www.justice.gov/ust/eo/bapcp..._charts_GA.htm"]USTP Allowances For Georgia (cases after November 1, 2019)[/URL]**. The USTP allowances are based on the IRS Financial Collection Standards.

For Georgia the Mortgage/Rent expense can vary from $684/month in Clinch County to over $1,450 in Fulton County (and even more in some others) for a 2-person household.

Your Means Test is arbitrary and looks backwards, not forwards. This is what causes issue. However, your Schedule J (Expenses) should look forward. So you'd complete the Means Test as if you still had that debt. You would complete Schedule J looking forward (without that expense). Therefore, on Schedule J you would put the Mortgage/Rent limit for your county, unless you are already in a new rental unit, paying the new amount, and then you can put that amount (even if it exceeds the limit). But beware that exceeding the limit may peak the curiosity of the United States Trustee (UST) if it's significant or you're a borderline Chapter 7.

** Note: these values change over time and the link posted will like no longer be valid for cases filed after April 2020

Thanks! The link is not working though!

[justbroke]

Yes, you would definitely use the Mortgage/Rent value for your specific County under the USTP Allowances. The cap is the rate for your county under those USTP Allowances. (Select cases after November 1, 2019) The USTP allowances are based on the IRS Financial Collection Standards.

For Georgia the Mortgage/Rent expense can vary from $684/month in Clinch County to over $1,450 in Fulton County (and even more in some others) for a 2-person household.

Your Means Test is arbitrary and looks backwards, not forwards. This is what causes issue. However, your Schedule J (Expenses) should look forward. So you'd complete the Means Test as if you still had that debt. You would complete Schedule J looking forward (without that expense). Therefore, on Schedule J you would put the Mortgage/Rent limit for your county, unless you are already in a new rental unit, paying the new amount, and then you can put that amount (even if it exceeds the limit). But beware that exceeding the limit may peak the curiosity of the United States Trustee (UST) if it's significant or you're a borderline Chapter 7.

** Note: these values change over time and the link posted will like no longer be valid for cases filed after April 2020

[womanonfire]

I understood what you meant, but walking away from the house "could" leave you with excess disposable monthly income (DMI) pushing you into a Chapter 13. Unless and until an attorney sits down and goes through all your numbers, it's difficult to guess about whether there would be enough money left after sale to recoup your exemption. It's certainly an additional outcome, and I'm trying to prepare you for other possible outcomes. Whether you can file a Chapter 7 will depend on your DMI, and if the United States Trustee (UST) pokes around and sees that you're walking from the house, that "could" create excess DMI (no mortgage payment).

I think I found a solution to this problem based on the information in this link below. Since I want to walk away from the house, I should use the rent rate on my schedule J which in my case, would be higher than my what my mortgage payment was. Rent is crazy high here!

But I also believe there is a cap, is that correct?

https://www.lawyers.com/ask-a-lawyer...e-1550212.html - Interesting how the attorneys do not agree. Just another one of things that make you go

Thank you all for all of your help here while I try to figure this out! It means so much!