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Might have too much home equity

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  • Might have too much home equity

    I'm new here but have been lurking for about two weeks. Credit card debt got out of control over a long period of time, 15-20 years. Just cant pay anymore, I tried, I honestly did. Met with an attorney earlier this week. He requires a fair market value be done on my home. Will be filing joint with my wife. The assessment is being done next week, crossing my fingers for a low assessment, I think it will be close to the allowed exemption. My question is, if its only a few thousand over, would the trustee accept the difference and allow the chapter 7 to go through? Thanks. This forum is an awesome resource!!!

  • #2
    The Chapter 7 doesn't stop the discharge because there are assets to administer. The discharge will come when there are no objections to discharge based on a disqualifying reason. Some examples of those reasons include that you just make too much, can pay creditors a dividend in a Chapter 13, or fraud. Most people have no issue with the discharge (95% sail through without issue).

    As for any exposed non-exempt equity, you can negotiate with the Trustee if it comes to that. Depending on the Trustee you may be able to work out a "short" payment plan for the non-exempt equity and you may even be able to negotiate the amount. The negotiations typically happen because there is a "cost" to the Trustee to recover equity from a home.
    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
      Thanks for your input, I figured a few grand wouldn't be a problem. I just made the decision with my last pay to stop paying credit cards which will allow me to afford attorney feeds and bumps in the road like that. Another bump in the road, maybe more than a bump. My parents placed my put my sister and myself on the deed to their home in 2008 for estate planning. It's clear in the paperwork they will reside in the home until their death or sale and that we have no control over the property. My mom passed about 2 years ago my dad is 76. He pays all utilities and taxes. We've received no benefit whatsoever. I've researched and found many courts ruled Bare Legal and that the trustee could not include it in the estate. Also, my other sister not included on the deed, is mentioned and it states any sale of the property is to also be shared with her. The property has no mortgage and is roughly 50 to 60 grand in value


      • #4
        I would be careful with the "other" courts and not your particular court. The question would certainly come down to how the title is held (living estate or joint tenancy with rights of survivorship); it reads as though it's a life estate. I had to deal with this myself, but it was resolved before I filed (and I didn't have any rights to the property as it passed to my parents). I would make sure that I hired an attorney, soon, and determine just how this will play. See In re Mrozik, No. 08-12533 (Bankr. N.D. Cal. Apr. 18, 2014). In Mrozik, although in California, the Trustee kept the bankruptcy estate open to wait for the beneficiary of the life estate to pass. I found that totally morbid, but I see the viewpoint from the court. A life estate has value. The question is whether you can exempt the value.

        That's about all I know about this as it was an issue for me as well.

        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
          Its a joint tenancy with rights of survivorship. If the estate is left open does that mean the bankruptcy is not discharged? I had a consultation with an attorney earlier this week and I gave him a copy of the document. He said he needs to look into it. I also gave him a Pa. court decision that ruled the trustee could not use this property as part of the estate. Stewart vs Schubert. Very similar situation to mine. It was a 2008 decision but its something to at least go on. Right now i'm getting all the info together to file and my own home will have a fair market appraisal next week. I'm sure there is a way to work it all out. Bottom line, if I kept paying on the cards I'd have no money to purchase necessities or mortgage. Family of five with a 68,000 income does not cut it..


          • #6
            A bankruptcy discharges regardless of the administration of assets (see my prior post). I asked about how title was held (join tenancy w/ survivorship, or a life estate) because I don't know how equitable interest is held or how it is dealt with in Penn.

            Hopefully you will find an attorney that understands the underlying issue.
            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.


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