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Meeting lawyer on Monday

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  • Meeting lawyer on Monday

    About 10 years ago we had a home free and clear, in New York, I removed myself as an owner, my wife took a mortgage out to invest in business.

    I was not on the loan or deed etc.

    Due to med bills she fell behind and the bank started a FC around 2010, we fought it in court since then but have exhausted that avenue.
    set to sell 9/6.

    the house is worth at auction $350?, the judgement has accumulated to about $650

    Here's where it gets complicated, Dec 2013 she rented the house we moved to FL.

    Same tenets which have lease until next summer.

    She has no other assets (except in Fl she had to be on the deed not the mortgage) but that is exempt property.

    She has no other debt.

    I think she can qualify for a 7 two ways.

    list the house as a non consumer debt since it's been a rental property for almost 5 years.

    her income is $600 month (last 6 months)
    plus SS $750
    My income is $6700 a month
    plus SS $1100

    total household expenses are $3100 a month

    So I contribute the difference of about $1600

    The balance of my income as a non filing spouse would not be included under the marital adjustment part form 122-a sec 4

    The FL threshold med income is $55,344

    So if I'm understanding this she can file either way


    Are there other issues we need to discuss with our lawyer on Monday.

    Thanks in advance for any input

  • #2
    If you can truly list the home as a business asset then I believe that you would be able to file a non-consumer case. I personally filed a non-consumer and used my rental property debt. The problem is that some courts look to the original mortgage (and riders) to determine whether the property was initially purchased as a primary residence. This problem is too fact-specific and too District-specific that I couldn't even being to tell you whether or not any amount of leasing a property purchased as a primary residence would count.

    As for filing as a consumer, she would just need to qualify for a Chapter 7 based on the Means Test. At first glance, it would appear that she is well below the median income and would qualify under the Means Test.

    What you listed here is exactly what you need to convey to your attorney. They can get into the details and then come up with the best way to proceed.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog

    I am not an attorney. Any advice provided is not legal advice.


    • #3
      Well I think the issue being purchased as residence vs investment property may not apply because the mortgage was not a mortgage to buy a home but to take equity out of an existing property for a business purpose so that may resolve that issue.

      One other point, I assume she will file the beginning of Sept a few days before scheduled sale.

      That will stop the sale for a shot time,

      I assume she can continue to collect the rent until the 341 wherein I assume the UST will ask those payments to go to them.

      She will file in Jacksonville not sure how soon the 341 will get scheduled?

      So maybe 1 or 2 more rent checks.



      • #4
        Whether she can collect and keep the rents, and whether the Trustee will want the rents, is also a fact-specific matter. By that I mean to say that some mortgages, especially investment loans, may include an "assignment of rents" clause. You indicate that you didn't have a mortgage on this specific property but that you did, in fact, take out a loan used for business purposes. I agree that may resolve the issue because the proceeds were used for non-consumer purposes.

        In Florida, 341 Meeting are typically scheduled to be held within 30-45 days of filing. The real question will be whether your specific panel Trustee will be interested in the property and/or seek to collect rents. You just never know who you're going to get.
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog

        I am not an attorney. Any advice provided is not legal advice.


        • #5
          no such clause, thank God, been collecting for years an and the FC attorney's knew it.

          I had no mortgage originally when I bought the house


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